Legal Aspects of Disruptive/Unruly Passenger in International Civil Aviation

What happens if a passenger on board an aircraft misbehaves or becomes unruly while the Flight is in progress? The misbehavior may manifest in many forms. It may be by shouting at or threatening the Crew or Fellow passengers or making inappropriate gestures to lady passengers. Some may try to cause damage to aircraft floor, windows, Doors or Seats.  When normal methods of pacifying such passengers fail, the law permits such passengers to be restrained. This can be achieved by using Restraining Cuffs or Tapes with which the passenger could be confined to the seat. It is obvious that such restraining cannot be continued for long hours. The Tokyo Convention (Convention on Offences and Certain Other Acts committed on Board Aircraft) which is the International Law on the subject till date, provides that such restraining cannot continue beyond the first point of landing (Article 7). There are exceptions in case the point of landing is in a country which is not a Party to the Convention or where the aircraft commander is unable to deliver that person to the competent authorities. Once disembarked, it is up to the host country to take suitable action against the unruly passenger as per the law of the land. It is at that stage that the question arises of jurisdiction over the passenger’s alleged misconduct. In case the aircraft disembarking the passenger is registered in that Country, or if the disembarked passenger has the nationality of that country, the jurisdiction is well established. Similarly if the Air operator concerned is based in that country then also the jurisdiction is intact. The problem arises when a foreign national aboard an aircraft registered in a foreign country is disembarked as unruly passenger in a country which neither is country of registry for that aircraft, nor is the base for the air operator concerned. Under the existing law the country of disembarkation has no criminal jurisdiction over such disembarked passenger.  

In the context of our country, the Indian Penal Code is applicable (Section 3 and Section 4) to all persons within the Territory of India, which includes persons on board Ships and Aircrafts registered in India though they may be anywhere, and to all Indian citizens in any place without and beyond India. The problem arises when an aircraft which is neither registered in India nor operated by an India based operator lands in India with an unruly passenger on board and disembarks that passenger as permissible under Tokyo Convention 1963. If the passenger has not committed any offence with respect to any Indian Citizen on board, nor he has committed any serious offence worthy of prosecution under Indian Law (The Tokyo Convention Act 1975 which gives effect to the provisions of Tokyo Convention 1963, in India) then that passenger cannot be prosecuted merely for his or her disruptive/unruly conduct in air as Indian law has no jurisdiction on such passenger’s misconduct. In fact such a passenger is likely to walk away free on landing. The misconduct of an unruly passenger in air, say pounding the floor or window glass repeatedly or trying to force open the safety latches, is likely to cause safety concerns. Clashing with fellow passengers or hitting the Cabin Crew may jeopardize the Flight itself and may lead to diversion to the nearest airport which may have additional cost implications for the airlines, besides dislocation in services and inconvenience to passengers. Therefore the misconduct of an unruly passenger has to be dealt with sternly and in an exemplary manner so as to deter the other such potential mischief makers.

The applicable International Convention that is Tokyo Convention 1963, did not contain a solution to the problem created by such passengers other than their disembarkation or handing over to the Authorities along with a Report about his or her conduct on board. Other International Instruments on the subject of offences on board aircraft like the Convention for the Suppression of Unlawful Seizure of Aircraft (Hague Convention 1970) and the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Montreal Convention 1971) did not address the problem created by the Disruptive/Unruly passengers. The Tokyo Convention in fact does not provide a definition of what constitutes an international criminal offence. It leaves it to the subjective interpretation of the Contracting State Parties. Neither there is any common agreement amongst the Contracting Nations on what constitutes such offence.

This lacuna of lack of jurisdiction in the existing International Law was noticed when the problem of unruly passengers surfaced. The triggering factors for such unruly behavior could not be far to seek. Refusing serving of more liquor to passengers already drunk, delay in service of meals or refreshments, prohibition of smoking or use of Electronic Gadgets, sharing of common hand rest, frequent movement of middle and window seat passengers to the inconvenience of aisle seated passenger, not permitting use of lavatories could provide immediate cause to such behavior. Besides, some passengers may be mentally upset on some personal issues or may be unstable and may create a scene in the Flight.  With long haul flights, the problem has only become acute. The issue was deliberated for many years and various Practices were evolved to deal with such passengers, both on preventive and management aspects. But the treatment of such passengers on ground once disembarked was still lacking uniformity in absence of any uniform legislation. In most cases the State of arrival refuses to assert jurisdiction if the aircraft was registered in another State. The issue could have been addressed by inserting suitable bilateral clauses in air services agreements to deal with the issue and backed by appropriate Domestic legislation, but not much progress was made in that direction.

In order to deliberate on the subject a Diplomatic Conference on Tokyo Convention was held in Montreal from 26 March till 4 April 2014. One Hundred ICAO member States and 9 International Organizations and Institutions participated (422 participants) in the Conference. It noted that the incidents of unruly conduct /disruptive behavior of passengers while on board the commercial Flights were substantial. For example in USA, 160 such incidents (excluding Security violations) were reported to FAA in 2013.The Conference adopted a Protocol (Montreal Protocol 2014) to amend the Tokyo Convention 1963 so as to deal with the increasing incidents involving disruptive and unruly passengers on board Scheduled Commercial Flights. This new Protocol is open for Signature and Ratification by the States. It shall enter into force on the first day of the second month following the date of the deposit when the 22nd instrument of ratification, acceptance approval or accession is received by the Depository.

The new Protocol amends the Tokyo Convention by replacement of existing Articles as well as by inserting new clauses and deleting a few of them.  It enlarges the definition of Aircraft in Flight. Now the Aircraft will be considered to be in Flight (amended Article 1) when all its external doors are closed, following embarkation, until the moment when any such door is opened for disembarkation. Secondly if the State of the operator is not the same as the State of registration, the term the ‘State of Registration’ as used in the Article 4,5 and 13 of the Convention , shall be deemed to be the State of Operator. This will bring such acts of unruly/disruptive behavior on board nearer to the State of disembarkation as in most cases the Aircraft might be diverted back to the State where the Operator has its principle place of business. The amending Protocol creates wider and multiple jurisdictions over the offences and acts committed on board. In addition to the State of registration, it also creates parallel jurisdiction in favor of the State of landing and the State of Operator. This will ensure that the unruly/disruptive passenger does not escape the clutches of law on grounds of lack of jurisdiction. The new Protocol identifies ( amended Article 15) two distinct activities

a) physical assault or a threat to commit such assault against a crew member ,or

b) refusal to follow a lawful instruction given by or on behalf of the aircraft commander for the purpose of protecting the safety of the aircraft or of persons or property therein by the passenger which are to be legally proceeded with.

For the first time the role of In-flight security personnel has been specified (amended Article 6) with respect to such disruptive/unruly passengers. The new Protocol (Article 18) also provides for recovery of significant costs from a person disembarked or delivered arising on account of his or her disruptive/unruly behavior.

We have a notorious record of delaying the ratification of International Conventions. For example the Hague Convention for Suppression of Unlawful Seizure of Aircraft 1970, though signed by India on 14 July 1971 was ratified only after eleven years on 12 November 1982 and Tokyo Convention 1963 on Offences and Certain other Acts Committed on Board Aircraft ratified on 22 July 1975 India is already party to the present Protocol, being its signatory, besides 87 other States. It may do well to urgently ratify the new Protocol and bring amendment to the Tokyo Convention Act 1975 to give effect the provisions of the new Protocol. This will create legal jurisdiction over the unruly/disruptive passenger who has been disembarked or delivered by any civil aircraft on commercial international flight at Indian Airports. It will send a strict no-nonsense message to potential mischief-makers who otherwise felt that they could walk away free once landed due to lack of legal jurisdiction over such passengers. We may also bring our Domestic civil aviation flights within the purview of such amended legislation by widening the scope of amending legislation, including its purpose in the ‘objects and reasons’ clause. Some agency like DGCA or Bureau of Civil Aviation Security may be entrusted with the task of maintaining the Data relating to such incidents and analyze them so as to bring down the number of such incidents and also develop protocols to manage such incidents and reduce the cost of diversions on account of unruly/disruptive conduct of passengers while in flight. In the long run the amended legislation should promote safe and pleasant journey for all passengers travelling through the Indian skies.

By: Sharda Prasad

Advocate practicing in Supreme Court

Former Addl Commissioner Civil Aviation Security Govt of India

Can be contacted at: spy1809@gmail.com