SC refuses pilot’s plea against allowing AI to fly non-schedule flights with middle seats occupied

The application sought modification of May 25 order on the ground that there has been spike in number of Covid-19 cases and even if a single flight operates with full occupancy then many other passengers and crew are likely to get infected.

The Supreme Court Wednesday refused to entertain a pilot’s plea seeking modification of its order which allowed Air India to fill the middle seats while operating its non-scheduled flights to bring back Indians stranded abroad up to June 6.

An intervention application was filed by Deven Kanani seeking modification of May 25 order on the ground that there has been spike in number of Covid-19 cases and even if a single flight (international /domestic) operates with full occupancy then many other passengers and crew are likely to get infected.

The top court said it does not want to add to the confusion after having passed order earlier this week.

A bench of Chief Justice S A Bobde and Justices A S Bopanna and Hrishkesh Roy, while refusing to modify its order said that whatever they (Centre and Air India) have done, howsoever bad it might be, let that interim arrangement continue for ten days.

Advocate Abhilash Panickar, appearing for the pilot, said that DGCA guidelines on social distancing should be followed and middle seats in the aircraft should be kept vacant.

The bench asked Panickar to approach the Bombay High Court if he wanted to raise any other issue related to the matter.

Solicitor General Tushar Mehta, appearing for the Centre and Air India, said that an expert committee has been appointed to look into the matter.

He said that health of citizens is paramount and government would take every possible steps to protect them.

The bench said that it trusts the expert committee and hope that it would take into all relevant considerations.

It told the petitioner that the court has asked the Centre and Air India to bring back the stranded Indians and they are doing it.

Now, let the High Court decide the issue finally, the top court said and gave the liberty to the pilot to withdraw the application.

The counsel for the petitioner then agreed to withdraw the application.

The pilot, on whose plea the high court has sought replies from the Centre and Air India, said in his application before the top court that he is seeking modification of May 25 order as it was an ex-parte order obtained by suppression and misrepresentation.

On May 25, the top court had allowed Air India to keep the middle seats occupied while operating its non-scheduled flights to bring back Indians stranded abroad up to June 6 while observing that the government should be more worried about the health of citizens rather than the health of commercial airlines.

It had said that after June 6, Air India will operate its non-scheduled flights in accordance with the interim order to be passed by the Bombay High Court.

The Centre and Air India had moved the apex court challenging the interim order of the High Court by which it had asked the national carrier to operate its non-scheduled flights by keeping the middle seats vacant.

“We are of the considered view that the petitioner – Air India should be allowed to operate the non-scheduled flights with the middle seats booking up to June 6, 2020. However, after that the Air India will operate non-scheduled flights in accordance with the interim order to be passed by the Bombay High Court thereafter,” it had said.

The top court had said that it would consider it necessary for the High Court to arrive at a prima facie finding regarding the safety and health of the passengers qua the COVID-19 virus, whether the flight is a scheduled flight or a non-scheduled flight.

“We make it clear that the Director General of Civil Aviation is free to alter any norms he may consider necessary during the pendency of the matter in the interest of public health and safety of the passengers rather than of commercial considerations,” the apex court had said in its order, while disposing of the appeal.

The high court had on May 22 sought response from Air India and the Directorate General of Civil Aviation (DGCA) on a petition of Kanani, who had claimed that the airline was not following safety measures for COVID-19 while bringing back Indians stranded abroad.

The High Court had directed Air India and DGCA to file affidavits clarifying their stand and posted the petition for further hearing on June 2.

The pilot, in his plea before the high court claimed that a circular issued by the Centre on March 23, 2020 laid some conditions to prevent the spread of COVID-19 while bringing back Indians stranded abroad due to the pandemic.

However, the condition pertaining to keeping the middle seats empty was not being followed by the Air India, he said in the plea.

Kanani had submitted photographs of an Air India flight operated between San Francisco and Mumbai where all seats were occupied.

The court had also allowed Kanani to amend his petition to challenge the circular of May 22.