THE ANTI-HIJACKING ACT, 2016

By- Sowbhagya Shetty

The Anti – Hijacking Act, 2016 is an Act of Parliament of India that gives effect to the Hague Hijacking Convention and the 2010 Beijing Protocol Supplementary to the Convention. The Act seeks to repeal and replace the old The Anti- Hijacking Act, 1982. The Bill was introduced in the Rajya Sabha on 17th December 2014 by then Minister of Civil Aviation, Ashok Gajapathi Raju. The bill as recommended by the committee was passed by the Rajya Sabha on 4th May 2016 and by Lok Sabha on 9th May 2016. The Bill received the assent from then-President Pranab Mukherjee on 13th May 2016 and was notified in The Gazette of India on 16th May 2016. The Act came into force on 5th July 2017. The novel act lays down rigid punishments for offenders so that civil aviation could function efficiently.

Background

The administration believed that the 1982-vintage law was not stringent enough to deal with modern-day hijack techniques, it did not mention punishments for individuals who made hoax calls i.e. false hijack threats, and had weak penalties for individuals which did not serve sufficiently deterrent to potential hijackers. The old act was considered outmoded in the face of emerging threats of hijacking and lacked stringent penalties and punishments. 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 agreed 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 takes into consideration 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 felonies, in this case, aircraft hijacking when no other state has requested the extradition of the accused person.

Provisions of the Act

The Anti-Hijacking Act, 2016 lays down the ingredients for the attempt and commission of the offense of hijacking and the trial procedure for the same. Section 3 of the Bill defines hijacking as seizing control of an aircraft in service, unlawfully and intentionally, by coercion, technological means, or by exercising force or any other form of intimidation.

Besides the above-mentioned acts, a person would be liable for the offense of hijacking when such person threatens to commit the offense of hijacking or causes any person to receive such a threat which an individual has the reason to find it credible; or attempts to commit or abets the commission of hijacking, or organizes or directs other persons to hijack an aircraft, or is a co-conspirator in the offense of hijacking. Providing unlawful and intentional assistance to a person in dodging from the investigation, prosecution, or punishment knowing that the assisted person has committed the offense of hijacking would also be deemed as a hijacker.[1]

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 of the aircraft, people, and property on board.

For the purposes of this Act, an aircraft shall be considered to be “in service” from the beginning of the pre-flight preparation of the aircraft by ground personnel or by the crew for a specific flight until twenty-four hours after any landing and in the case of a forced landing, the flight shall be deemed to continue until the competent authorities take over the responsibility for the aircraft and for persons and property on board.[2]

Section 4 of the Act specifies the punishment for hijacking for such offender to be that of – (I) death where such offense results in the death of any person not involved in the commission of such offense resulting as a direct consequence of hijacking; or

II) life imprisonment and confiscation of all the property of such person.[3]

Section 5 of the Act imposes the punishment for acts of violence that are connected to hijacking. It states that if a person who is a party to the offense of hijacking commits an act of violence against a passenger or a crew member of the aircraft, such person will be punishable for the offense committed by him.

Concerning offenses 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 offense were committed within the territory of India. Section 7(1) deals with the jurisdiction of the court.

Section 11 of the Act provides for extradition. It states that offenses committed under Sections 3 and 5 of the Act will be deemed to have been included in the category of ‘extraditable offenses’ and ‘extraditable treaties.’ Extraditable offenses are offenses for which one country may transfer the accused to another country’s legal jurisdiction.  No request for extradition shall be refused on the ground that hijacking is a political offense or is connected to political wrongdoing.

Section 12 deals with provisions as to bail and provides that offenses under this Act would be nonbailable unless the Public Prosecutor has been given an opportunity to oppose the application for such release; and where Public Prosecutor opposes the application, the Designated Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offense and that he is not likely to commit any offense while on bail.[4]

Section 14 confers powers on Central Government to treat certain aircraft to be registered in convention countries.

Section 15 provides for the necessity of the previous sanctions of the central government for any prosecution.[5]

Section 16 states the presumption of offenses under sections 3 and 5. The court will assume the accused to be guilty if the prosecution establishes either: (i) arms, ammunition or explosives were recovered from the accused and there is reason to believe that similar arms, etc. were used in the hijacking or (ii) there is evidence of use of coercion against the crew or passengers in connection with the hijacking.

Section 17 of the Act states that an act committed in good faith or an act intended to be done in the enactment of the provisions of the Anti-Hijacking Act, 2016 shall protect a person from any lawsuit, prosecution, and other such 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 of the provisions of this Act.

Section 21 repeals the Anti-Hijacking Act,1982 without affecting certain rights, privileges, obligations, or any actions taken in fulfilment of the said act or any legal proceedings and remedy, penalty, forfeiture, and any such investigation, penalty, forfeiture, or remedy may be imposed as if the said Act had not been repealed.[6]

Changes in the Act – Old vs New Act

The main novel introductions in the Act is the broader scope of the term ‘hijacking’. The old 1982 statute had a narrow scope for the offense of hijacking by considering only the physical presence of the hijacker in the aircraft. The new Act had broadened the definition by including an attempt to seize or gain control of an aircraft through any ‘technological’ means. The term also includes hoax calls and the making of a threat to commit an offense of hijacking. Furthermore, the amended definition included within its scope those who organize or direct others to commit the offense and also holds such individuals guilty of abetment of hijacking.

Some notable features of the new legislation are the death penalty, life sentence for hoax calls, and a wider definition for “aircraft in service”. Under the old Act, an aircraft was considered “in service” between the time the doors shut and the time every passenger has disembarked. Under the new Act, an aircraft shall be considered to be “in service” from the beginning of the pre-flight preparation by ground personnel or by the crew for a specific flight until twenty-four hours after any landing.[7]

In the new law, the definition has been expanded to include the death of “security personnel on board” or “ground support staff” as well. In other cases of hijacking, guilty will be punished with imprisonment for life and fine, along with the confiscation of movable and immovable property held by him or her. The old Act had penalties and punishments that were inadequate. The new Act has introduced the death penalty and a life sentence for hijacking attempts and hoax calls.

An impressive feature of the new Bill is the universal jurisdiction; even if the offense is committed outside India but the aircraft is registered in India or leased to Indians, or the offender is an Indian or the offender is stateless but resides in India (such as an illegal immigrant), or the offense is committed against Indians.

Another notable inclusion relates to a designated court to provide a speedy trial for offenses relating to hijacking. The accused shall be tried by a sessions court that is notified to be a designated court by the concerned state government. This court shall, as far as practicable, hold the trial on a day-to-day basis.[8]  The new law also mandates the central government to confer powers of investigation, arrest, and prosecution on any officer of the central government or National Investigation Agency.

Critical Analysis

The New Anti-Hijacking Act has introduced some reforming changes to the legislation. From the punishment perspective, the act prescribes death penalty where hijacking results in the death of a hostage or a security personnel and life imprisonment in all other cases. It also provides for capital punishment against conspirators and abductors of any of the acts of hijacking, so that all those involved, directly or indirectly, are brought to the book.

Section 5 of the Act prescribes punishment for the acts of violence connected to hijacking. It states that if a person who is a party to the offense of hijacking commits an act of violence against a passenger or a crew member of the aircraft, such person will be liable and punishable for the offense 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.[9]

The Act also aims to punish not only the actual act of hijacking but even a false threat that might seem genuine. It basically means that a hoax call that forces an aircraft to land at a place that is different from the destination, then it would be treated as hijacking and would attract similar punishment.

Although the 2016 Act showed great improvements as compared to previous legislation, it still fell short in specific provisions. The term ‘aircraft’ under Section 2(b) of the Act, identifies any aircraft as an aircraft regardless of whether it is registered in India. But it excludes an aircraft that is used in customs or police service, which should have been included.

The Act failed to cover ‘hoax calls’ with proportionate punishment. Hoax calls create panic which results in serious complications for passengers. They also create problems for security agencies who end up wasting resources and time in verifying the veracity of the call.

Furthermore, even the terms ‘hostage’ and ‘security personnel’ have not been defined in the act. The act only prescribes punishment with death where the offense of hijacking results in the death of hostage or security personnel. In the case of an intervention, there is a possibility of the death of other persons and significant punishment needs to be prescribed. The act does not give immunity to ground staff and security personnel at the airport. While an aircraft on the ground or is being prepared for departure, a potential hijacker may commit an act of violence against the ground personnel.

The new Act defines the punishment for acts of violence connected with hijacking and covers only violence against passengers or airline crew. It, therefore, overlooks violence against ground staff or security personnel, which is equally important. The act should also have considered providing extra-territorial status or immunity from jurisdiction for the benefit of the passengers and the crew in the state to which an aircraft may be hijacked. This type of rule, which should also apply to all cases of unscheduled landings in a foreign country, is urgently needed, particularly in the event of the unlawful seizure of an aircraft.[10]

Conclusion

The 2016 Act has a broader scope than the 1982 Act. With the inclusion of severe punishments, penalties, and seizure of property, notorious individuals will refrain from hindering the functioning of the aviation sector. The current provision, despite being comprehensive, needs certain additions to it. Such modifications could be made by amendments or by judicial interpretations. In general, the new legislation is a welcome move as India tightens its stand on dealing with hijacking incidents. Hijacking has become a significant area of aviation law causing great concern globally. India has shown its concern by reconditioning its legislative machinery and by establishing effective means of battling hijacking. The world has not witnessed any major hijacking case in a long time and hopefully, it shall remain so.


[1]Shrivastava Vandana “An overview of the Anti-Hijacking Act, 2016”, iPleaders, https://blog.ipleaders.in/overview-anti-hijacking-act-2016/ (accessed on September 12, 2020)

[2] Id at pg. no 2 citation 1

[3] The SCC online blog, https://www.scconline.com/blog/post/2016/05/21/anti-hijacking-act-2016-no-30-of-2016/ (accessed May 21, 2016)

[4] Id at pg. no. 2 citation 3

[5] Id at pg. no. 2 citation 3

[6] Id at pg. no. 2 citation 3

[7] Tiwary Deeptiman “Explained: Hijacking Act; why a hoax led to a life term” The Indian Express, June 13, 2019, https://indianexpress.com/article/explained/hijacking-act-why-a-hoax-led-to-a-life-term-5777795/

[8] Varma Satvik and Vikrant Panchnanda “The Anti- Hijacking Act, 2016: An Explainer” The Wire, June 1, 2016, https://thewire.in/law/the-anti-hijacking-act-2016-an-explainer

[9] Id at pg. no 2 citation 1

[10] Id at pg. no. 4 citation 8

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