“My fight is to save lives, including yours, My Lord”

If you google my name, I am referred more as an ‘aviation activist’ than as an advocate. Yes, I filed PIL’s in my personal name because my clients won’t. For my clients, it is an event they would like to forget but their compensation cases keep these ‘deeply disturbing memories’ alive longer than they would like. Once I told one of my clients that they should stand up so that no one else goes through what they went through, the reply was quick “you still want us to believe in Justice after what we are going through”. I didn’t want to hurt them any further and took upon myself that task. 

This write up is not about the technicalities of Aviation Law. This is about what I had to face in the courts to even get a hearing on this important issue that has not been given its due in the Judicial system. While the media frenzy surrounds the issue only for about a month and public memory being abnormally short, we forget the 158 lives that was lost. We have now paid with another 20 lives in 10 years but in all these 10 years, I have relentlessly and consistently approached Courts trying to address serious issues. Unfortunately, they have not been addressed and I warn that Calicut is just the first in the Series. The deadliest air crash took 583 lives and if we fail to address this serious issue, we will break this record. In all likelihood, it will be in Mumbai. A Mangalore or Calicut type accident in Mumbai will cost us atleast a few thousand lives.

As lawyers, we are conditioned to ask, Why? My journey also started in that fashion. Why are there so many fatalities in spite of the aircraft landing in an airport? Nowhere else in the world has it happened where almost all on Board perish after an aircraft has landed at an airport. This question sent me digging for answers and RTI was the easiest and the quickest route. The replies to the RTI stunned me, ‘Safety’ was only on papers, nothing was on the ground.  

My entry into aviation law was initiated first at the Magistrate’s court in Mangalore. I could convince the Magistrate, though the State went to High Court and sought the most common protection, Sec. 197 of the Cr.P.C which lets government servant’s go scot free for the Murders they commit while they ‘discharged their duties’. That stay order is still in force and its almost 8 years. While concluding my final arguments in Feb 2020, I told the Judge that if we don’t prosecute, leave alone dream of convicting the erring officials, we will have more of Mangalore. I have been proved so right today and the Judgment is still ‘reserved’ at the Karnataka High Court.

The first PIL I filed in the Supreme Court came up for hearing before a Bench headed by Justice B.S Chauhan. Technicalities didn’t appeal to him and he wanted me to withdraw the Writ and approach the Delhi High Court which I refused. The Writ was converted into a representation and it was for the Respondent to adjudicate the veracity of my Petition itself! A review filed on the grounds of violation of Principles of Natural Justice was dismissed. How could a party be allowed to be a Judge in his own case? 

 I was dejected and I decided to give up against a system that simply doesn’t allow a faceless citizen to fight corruption, incompetence and unprofessionalism however bad it was or how many lives it cost. In a country with a Billion 158, 5, 20 are just too small a number. But the Conscience in me didn’t allow me to close my eyes to the injustice. I couldn’t shake my head out of the image of that little girl in the fireman’s arms from the Mangalore Crash site. 

I read a news story of a valiant officer of the Airports Authority of India (AAI) standing up against her own employer who was allowing an ‘obstacle’ just 600 mtrs from the main runway of Mumbai or just 6 seconds from take-off. I knew what obstacles could do and in Mumbai it would be catastrophe. I tried meeting this officer at her office and she threw me out the moment I told her I am a lawyer and wanted to file a PIL !!! Its not just Judges who hold such opinions against lawyers filing PIL !!! 

I did some research and learnt that Aviation Safety office is an independent office in the safety network. Therefore, I made her as a respondent and filed the petition. The first question from the Bench was why was she made a party and I convinced the Judges on it. She had to file a reply and she did file one, one over 1000 pages!!! The Bench changed again and the new Bench asked the same question and weren’t convinced by the same answer or the plea that this matter was already decided because the previous Bench did not record the same in the order!!! I was learning fast from my experience in the Supreme Court and now in the High Court. I also knew that there was a ‘pre conceived notion against PIL’ and I have to cross that hurdle everytime I file a PIL. Whenever, I manage to overcome that notion, I have to deal with the inherent dislike to hear technicalities.

With over 1000 pages of technical documents and not knowing anything about it, I had to go back to my study. I had no teacher!!! Thankfully, the officer got convinced that I was not after anything else but Aviation safety and she started hand holding me deeper into to the technical world of Aviation. I was convinced that no judge would ever hear such level of technicalities and had to find a way out. I decided to make Thermocol models of airports and the surrounding area including clouds and bought miniature versions of Boeing and Airbus aircrafts.

The Thermocol models helped. The Judges were able to understand and finally the Judge directed a committee headed by a Retired HC judge to look into the serious allegations in my Petition. One year went by and even the committee was not formed. In the meantime, the newspapers reported about this committee and a person contacted me asking for help to save his building and I found the person had received under RTI, a copy of 160 demolition notices issued by GVK in 2011!!! Armed with this new evidence, I filed a Notice of Motion and Perjury Petition in Bombay High Court and all hell broke loose.

The Judges were now convinced of what I was saying. The Mumbai International Airport private Limited filed the obstacle list of 2010-11 which showed 137 ‘obstacles’ in the Flight Path and then the 2015-16 Obstacle list with 469 Obstacles!!! The Bench ordered the Maharashtra Legal Services Authority to give me Rs.10,000 /- to meet expenses of the PIL!!! The tables turned and the Bench was extremely serious of the matter and gave a stay on all construction around a 4 km radius of the Airports.

The Builder lobby was shaken, hundreds of applications and writs were filed and I had the entire Bombay Bar on the other side, while I stood alone on this side. I enjoyed this experience thoroughly because I knew my subject so well and I was sure it wasn’t going to be easy for any lawyer to study this subject in detail.

Unfortunately, the Senior Judge hearing the Petition retired and I had my task cut out. Start from zero again as I have to convince a new set of Judges. The Matter was before the then Chief Justice Dr.Manjula Chellur. She started by appreciating me for the research and study I had put it and said she was concerned for the thousands whose shelters will have to be taken away. I replied “I understand the dilemma of your ladyship, but let me put this up in this way. If I lost my shelter, I could come back to your ladyship and plead and your ladyship may be in a position to order the State to provide me one. What if I lost a life and I came back to your ladyship, can that life be given back”. That was totally unexpected and I still clearly remember the use of the words “Shut up”, but those words came out more as a reaction to what I said because even the Chief Justice was taken aback by her own reaction and did apologise.

The Matter was thereafter before another Judge of the Bombay High Court against whom I was constrained to file a ‘In house Proceeding’ and that too exactly on the Aviation issue itself. I sought a recusal, he refused saying there are hundreds of complaints against him. When the matter came up for hearing after 2 months, I again moved a Recusal application and I said the factual situation has changed. I had filed a Writ Petition against the Chief Justice for not following the procedure prescribed by the Supreme Court and in that Petition this Particular Judge was a ‘proper party’ and therefore was made a Respondent. Technically, this made me and the Judge litigants in a pending matter and he should not hear the matter. He again refused and heard the matter. The best part was the order. My PIL was disposed off by asking me to file a fresh Petition on the ground that while I filed the PIL in 2014, the 2010 Rules were applicable and now in 2015, since new Rules came, I should file it under the new Rules!!! This is when the DGCA, MIAL had admitted to violations on Affidavit. I filed a SLP in the Supreme Court and it refused to intervene because it merely saw that I have only been asked to file afresh!!! Of course, I filed a new Petition which is pending but the fact is each of those buildings are a threat to aircrafts everyday and a catastrophe can happen in Mumbai anyday.

The providence was with me. It demonstrated what I have been saying. On 28 June 2018, a small aircraft came down crashing in the very densely populated area of Ghatkoper killing 5 (4 on board and one pedestrian). On 29 June, the very next day, there was an application of the AAI seeking ‘clearance’ of an ‘obstacle’. I was in Delhi Arguing another Aviation matter, but the AAI officer who blew the whistle was present in the Court who told me that the Judge was visibly perturbed and he told the AAI officers that if any of them dared to bring another such application, he will refuse to allow even an inch!!! He probably realized what happened, but it was too late for him to do anything.

I approached the Delhi High Court, I had the same hurdles. First, to prove that the PIL is not filed for any other purposes but to address the serious issues raised and two, smooth transition of the judges into the technical world. I filed my first PIL in August 2017, second in Dec 2017 and third in March 2018. The then Chief Justice Ms.Gita Mittal threw the file down the court Master saying “Mr.Shenoy, how many PIL’s will you file?” This PIL was on the ‘faulty Engines’ and the hearing was on Friday. One of my interim prayers was to ground all aircrafts with those engines. The lawyers of the Aircraft operator were present and were extremely happy with what was happening. I didn’t utter a word, but the Chief Justice told me “Anyway your other PIL’s are coming up next week, I will hear this then”. The next day the PR agencies of the Air Operators were working overtime, all newspapers carried the story of ‘dismissal’ of the PIL, wherein the reality was it was just going to be heard the next week.

The Providence came to my rescue. On Sunday, 5 Indigo aircrafts had an issue. 3 identified on ground, 2 were airborne, but thankfully landed. So when the matter came up, the top lawyers and the regular face reminded the Chief Justice of what had happened on Friday and did their best to prejudice the minds. I had both Judges staring at me. I started with the most simple statement “My lords, I came last Friday with a request to ground these aircrafts with faulty engines, but wasn’t even heard. On Sunday 5 aircrafts had these issues of which 2 were air borne. What would have been the position of this Court had either of them crashed killing a few hundreds?” The Chief Justice retorted, “this is not the way to argue, you think you can blackmail this court in this way”. I replied “I am not blackmailing anyone. I am an officer of the court who studied, researched and came up with a real issue. My job is to bring the attention of the Courts to the issue. If the Court agrees with me or not is not my lookout though I will make every effort to convince the courts. I haven’t even claimed to be an expert in this technical issue neither do I want your lordships to adjudge on these technicalities, I have made the DGCA respondents and they are the experts, let them file an affidavit saying that the allegations in my petition are baseless and on that ground, your lords may decide. Why should we take upon ourselves this responsibility to understand technicalities’. The Chief Justice understood that it was a very fair request and started dictating the order when the ASG stood up and said “we will not file affidavit”. I was taken aback and looked at the Chief Justice who calmly told the ASG, “I am not requesting, I am directing”. I stood up with my experience and insisted that if we only speak an affidavit, the DGCA will get its peon to sign the affidavit and I wanted someone of the rank of Joint director general and that was accepted by the Chief Justice. I knew at the very moment, I had the court’s attention. The next PIL, the DGCA had filed an affidavit admitting to 369 obstacles and all I had to do was point it out. Thereafter, I told the court real incidents in short story telling sessions and I not just had the attention of the Judges, but the entire court heard me in absolute ‘silence’. 1 hour looked like 10 minutes when the Chief Justice asked me, if I fly. I replied, I do, but I choose my aircraft, my airline, my time.

The PIL I filed in December 2017 was disposed by a final order in April 2018 allowing my prayers. Strong action was taken on the other when the Chief Justice was transferred. I again knew, I have to start again from square one. The new Chief Justice was not as receptive and was wanting disposal. The PIL was disposed off with an order that I ought to have challenged in the Supreme Court, but I was tired, I ran out of resources. I simply couldn’t afford. But the fact is that Delhi Airport is also not very far away from danger and no one has to look anywhere else, but my affidavits on the record. I am certain that these affidavits will be pulled and read after a tragedy.

The new Chief Justice was so sensitive that when I filed a PIL again, he wanted me to delete a factual sentence even for him to hear it. I reproduce the same statement “If a quick calculation is made on the compensation that the constitutional authorities ie. The President of India, the Prime Minister of India and the Chief Justice of India would be eligible in case of an accident by using Sarla Verma, none of them would be entitled to even a paltry amount of Rs.50 lakhs. If constitutional Authorities are entitled to that much, nothing more need to be said about the average Indian life.” I didn’t want to take the focus away from the merits and instead of fighting over these small aspects, I decided to delete it and I did. However, the same sentence was a part of my written arguments in the Mangalore compensation case before Justice D.Y.Chandrachud of the Supreme Court. The Supreme Court wasn’t so touchy or sensitive as the Chief Justice of Delhi High Court.

I had filed a PIL in the Kerala High Court and the then Chief Justice Anthony Dominic while hearing the matter wanted me to add some private parties as respondents. I was willing to do so if he so directed, but he wanted me to move an application which I refused to do so. My refusal was squarely because I was so aware of how frequently the Judges move and I have to explain why I did so to the next Justice. So I wanted the same recorded and wanted to show that Respondents were added on the direction of the Court and not my voluntary action. I filed a review challenging the dismissal and the wordings of my review petition was found to be so strong. The Advocates were instigating the Chief Justice to initiate contempt petition. I refused to apologise because there was nothing in the Petition that was contemptuous, I strongly worded my review. The Judge sitting alongside, Justice D.S.Naidu remarked to me from the Bench “Such a well researched and Beautifully drafted petition, but for your ego”. If Justice D.S,Naidu ever happens to read this, I would like to tell him there was no Ego involved here. The Judges are not anymore used to advocates who asserts himself strongly. As an advocate, my job is not to massage the ego of judges but to strongly assert my case and point out the law and the reasoning. Even assuming any advocate has an ego, remember that it hurts probably his client. But the Ego of a Judge is not in personem like that of a lawyer, but it is in rem against the society at large. I believe that the moment the Judge takes his oath, his ego should also be kept as far away to be a fair judge. Ego will cloud reasoning as well as fairness and the mark of a good judge is not the ‘absence’ of Ego, but to keep it away from the matters at hand.

The facts in that Writ Petition, just like the Petition is Delhi High Court will come to haunt us someday. There are specific facts which makes Trivandrum Airport dangerous for operations. It would have also led us to mitigate the risks at the other airports in Kerala. Another PIL pending in the High Court of Kerala is specific to Calicut and the DGCA has still not complied with the orders of the then Chief Justice Mohan Shantanagoudar and today we have lost almost 20 lives.

When Covid lockdown started, the DGCA came out with several orders, each one compromising Safety. I was in Goa and the nearest High Court was the Goa Bench of the Bombay High Court. My petition was a very clean petition on Facts. The DGCA reply was filled with personal allegations and motives and I filed a rejoinder returning it with their own currency. The ASG cried foul and wants the court to first hear if me calling the DGCA and MoCA ‘terrorists’ was fair. On 7 Aug 2020, the Judge told me that I have to either justify my allegations or he would not hear my Petition on Merits. Providence never left me alone. That same night my allegations were proved right when 20 people lost their lives. There is no difference between a terrorist planting a bomb and the State officers wilfully and deliberately allowing the violation of law fully aware of the consequences on Human life. Instead of a Bomb, what these State officers lay are landmines. Landmines don’t go off by themselves, someone has to apply pressure. The argument of these State officers now is that they are not responsible for the landmines that killed people because they just laid it and it was these very persons who jumped on it!!!

Just like Delhi High Court, I was thinking of withdrawing my description of the State officers as Terrorists, but now I will not because doing so would be undermining my relentless efforts to avoid loss of lives and air accidents. Those 20 souls will never forgive me if I do. As regards the threat of hearing the Petition on merits, it is for the Court to decide because I have done my duty of bringing the attention of the Court to serious violations of Air Regulations. Chief Justice Gita Mittal used to ask me, do you fly? Now the fact is I have stopped flying from February 2020, not because of covid but because of deteriorating conditions of air safety. Calicut, is just the first one in the series, we will have many more to come and this time we don’t need a decade, it could even be a seasonal affair. Every season brings with it the challenges. The monsoons in the South, the Winters in the North. I for sure know where Indian Aviation is headed to.

When I clear the obstacle of pre conceived notions, another obstacle that would be rolled in would be allegations of ‘motives’ and personal gains. When these allegations are made by designated Senior Advocates representing the State or some Builders and that too against an unknown face like mine, it is extremely difficult to face it. But here again I had the proverbial ‘silver lining in the clouds’. Once I argued almost for a hour before the Bench of Justice V.M.Kanade and Justice Colabawala at Bombay High Court. The Court and the people inside were stunned and shocked. It was all silence when Justice Kanade cleared his throat and started dictating the order. One designated Senior Advocate rose up and tried to push through ‘motives’. There was a roar from the Bench. The otherwise smiling and silent Justice Colabawala pounced on the Counsel and asked him if he is serious about what he is alleging. The Senior Counsel immediately got the mood of the Court and apologised. It was a new experience, but it was heart warming for me.

Similar experience happened in the Delhi High Court when the Counsels for the Respondents started attacking me with motives, but there the control was with the ever smiling but very assertive Chief Justice Gita Mittal. The Counsel for the DGCA wanted an order gagging me from writing to foreign regulators and to them too. The Judge wanted to know what ‘language’ were they complaining about. They never produced a single e-mail and when the Judges looked at me, I pointed out to the e-mails that I had annexed. With a smiling face she said, “there is nothing wrong with what he said, just yesterday I sent a DDA official to be tried under IPC”. But in Delhi High Court I saw a better support from the Bar. When the Counsels made allegations against me and looking at me standing alone, I had seen many advocates standing up ready to defend me, but there with Justice Gita Mittal in Control, I didn’t need that.

Justice D.S.Naidu and Justice Hari Shankar (the Judge sitting along with Justice Gita Mittal) are one of the most intelligent, well read Judges I have appeared before. Their potential is clouded because of their lack of assertion. When Justice D.S.Naidu said my Petition was “well researched and well drafted”, he did not show the courage to disagree with the Senior Judge. I still cannot understand how can the baby be thrown with the bathwater and did the Judges ever give a thought at who will be affected by their action. I remember a Court scene that I was fortunate to witness myself. Soon after my enrollment in the Kerala High Court, as rookies you just move from one courtroom to another. I was sitting in the Court of the then Chief Justice J.L.Gupta and alongside him was Justice R.Basant. That Bench had the Seniormost Judge of the Kerala High Court sitting with the Junior most Judge. Justice Basant disagreed with the Chief Justice and even dictated his dissent in the open court. I spoke to Justice Basant after his retirement to understand the curiosity of why did he have to dictate his dissent in the open court. He told me that the Chief told him that if you are dissenting with me, you have to dictate the dissent too in the open court which he did and did in great style. But in these 20 years, I haven’t seen another Justice Basant and I am not sure, if I will.

I would have given up my fight long time back because of the way the Judiciary responded. I was not doing anything for myself, I was doing it for unknown people including the Judges who heard me and the advocates who opposed me both above and below the belt. I was being offered money, I was threatened, I lost friends, I made new enemies. I have the State (DGCA, MoCA, AAI), the powerful Builders lobby, the Airlines all baying for my blood, but that image of the little girl in the Fireman’s arms is an image I can ever shake off my head. I continued my fight with the hope of meeting new Judges like Justice V.M.Kanade, Justice Gita Mittal and Justice Colabawala. On 7 August 2020, I sat shocked and introspecting and asking questions. What did I achieve with my decade long fight. The murderers are not just walking free but they go very high in the hierarchy.

I strongly believe that Indian Aviation cannot be saved because the Ministry of Civil Aviation, the Airports Authority of India and the Directorate General of Civil Aviation is an organized Crime Syndicate fully supported by the builders lobby, the airline operators lobby. While I shouted from roof tops, even International authorities refused to take action because the most power lobby, that of Boeing and Airbus managed US and Europe. India was soon becoming their largest customers and they couldn’t allow their Regulators to act. If there is a chance for any change, then it is only if the Judiciary starts looking at it and taking the same interests it takes in certain matters like that of the BCCI, the Sushant Singh Rajput case. If we think we are very far away from disaster, I will tell another Story. After the Mangalore Air crash, I was working closely with Capt. Mohan Ranganathan and were pulling out violations. In October 2012, Capt.Ranganathan wrote to DGCA that the schedule approved by DGCA for Hubli was in violation of Law. Hubli is an airport where ‘night landing’ is prohibited. 8 March 2015, less than 3 years of writing this letter, a SpiceJet Aircraft crash landed at Hubli. The DGCA did nothing even after getting specific information of the violation and it was just a miracle that crash landing did not end up with body bags. Among the passengers was a Cabinet minister and two sitting Justices of the Karnataka High Court. I wrote to the Minister and the Judges, no one took action in spite of the position they held. When persons in such high posts cannot initiate action, what would a common man do?

If there is one last chance for Aviation to change its status quo, it is through the Judiciary. When we have a Judiciary as receptive as the one willing to hear BCCI or the Sushant Singh cases we can hope to make this sector safer to fly. Unlike BCCI or Sushant Singh Case, this matter of Aviation Safety involves millions of lives and the reputation of a nation tagged to it and yet it has so far got a step motherly treatment form the Judicial system.

If Judiciary doesn’t intervene, what will bring about the change in Aviation? Nothing. I can say this with certainty. But things do change, if you don’t adapt to change, you will be forced to. So how do I see this ‘forced change’? In India, there is not one airport that is safe now. So Calicut and Mangalore will repeat itself several times but I put my bet on Mumbai. When it happens in Mumbai, it will not be an accident, it will be a catastrophe. The world will watch in shock and horror. The world will act. Indian aircrafts will never enter American or European Airspace thereafter and Indian Aviation will start from square one and that is how we will be forced to change. Unfortunately, for this ‘Forced Change’ we will lose a few thousand lives, but that is how destiny works.

Everytime I move in the corridors of the Bombay High Court, I see these words inscribed :

“In spite of the verdict of the jury, I maintain that I am innocent. There are higher powers that rule the destiny of men and nations and it may be the will of providence that the cause which I represent may prosper more by my suffering than my remaining free”

 7 August 2020, took away a part of me. I have decided one thing. I will continue my fight in whatever way I can. As the Bhagvad Gita tells me “focus on your karma, don’t think of its fruits”. So I will file more PIL’s across India, I will not be very concerned about how the Judiciary treats me. I hope the Judges do understand that this PIL is not filed to protect the ‘downtrodden and the poor’, this is intended to save the lives of the ‘rich, powerful, literate but ignorant’ class of the society who can afford to purchase air tickets. I am fighting for lives, lives that include that of the Judges, the advocates, the doctors, the businessmen. It is not anymore for my life or that of my family members. I have decided to strictly avoid flying atleast for next two years after which I will make my own assessment of whether to fly or not”… “this PIL is not for my life, it’s for yours, My lords”.