The victory of Dr Sivaranjani Santosh in the ORS mislabelling case and the huge crisis over cancelled flights by India’s leading airline Indigo show why regulators, properly constituted, are essential. 

The food sector has a regulator, the Food Safety Standards Authority of India; the aviation sector does not. The Directorate General of Civil Aviation (DGCA) is not a regulator, it is an arm of the ministry of civil aviation. Just as Air India, till January 2022 was a company under the same ministry, the DGCA is also a department there. 

This is a vital difference to figure out what has happened in the two cases. Consumer interest cannot be protected by governments as they are constituted in democracies. A government is supposed to write the laws but the implementation of those laws is the remit of the regulators. The government, in the case of public health safety issues, would have laws protecting the interests of the consumer, just as it would have laws mandating there should be safe planes to fly the passengers. 

But issues regarding whether a company is mislabelling a product or has put in adequate sleeping times for pilots between flights is not what a government agency can look into. 

In major democracies, the legislature therefore writes a law setting up regulators to police the sector, protect the interest of the consumer and also create conditions to attract investment into the sector. 

These regulators rope in specialists to continually monitor the sector, so if a broker mis sells a product, those can be discovered. The Securities and Exchange Board of India plays that role. As Dr Santosh found out in her decade long battle, many medical or FMCG companies were selling high sugar laced fruit drinks labelling them as Oral Rehydration Salts on standards set by the WHO. These drinks did not help the consumer to recover from diarrhoea, often worsening their conditions.

How did the presence of the regulator help? First, it had an institutional memory of the issue, very pertinent to understand issues in depth. A government ministry changes personnel often every year; imagine drawing up a file every time as that happens. Next, the regulators have specialists, they are able to diagnose a problem with the sector that a ministry will have to hire experts to do so. And finally, the rules under which a company can be hauled up can only be drawn up by a regulator. Imagine, a ministry being able to set aside time to frame the rules. Each of those will first have to be tabled in Parliament, debated and approved before they come into force. Just imagine a flight roster duty schedule set by the DGCA being debated in any legislature. It is the same reason why, for complicated laws, Parliament sets up a standing committee. Even those working diligently take years to turn in their reports. For rules framed under those laws to make to the legislature are just impossible. 

By any reckoning therefore, a sector to function well needs a regulator. The dissection of these rules or subordinate legislations also allows the consumer to demand redress from the regulator, without having to run to a court every time. It is no surprise that in India, where these regulators have been set up, the consumers get a better deal, for example in RBI, Sebi, Trai, CERC and so on. There are challenges, but for every consumer grievance, the courts are not flooded. 

This is the reason why Dr Santosh could jump into the fray and make the regulator pass the rules which have now been upheld by the courts. This is the same reason why the aviation sector is a mess. This body has a mandate to inspect the airworthiness of aircrafts. So when the DGCA hauls up Air India for flying an aircraft lacking clearances, it could do so. But it has not been given a mandate by Parliament to police airlines. Sure, the ministry of civil aviation has tasked it to do so, but then it could decide to task any other body too. So DGCA can issue guidelines but has no authority to back those up except to the extent the ministry of civil aviation backs it up. That too is subject to question as it is not clear under which laws these are framed. Essentially if the DGCA guidelines are flouted by Indigo as it seems to have done, the costs for the airlines are not significant. Not even a monetary penalty. 


The IndiGo case 

Hundreds of IndiGo flights have been cancelled over the last couple of days. 


The issue: 

As per IndiGo, it mentioned that the disruption was due to a combination of unforeseen challenges like minor technology issues, bad weather, high congestion, winter schedule changes. It also expected that normalcy of flight operations could be expected by ~Dec 10. 

The major reason, however, is the new Flight Duty Time Limitations (FDTL) rules introduced by the Directorate General of Civil Aviation (DGCA) in January 2024. 

The new DGCA FDTL rules, implemented to enhance safety by increasing pilot and crew rest. It included longer weekly rest periods, a wider definition of night duty, reduced limits on total duty hours, fewer night landings permitted and night shifts for pilots reduced significantly (from six to two per roster period). The new rules immediately rendered many crew members ineligible for old schedules, causing roster problems, cancellations, and delays.

IndiGo experienced the worst impact from the new DGCA FDTL rules primarily due to its large scale of operations with heavy night operations and alleged failure in timely resource planning.

Pilot associations criticized IndiGo for having two years to prepare but starting the process too late, suggesting managerial underestimation or delay. They blamed IndiGo’s lean manpower strategy and hiring freeze. They also raised concerns that the resulting disruptions might be an "immature pressure tactic" by the airline to "arm-twist" the DGCA into relaxing the new, stricter safety norms.

What has DGCA done so far

Following hundreds of flight cancellations over several days, the DGCA (Directorate General of Civil Aviation) held a review meeting with IndiGo leadership and MoCA (Ministry of Civil Aviation) officials. It criticized IndiGo's planning failures and ordered the airline to submit a comprehensive disruption-management plan. IndiGo was also directed to increase manpower for passenger handling and was placed under real-time monitoring to prevent further network disruption. The Civil Aviation Minister reportedly expressed displeasure regarding IndiGo's handling of the crisis.  

Statement by the Government:

Civil Aviation Minister Ram Mohan Naidu held IndiGo's mismanagement regarding its crew, with respect to the new flight duty time limitation (FDTL) regulations issued by the DGCA, responsible for the disruption of its operations, leading to severe delays and congestion at the major airports across the country. He said the events that have unfolded in major airports led the civil Aviation Ministry to grant IndiGo a certain abeyance from FDTL norms to ensure normalcy. He said a committee has been formed to look into the disruption and inquire where things went wrong.

Our view:

Before commenting on the situation, let’s understand what the new DGCA rules implied. They wanted the pilots to have proper sleep adequately - which was absolutely necessary for the safety of passengers. Thus, they recommended fewer night duties and longer breaks. The bottom-line of the Companies would be affected as an airline would need to hire more pilots in such cases. The interesting thing was that the new rules were announced nearly 2 years back. Most airlines did little to address the issues. Once the rules came into force, the flight schedules collapsed. 

The ministry of civil aviation has shifted the blame on the Airlines. The Pilot Associations too blame Indigo Airlines. The DGCA has issued guidelines which are only advisory in nature. But it is ultimately the travellers who pay for the services or lack of it and now are at the receiving end of this chaos.  

Finally, what we need is a Regulator for the Airlines industry on the lines of SEBI, which will take strict action on any misdemeanour, impose hefty penalties, and not just bring in new rules and regulations for the sector but also ensure it is imposed in totality within a strict timeframe. Running an airline industry is no joke. They are not just bound to provide good services to travellers for the hefty amounts they pay as fees, but the safety of passengers too should be of paramount concern. 

WHAT THE GOVERNMENT COULD DO IN THE MEDIUM TERM: 

· The enquiries that have been ordered should have a declaration of the results in a time-bound manner. 

· Set up a full-fledged regulator for the sector.

 

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Reference Article - https://crg.jgu.edu.in/post/indigo-india-s-duopoly-problem-and-can-competition-law-fix-it-author-avirup-bose


(These are the personal views of the author. They do not necessarily reflect the opinion of OP Jindal Global University or its affiliated institutions)