Introduction
Key obligations for airlines
Comment
On 8 August 2022, the Ministry of Finance released the Passenger Name Record Information Regulations. These regulations were created in consonance and under the powers conferred by section 157 of the Customs Act 1962. Section 157(2)(ab) gives the board the power to provide for:
the form, the particulars, the manner and the time of delivering the passenger and crew manifest for arrival and departure and passenger name record information and the penalty for delay in delivering such information under sections 30A and 41A [of the Act].
The purpose of the regulations is to prevent, detect and investigate offences under the Customs Act.(1)
The regulation has its own set of definitions listed under regulation 2. A "passenger" has been defined as a person (other than a crew member) in an aircraft on an international flight.(2) The rules are designed exclusively for international travellers. Similarly, the definition of "aircraft operator" excludes "state aircraft" as defined in the Aircraft Rules 1927.(3) The regulation also establishes the National Customs Targeting Centre-Passenger, the role of which is explained in regulation 3.
According to the rules, airlines must electronically communicate specific data to the approved customs system. The passenger's information must be shared by aircraft operators using the electronic data interchange for administration, commerce and transport message format, which is a widely used electronic message format that has been endorsed by the World Customs Organization, the International Civil Aviation Organization and the International Air Transport Association.
The data collected must be shared with customs authorities "not later than twenty-four hours before the departure time; or at the departure time - wheels off".(4) The data is retained for a maximum period of five years from the date of receipt. After this time, it shall be disposed of by depersonalisation or anonymisation through masking out the relevant information which could serve to identify directly the passenger to whom the record relates.(5)
The regulation also strictly prohibits the collection of irrelevant information. According to regulation 7, airlines may not process information that reveals a person's:
- race or ethnic origin;
- political opinions;
- religion or philosophical beliefs;
- trade union membership;
- health;
- sexual life; or
- sexual orientation.
The regulation thus takes passengers' privacy and protection very seriously and ensures that only information that is necessary is recorded (even the relevant information is disposed of after a certain period of time).
For each act of non-compliance, a penalty of between 25,000 and 50,000 rupees may be imposed by the principal additional director general or additional director general of the National Customs Targeting Centre-Passenger.(6)
Legal scholars and journalists have opined that the main reason behind procuring such data is to prevent bank loan defaulters from fleeing the country.(7) In the past five years, 38 economic offenders, including Nirav Modi, Vijay Mallya, and Mehul Choksi, have fled the country. Mallya, an industrialist and former member of Parliament, left the country on 2 March 2016, the day on which a group of public sector banks petitioned the Debt Recovery Tribunal to recover 90 billion rupees in unpaid dues owed to his now-defunct Kingfisher Airlines.(8)
Collecting passenger information from travellers from other nations is common practice and is done by approximately 60 other countries. This regulation helps the customs authorities to strengthen their database and prosecute offenders. These measures are also aimed at improving visibility over travellers who may pose a risk to the security of India or who have committed other offences.
For further information on this topic please contact Syed Tamjeed Ahmad or Rakhee Biswas at Spaviatech Law by telephone (+91 99 9927 0013) or email ([email protected] or [email protected]). The Spaviatech Law website can be accessed at www.spaviatechlaw.com.
Endnotes
(1) Passenger Name Record Information Regulations 2022, regulation 3(a).
(7) See "Airlines Must Share International Passengers' Details With Customs Authorities: Government", NDTV, 2022.