Delhi HC Takes Suo Moto Cognizance Of “Stubborn Reluctance To Wear Masks Properly: On Flight And Issues Guidelines”

It is quite refreshing, rejuvenating and remarkable to learn that the Delhi High Court has just recently on March 8, 2021 in a latest, landmark, laudable and learned judgment titled Court On Its Own Motion vs Directorate General of Civil Aviation & Ors. in WP(C) No. 3184/2021 has taken suo-motu cognizance of what it described as an “alarming situation” on an Air India flight bound towards Delhi from Kolkata on March 5. It has issued a slew of directions to the Directorate General of Civil Aviation (DGCA) and commercial airlines in the country with respect to in-flight Covid-19 protocol. In the order passed by Delhi High Court Justice C Hari Shankar, he notes that “though all the passengers had worn masks, many passengers had worn the masks below their chin and were exhibiting a stubborn reluctance to wear their masks properly.”

To start with, the ball is set rolling by first and foremost pointing out in para 1 by a single Judge Bench of Justice C Hari Shankar of Delhi High Court that, “The Court is constrained to pass the present order because of an alarming situation which was witnessed, by the Court, during the Air India flight from Kolkata to New Delhi on 5th March, 2021.”

On a serious note, the Bench then discloses in para 2 that, “It was noticed that, though all the passengers had worn masks, many passengers had worn the masks below their chin and were exhibiting a stubborn reluctance to wear their masks properly. This behaviour was seen not only in the bus transporting the passengers from the airport to the flight but also within the flight itself. It was only on repeated entreaties made (by me) to the offending passengers that they condescended to wear their masks properly. On the cabin crew being questioned in this regard, they stated that they had directed all the passengers to wear masks, but were helpless in case they did not comply.”

On a more serious note, the Bench then goes on to put forth in para 3 that, “To the perception of the Court, such a situation, in the present scenario, when the country is seeing a resurgence of COVID-2019 cases, after they had shown signs of ebbing, is completely unconscionable. Passengers in a flight are in a closed air-conditioned environment, and, even if one of the passengers suffers from COVID, the effect on other passengers could be cataclysmic. It is a matter of common knowledge that being within arm’s length distance of a COVID carrier, even if he is asymptomatic and is merely speaking, is more than sufficient to transmit the virus.”

On a most serious note, the Bench then puts forth in para 4 that, “Attempts were made, by the Court, to trace, from the internet, the latest guidelines of the Directorate General of Civil Aviation (DGCA), regarding the protocols to be followed by passengers undertaking domestic air travel. Unfortunately, the website of the Directorate General of Civil Aviation does not contain the latest guidelines, issued with regard to in-flight protocol to be maintained by the passengers and the crew. The guidelines available on the website of the DGCA – which, too can be accessed, only after an intrusive navigation through the site, are of 21st May, 2020. The Court has come across two news items, in different editions of the Times of India in August, 2020, specifically stating that the instructions of May, 2020, were subsequently altered, by relaxing them in some respects and making them more stringent in others. Relaxation was permitted by allowing, inter alia, meals to be served in flight, middle seats to be occupied, etc. At the same time, a news item in the e-edition of the Times of India, dated 29th August, 2020, titled “India’s new flying rules: No mask and SOP violation can land you in ‘no-fly’ list, contains the following recital:

“As per the latest development, the Directorate General of Civil Aviation (DGCA) has now asked airlines to put those passengers on the ‘no-fly list’ who violate the standard operating procedures (SOPs) or do not wear masks during a flight. This means, you will no longer be allowed to fly if you don’t wear masks or comply with the COVID related protocols.

Meanwhile, the government has also allowed airlines to resume in-flight meal services on domestic flights, and serve alcohol and hot meals on international flights, however, those being subject to certain guidelines. Therefore, from now on, passengers who intentionally don’t use a face mask, and poses a risk to other passengers, they will be put on ‘no-fly list’ by flight commander or the cabin crew after assessment. However, passengers will be allowed to remove facemasks if absolutely necessary and that too for legitimate reasons.

For the sake of clarity, the Bench then makes it a point to mention in para 5 that, “This Court does not intend to criticise, in any manner, the efforts made by the Governmental authorities, including the DGCA, in trying to deal with the COVID-19 pandemic situation, which has left everyone befuddled regarding the best possible manner to deal with the crisis. Sensitization of the citizenry has, however, to precede, not succeed, galvanization of the governmental machinery. Having put in place protocols to be followed by the public, in various exigencies, to mitigate the possibility of a COVID resurgence, if such a resurgence – which looms large as an ominous possibility as on date – is to be avoided, these measures would have to be strengthened.”

Furthermore, the Bench then also states in para 6 that, “This order merely seeks to achieve this objective, by lending some teeth to the instructions already in place, in the larger public interest.”

Most significantly and also most remarkably, what forms the bottom-line of this notable judgment is as stated most elegantly, eloquently and effectively in para 7 that, “The following guidelines are, therefore, issued, for immediate compliance by all airlines as well as by the DGCA:

(i) The DGCA is directed to reflect, forthwith, on its website, prominently, the instructions containing the guidelines and protocols to be followed by passengers and in-flight crew in domestic flights. This shall be reflected on the main website of the DGCA, without requiring the person accessing the site to navigate through various links to reach the instructions. The DGCA will ensure that prominence, to the instructions, or to the weblink through which they can, by a single click, be accessed, is accorded, by displaying them in a distinct and different font, blinking or otherwise, or by any other suitable means.

(ii) All airlines are directed to ensure that, along with the boarding pass, written instructions regarding the protocol to be followed by passengers in flight, including the measures that could be taken against them on failure to follow the protocols, are provided to the passengers. The passengers should also be duly sensitised regarding their responsibilities, to abide by said protocol, both before as well as after boarding the flight. The inflight announcements which, presently, merely require the passengers to wear masks at all times, should be modified to include a cautionary word regarding the penal action that could be taken against them in the event of default.

(iii) In-flight crew shall carry out periodical checks of the aircraft, in order to ensure that all passengers are complying with the protocol to be followed by them in flight, especially regarding wearing of masks. It is made clear that masks should be worn as directed by governmental instructions, covering the nose and mouth, and not worn merely covering the mouth or below the chin.

(iv) In the event of any passenger being unwilling to follow this protocol prior to the flight taking off, the passenger should be offloaded without delay. If a passenger, despite being reminded more than once in flight, refuses to follow this protocol, action should be taken against the passenger in accordance with the guidelines issued by the DGCA or Ministry of Health and Family Welfare, including placing the passenger on a “no-fly” regimen, either permanently or for a stipulated, sufficiently long, period.

(v) It shall be the responsibility of the in-flight crew to ensure strict compliance, by the passengers, with the aforesaid protocol. In order to ensure compliance, the DGCA may consider sending random observers on flights, without prior information, who would check to ensure that the COVID protocols are followed in flight.

(vi) Strict enforcement of all penal provisions, which could visit delinquent passengers who refuse to abide by the COVID protocols to be maintained in flight, should be ensured. There should be no relaxation whatsoever in that regard.

(vii) It is noticed that the guidelines of the DGCA do permit relaxation from the requirement of wearing masks in exceptional cases. Such relaxation, if necessary, should be allowed only in cases which are truly exceptional, such as for medical reasons, after a conscious assessment and evaluation of (a) the necessity of the passenger to fly and (b) the justifiability of the passenger’s refusal to wear the mask, weighed against the risk to public interest involved if the passenger is allowed to travel without a mask. In deserving cases – which should be the exception, not the rule – the airline should take steps to isolate the passenger so that he is kept at a safe distance from other passengers in the flight.”

To put things in perspective, the Bench then directs in para 8 holding that, “All concerned authorities are directed to accord adequate publicity to these guidelines, so that there is strict compliance therewith. The DGCA, the Ministry of Civil Aviation and Ministry of Home Affairs, as well as all airlines operating in the domestic sector, should take all steps in order to ensure that these guidelines are complied with. They should also ensure that, in the case of airlines which repeatedly fail to ensure compliance with the said guidelines, penal action is initiated, in accordance with law.”

Going ahead, the Bench then also directs in para 9 that, “Let this order be also displayed on the official website of the DGCA, the Ministry of Civil Aviation and the Ministry of Home Affairs, and a copy provided to learned counsel for the Union of India and Air India, who have been gracious enough to appear at the request of the Court.”

Strictly speaking, the Bench then hastens to add in para 10 that, “The DGCA would also ensure circulations of these guidelines to all airlines, for strict compliance therewith. Periodical review of the situation should be undertaken, to ensure that no laxity creeps into the system.”

Frankly speaking, the Bench then also urges in para 11 that, “It is the duty of each of us to contribute towards this end. Pointing fingers at the Central and State Governments, who have formidable tasks to deal with, and are doing all they can, is of no use whatsoever. Each of us, as members of a conscious and conscientious citizenry, is required to be sensitive and sensitized in equal measure, and to strain every sinew to keep the pandemic at bay. If the citizenry becomes complacent, no Government, howsoever activated and alive to the situation, can help.”

Not stopping here, the Bench then also further directs in para 12 that, “Let the matter be now registered as a Suo Motu Public Interest Litigation and listed before the appropriate Bench dealing with Public Interest Litigations as per roster, subject to orders of Hon’ble the Chief Justice, on 17th March, 2021.”

Finally, it is then held in the last para 13 that, “The DGCA as well as Air India, who are represented today, would file reports before the Bench, regarding compliance with the above guidelines, before the next date of hearing.”

In essence, it is a brief, bold, blunt, brilliant and balanced judgment must be implemented most strictly in totality. Citizens also must themselves rise to the occasion and implement in letter and spirits what the Delhi High Court has directed in this recent, righteous and remarkable judgment. It is citizens themselves who will gain the most if they follow the directions given by the Delhi High Court in totality. The DGCA as well as Air India also must comply with accordingly as directed by the Delhi High Court which we have already discussed hereinabove. There can be certainly just no denying or disputing it!