Where we’re going, we don’t need roads!” – Doc Brown, ‘Back to the Future’ (1985)

Over the last year, a lot has been written on the Hyperloop transportation system and the interest of the project proponents for its rolling out in India. The Hyperloop transportation technology was first mooted by entrepreneur and investor Elon Musk in 2012. The technology, which science fiction enthusiasts may recall as appearing in the short story ‘Double Star’ by Robert A. Heinlein, has been described by Musk as “the only option for super-fast travel is to build a tube over or under the ground that contains a special environment.” Proponents hail the hyperloop as not just being fast, but also being cheaper and better for the environment than planes, trains, and automobiles.

In simple terms, the hyperloop is a high-speed ground transportation system that uses small passenger-carrying vehicles, or pods, that travel at transonic speeds inside tubes which are partially evacuated in order to eliminate or minimise air friction. The 2013 SpaceX overview of the technology described the following key elements as characterising the hyperloop – (a) a capsule/pod to carry passengers, and (b) a partially evacuated steel tube inside which the pod travels. Reportedly various companies are exploring the possibility of developing a hyperloop system in India. However, it is useful to consider which legal and regulatory framework would apply to the hyperloop in India. Or, to put it more plainly, will the hyperloop fall within the ambit of a ‘railway’, ‘metro railway’, ‘tramway’ or ‘motor vehicle’ as defined under the extant legislative framework?

What is a Railway?

The Railways Act, 1989 defines railway as “a railway, or any portion of a railway, for the public carriage of passengers or goods.” As this definition is not too helpful for our analysis, we may look to the decisions of the courts of law for assistance:

In the Shahadara (Delhi) Saharanpur Light Railway Company v. Municipal Board case (1969), the Supreme Court agreed with the contention that the expression "railway", as is commonly understood, means carriage of passengers and goods on iron rails.

In the Aditya Rice Industries and Ors. vs. Assistant Commercial Tax Officer, Miryalaguda Circle, Nalgonda District and Ors. case (2017), the High Court of Telangana and Andhra Pradesh observed that railway wagons fall within the purview of the term ‘wheeled conveyance’.

Thus, the defining characteristic of a railway is a wheeled conveyance that travels on iron rails.

What is a metro railway?

Section 2 (1) (i) of the Metro Railways (Operation and Maintenance) Act, 2002 defines metro railway as a “rail-guided mass rapid transit system having dedicated right-of-way, with steel wheel or rubber-tyred wheel coaches, but excluding tramways, for carriage of passengers”.

Thus, for our analysis, the key element that characterises a metro railway is – steel wheel or rubber-tyred wheel coaches.’

What is a tramway?

The Indian Tramways Act, 1886 defines tramway as “a tramway having one, two or more rails.” The High Court of Karnataka in the Zakirunnissa vs. State of Karnataka, case, defined the term – tramway, as, “a system of transport used wholly or mainly for the carriage of passengers and employing parallel rails which (a) provide support and guidance for vehicles carried on Hanged wheels, and (b) are laid wholly or mainly along a street or in any other place to which the public has access.”

Thus, the key elements that characterise a tramway are – (a) one or more rails, and (b) wheeled vehicles.

What is a motor vehicle?

The Motor Vehicles Act, 1989 defines motor vehicle as “any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source […] but does not include a vehicle running upon fixed rails.”

The key element that characterises a motor vehicle is that it is a wheeled conveyance that is adapted for use upon roads.

Squaring the circle

Therefore, it appears that the hyperloop, not being wheeled, adapted for road or capable of traveling on rails, is unlikely to be classified as a railway, metro railway, tramway or motor vehicle. If the hyperloop does not come within the ambit of any existing modes of transport, then – it may either have to be subject to a new legislation that adequately addresses its unique features, or extant legislation will have to be effectively amended in order to square the circle. It will be interesting to see as to how the central or the state governments will be classifying the regulatory framework for introduction of the hyperloop technology, considering that it is an emerging technology and has not been operationalised for public use.

All in all, it should be remembered that the hyperloop may just be the first in a long line of emerging technologies that have so far been confined to the pages of science fiction novels (such as flying cars, self-driving cars, pods and (hopefully, some day) teleportation). In a rapidly changing world, it is imperative that laws are dynamic and responsive to new challenges and issues while keeping in mind the safety aspect.

Ashish Suman is partner, and Kartikeya Gajjala is senior associate, J. Sagar Associates. Views expressed in this article are personal.

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