Only a law can alter the terms of your sleep

Sleep is a fundamental right; a different perspective

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No person shall be deprived of his life or personal liberty except according to procedure established by law. Article 21 Indian Constitution 1950.

The objective of Article 21 of the Indian Constitution is to prevent encroachment upon personal liberty and deprivation of life except under the procedure established by law. The objective of fundamental rights is twofold. Every citizen must be able to claim those rights; second, they must be binding upon every authority. Fundamental rights have been given to protect the public from arbitrary action of the state. The state could mean the government, the parliament and local authorities, as explained by Article 12 of the Indian Constitution.

Through this write-up, I present my view on the subject of flight and duty time limitations for managing fatigue of flight crew members or Pilots. There has been a long-standing demand of the pilot community through various representing bodies that the civil aviation requirements through which the state controls the FDTL must be based on scientific principles, be fair, and not arbitrary. The Nasim Zaidi Committee Report 2011 is the only consultative process that has taken place to resolve this issue; however, the report's recommendations could not be fully implemented. Over the years, fatigue has come to the fore as a considerable risk to flight safety. Regulations are being changed globally to address the issue of fatigue. Airlines must fly at odd hours when the human body should ideally sleep. This brings the issue of placing restrictions on sleep for crew members who are duty-bound to operate flights. The restrictions on their sleep must therefore be reasonable and fair and must not be arbitrary, whimsical and fanciful. These conditions are imposed as a fundamental right that every citizen of India enjoys.

Sleep is a fundamental right under Article 21 of the Indian Constitution and is subject to protection. The Hon'ble Supreme Court of India, in the judgement of SUO MOTU WRIT PETITION (CRL.) NO. 122 OF 2011 RAMLILA MAIDAN INCIDENT DT.4/5.06.2011  v. HOME SECRETARY, UNION OF INDIA & ORS stated the following:

1. Justice Chauhan, in his concurring opinion, stated that "it is evident that right of privacy and the right to sleep have always been treated to be a fundamental right like a right to breathe, to eat, to drink, to blink, etc.".
2.  It is believed that a person who is sleeping, is half dead. His mental faculties are in an inactive state. Sleep is an unconscious state or condition regularly and naturally assumed by man and other living beings during which the activity of the nervous system is almost or entirely suspended. It is the state of slumber and repose. It is a necessity and not a luxury. It is essential for optimal health and happiness as it directly affects the quality of the life of an individual when awake inducing his mental sharpness, emotional balance,  creativity and vitality. Sleep is, therefore, a biological and essential ingredient of the basic necessities of life. If this sleep is disturbed, the mind gets disoriented and it disrupts the health cycle. If this disruption is brought about in odd hours preventing an individual from getting normal sleep, it also causes energy disbalance, indigestion and also affects cardiovascular health.
3. These symptoms, therefore, make sleep so essential that its deprivation would result in mental and physical torture both. It has a wide range of negative effects. It also impairs the normal functioning and performance of an individual which is compulsory in day-to-day life of a human being. Sleep, therefore, is a self rejuvenating element of our life cycle and is, therefore, part and partial of human life. The disruption of sleep is to deprive a person of a basic priority, resulting in adverse metabolic effects. It is a medicine for weariness which if impeded would lead to disastrous results.
4. Deprivation of sleep has tumultuous adverse effects. It causes a stir and disturbs the quiet and peace of an individual's physical state. A natural process which is inherent in a human being if disturbed obviously affects basic life. It is for this reason that if a person is deprived of sleep, the effect thereof, is treated to be torturous. To take away the right of natural rest is also therefore violation of a human right. It becomes a violation of a fundamental  right when it is disturbed intentionally, unlawfully and for no justification. To arouse a person suddenly, brings about a feeling of shock and benumbness.
5. No person can be divested of his fundamental rights. They are incapable of being taken away or abridged. All that the State can do, by exercise of its legislative power, is to regulate these rights by  imposition of reasonable restrictions on them. Upon an analysis of the law, the following tests emerge:-
1. The restriction can be imposed only by or under the authority of law. It cannot be imposed by exercise of executive power without any law to back it up.
2. Each restriction must be reasonable. 
3. A restriction must be related to the purpose mentioned in Article 19(2).

The state controls Flight Duty Time Limitations through the Civil Aviation Requirement (CAR) issued by the Directorate General of Civil Aviation (DGCA). The India Aircraft Rules 1937, rule 42A,' Fatigue management of flight crew members'  requires the DG, DGCA to specify the maximum limits of flight time, flight duty period, duty period, and the minimum rest to be observed by the crew members. 

 The prevailing DGCA, CAR, has been drawn up based on this rule, and as such, there is no law which justifies the breach of the fundamental right to sleep of the crew members. 

The Occupational Safety, Health and Working Conditions Code, 2020 is the only statute governing work hours. Other rules like the Aircraft Rule 1937, rule 42a, and the CAR on Flight and Duty Time Limitation are merely executive orders. The executive order can supplement a statute but not dilute it. The Central Government must, therefore, introduce the flight and duty time limits through a statute.

1. 1. In 2019, the Ministry of Labour and Employment presented the 'The Occupational Safety, Health and Working Conditions Code, 2020' which was passed by the parliament.
   2. The Code seeks to regulate health and safety conditions of workers in establishments with 10 or more workers, and in all mines and docks.
   3. The Code subsumes and replaces 13 labour laws relating to safety, health and working conditions. These laws include: Factories Act, 1948; Mines Act, 1952; Dock Workers Act, 1986; Contract Labour Act, 1970; and Inter-State Migrant Workers Act, 1979.
   4. Chap.7, 25(1) states: No worker shall be required or allowed to work, in any establishment or class of establishment for more than— 
      • (a) eight hours in a day; and 
      • (b) the period of work in each day under clause (a) shall be so fixed as not to exceed such hours, with such intervals and spreadovers, as may be notified by the appropriate Government.
2.   The Central Government may formulate regulations where work hours exceed 8 hours but it must be in the form of a statute since the provisions of Article 21 recognising sleep as a fundamental right are affected.
3. Once a law is passed by the parliament, like the Railway Act governing the work hours of railway employees, the Civil Aviation Requirements (CAR) can be issued to detail the specifics.

 Therefore, a law on fatigue management of crew members must be enacted ASAP to protect the fundamental rights of the citizens.

Compared to issuing a regulation in a democratic country, the work of making or drafting a law is that of the legislature. The enactment of a law is a detailed procedure. More deliberation is involved during the drafting and approval, making a law less arbitrary than a DGCA CAR. There is more deliberation involved during the drafting and approval phases, making a law less arbitrary when compared to the regulation.

The ministry drafts a text of the proposed law, called a ‘Bill’, after calling comments from other ministries and even from the public.  The draft is revised to incorporate such inputs and is then vetted by the Law Ministry. It is then presented to the Cabinet for approval.

, •After the Cabinet approves the Bill, it is introduced in Parliament. In Parliament, it goes through three Readings in both Houses. 

• During the First Reading the Bill is introduced. The introduction of a Bill may be opposed and the matter may be put to a vote in the House.

 •After a Bill has been introduced, the Bill may be referred to the concerned Departmentally Related Standing Committee for examination.

 •The Standing Committee considers the broad objectives and the specific clauses of the Bill referred to it and may invite public comments on a Bill. It then submits its recommendations in the form of a report to Parliament. 

•In the Second Reading (Consideration), the Bill is scrutinized thoroughly. Each clause of the Bill is discussed and may be accepted, amended or rejected. The government, or any MP, may introduce amendments to the Bill.  However, the government is not bound to accept the Committee’s recommendations. 

•During the Third Reading (Passing), the House votes on the redrafted Bill. 

•If the Bill is passed in one House, it is then sent to the other House, where it goes through the second and third readings. 

•After both Houses of Parliament pass a Bill, it is presented to the President for assent.   He/She has the right to seek information and clarification about the Bill and may return it to Parliament for reconsideration. (If both Houses pass the Bill again, the President has to assent) 

• After the President assents, the Bill is notified as an Act.

The European Flight and Duty limits are approved by the European Parliament, the UK Parliament approves the measures to deal with flight crew fatigue, and the USA Congress approves bills on aviation training and other issues. There are committees and commissions which are formed by the parliaments and they involve various experts in the process of development and legislation.

We can conclude that the Sleep of crew members is a fundamental right protected by the constitution of India. Restriction can only be imposed on fundamental rights through a law or an act enacted by the state or central government. The act must pass the test of reasonableness and must not be arbitrary. unfair, whimsical or fanciful.

“My mind clicks on and off…I try letting one eyelid close at a time while I prop the other open with my will. But the effort’s too much. Sleep is winning. My whole body argues dully that nothing, nothing life can attain, is quite so desirable as sleep.” 

Charles Lindbergh, describing the fatigue that struck him nine hours into his 33-hour solo Atlantic crossing.