This article is written by Vandana Shrivastava, a student of B.A.L.L.B.(Hons.) at the Institute of Law, Nirma University, Ahmedabad. The article gives an outline of the Anti-Hijacking Act, 2016, its shortcomings.

Introduction

In 2017, a threat note was found inside the business-class washroom of a Jet Airways flight which stated that there were hijackers on board with explosives. The Captain of the flight made an emergency landing on discovering the threat. It was revealed that the threat was a hoax implanted by a man who wanted his Jet employee girlfriend, based in Delhi, to move to Mumbai. The man was sentenced with imprisonment for life by the Court. On observation, the trivialised image of a hijack in the mind of a man intimates upon the need for stringent, exemplary laws to prevent such incidents in the future. 

The Anti-Hijacking Law, 2016 lays down rigid punishment for the offenders, so that civil aviation could function smoothly. Further, India is a signatory to some Conventions and had to modify its laws. The article will discuss the evolution of the new Anti-Hijacking Law and its general provisions, along with the points which the novel statute missed out on.

History

Anti-Hijacking Act, 1982 governed the offences relating to hijacking. The Narendra Modi administration gained power in 2014 and believed that the 1982 Act did not suffice to deal with modern hijacking techniques. Furthermore, the Act lacked stringent penalties and punishments and did not penalise false hijacking threats. Anti-Hijacking Bill, 2014 was introduced in the Rajya Sabha and was passed in the year 2016. The new Act repealed and replaced the 1982 statute. The 2016 Act was enacted to give effect to the Convention for the Suppression of Unlawful Seizure of Aircraft, 1970 (also known as the Hague Hijacking Convention) and the 2010 Beijing Protocol Supplementary to the Convention which India has acceded to.

The Hague Hijacking Convention is a multilateral treaty, the member states of which agree to prohibit and punish aircraft hijacking. The convention exclusively applies to civilian aircraft and excludes customs, law enforcement and military aircraft. Being an International Convention, it only addresses the situations where the aircraft takes off or lands in a place that is not a part of the aircraft’s registration country. The convention also lays down the principle of ‘aut dedere aut judicare’ which states that states have a legal obligation under the public international law to prosecute the persons who are accused of committing serious international crimes, in this case, aircraft hijacking, when no other state has requested the extradition of the accused person.

Old Act v. The New Act

The 1982 statute had a narrow scope for the offence of hijacking by taking into regard only the physical presence of the hijacker in the aircraft. The new Act has broadened the definition of hijacking by the inclusion of an attempt to seize or gain control of an aircraft through any ‘technological’ means. This is broad in the sense that physical absence of hijackers from the aircraft would not spare them from being prosecuted for an attempt or commission of hijacking an aircraft using such technology that does not require their physical presence.

The old Act provided for weak penalties and punishments for the offence. It considered an aircraft ‘in-service’ from the time of shutting the aircraft doors to the moment every passenger has gotten off. The new Act has introduced the death penalty and a life sentence for hijacking attempts and hoaxes. It considers an aircraft to be ‘in-service’ from the commencement of the pre-flight preparation by the ground personnel or the crew till 24 hours after the landing of the aircraft. In cases of forced landings, the flight is deemed to continue until a competent authority takes over the responsibility for the aircraft. Furthermore, the new Anti-Hijacking Act would still be applicable if the offence of hijacking takes places outside India in an aircraft that is registered in India or is leased to Indians, or when the offender is in India or if the offender is stateless but is a resident of India, or when the offence is committed against Indians.

Anti-Hijacking Act, 2016

The Anti-Hijacking Act, 2016 (hereinafter referred to as ‘the Act’) lays down the ingredients for the attempt and commission of the offence of hijacking and the trial procedure for the same. Section 3 of the Act states that a person would be said to have committed the offence of hijacking:

• By unlawful and intentional seizure or exercise of control over an aircraft ‘in-service’ by threat or force; or
• By coercion; or
• By any form of intimidation; or
• By any technological means.

Besides the above-mentioned acts, a person would be liable for the offence of hijacking when such person threatens to commit the offence of hijacking or causes any person to receive such a threat which the recipient has the reason to find credible; or attempts to commit or abets the commission of hijacking, or organises or directs other persons to hijack an aircraft, or is an accomplice in the offence of hijacking. Providing unlawful and intentional assistance to a person in evasion from the investigation, prosecution or punishment whilst possessing the knowledge that the assisted person has committed the offence of hijacking would also be deemed as a hijacker.

An offender could only be liable for hijacking when the act or threat takes place while the aircraft is ‘in-service’. Section 3(4) of the Act states that an aircraft is deemed to be in service from the beginning of the pre-flight preparation of the aircraft by the ground personnel or the crew for the specific flight and shall continue till 24 hours from the landing. In the event of a forced landing, the aircraft is deemed to be in service until a competent authority takes charge for the aircraft, people and property on board.

Punishment

If any hostage or a security person who is not associated with the offence of hijacking, dies as a direct consequence of the hijack, then the offender who caused the death shall be punished under Section 4 of the Act with death or imprisonment for life along with fine and confiscation of the movable and immovable property of the offender.

Section 5 of the Act lays down the punishment for acts of violence that are connected to hijacking. It states that if a person who is a party to the offence of hijacking commits an act of violence against a passenger or a crew member of the aircraft, such person will be punishable for the offence committed by him. For instance, slapping a hostage would make the hijacker liable for battery and will be punished according to the provisions for battery in the Indian Penal Code, 1860.

Jurisdiction

Concerning offences under Sections 3 and 5 of the Act committed outside India, Section 7 of the Act states that the offender will be dealt with in the same manner as if the offence were committed within the territory of India. Indian Courts would be empowered to take cognizance for offences committed under Sections 3 and 5 only under the following conditions:

• Commission of the offence within the territory of India;
• The offence so committed is against or on board an aircraft registered in India;
• The offence is committed on board and the hijacked aircraft lands in India with the person accused of committing the offence is still on board;
• The offence is committed against an onboard aircraft which is leased without crew and the lessee’s place of business or residence in India;
• The offence is committed against a citizen of India;
• A stateless person whose habitual residence is in the territory of India has committed the offence;
• The offence is committed by an alleged offender who is in India but is not extradited as per the provisions of Section 11 of the Act.

Miscellaneous provisions

Application of the Code of Criminal Procedure

The Act provides a detailed explanation of the acts that would amount to offences related to hijacking. However, in the event of committing the offence of hijacking, the offenders often commit acts or omissions that would generate criminal liability regardless of the hijack. Besides, the Act specifically applies to hijacking, but the procedure before the Courts would largely remain the same.

Where procedure for the trial of a hijacker which is not predetermined under the Act, or situations on which the Act is silent, Section 10 of the Act provides that such conditions would be governed by the application of the Code of the Criminal Procedure (CrPC) before a Designated Court.

Extradition

Section 11 of the Act provides for extradition. It states that offences committed under Sections 3 and 5 of the Act will be deemed to have been included in the category of ‘extraditable offences’ and ‘extraditable treaties’. The Extradition Act, 1962 would apply to offences under this Act when any aircraft registered in a country which is a signatory to the Convention is deemed to be within the jurisdiction of the member country when it is in service. It is immaterial if the aircraft is also within the jurisdiction of another country.

Presumption

For offences committed under Sections 3 and 5, if it is proved that the alleged offender was in the possession of the arms, ammunitions or explosives and there exists a reason to believe that armaments or explosives of similar nature were used in the commission of the offence, or when there exists evidence of the use of force, the threat of force or intimidation caused to the passengers or the crew of the aircraft concerning the commission of the offence, the Court will presume the offender to be guilty unless the contrary is proved.

Good Faith

Section 17 of the Act states that an act committed in good faith or an act intended to be done in pursuance of the provisions of the Anti-Hijacking Act, 2016 shall protect a person from any lawsuit, prosecution and other legal proceedings. The same protection is provided to the Central Government for any damage caused or likely to be caused while acting in good faith or pursuance of the provisions of this Act.

Shortcomings of the Act

Although the 2016 Act shows great improvement in comparison to the previous legislation which was last amended in 1994, the Act still has certain shortcomings. For instance, the definition of ‘Aircraft’ under Section 2(b) of the Act, identifies any aircraft as an aircraft regardless of whether it is registered in India. It also excludes aircraft used in customs or police services, which ideally should have been under the purview of Section 2(b) as they are also prone to be hijacked. The Act also fails to provide a provision for punishing perpetrators for hoax calls. When it comes to hijacking, hoax calls can result in massive waves of panic and can easily result in a violent transaction. They tend to be distressful for the security agencies as well, who end up utilising essential resources while investigating the veracity of the call.

Conclusion 

The 2016 Act is wider than the 1982 Act. With the inclusion of stringent punishments, penalties and seizure of property, notorious individuals will refrain from playing pranks with the aviation sector. The world has not witnessed any major hijacking case in a long time and hopefully, it shall remain so. The current provision, despite being exhaustive, needs certain additions to the same. Such additions could be made by amendments or by judicial interpretations.

References

• The Anti-Hijacking Act, 2016: An Explainer.
• Explained: Hijacking Act; why a hoax led to a life term.
• India’s tough anti-hijacking law comes into force.

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