India Tightens Its Anti – Hijacking Law

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Terrorism  has  been  an  age-old phenomenon. Current day conditions have however turned terrorism into a much more international phenomenon. The hijacking of an Indian Airlinesight on 24th December 1999 from Kathmandu, Nepal to Kandahar, Afghanistan and the brutal and gruesome hijacking incidents in the United States on 11th September 2001 when hijacked civilian aircrafts were used  as missiles for causing mass destruction in addition to numerous other threats to hijack aircrafts by outlawed groups/organizations in the recent past, necessitated a fresh and thorough examination of the country’s preparedness to face such exigencies. The Anti- Hijacking Bill was introduced in the RajyaSabha on 2nd December 2014 and nally passed by the LokSabha on 9th May 2016. The said Act repealed the Anti- Hijacking Act, which goes back to 1982 and to give effect to The Hague Convention of 1971, and the Beijing Protocol of 2010.

The Anti-Hijacking Act of 1982 was last amended over two decades ago in 1994. The aim of this Actis to (a) extend the scope of the anti-hijacking law in India as stated in the Current Act; (b) to widen the scope of certain denitions and to insert a new denition ‘in-service’ to cover the offence against aircraft even when it were on the ground or under preparation for departure; (c) to widen the scope of’ hijacking’; (d) to include the conscation of movable and immovable property as part of punishment; (e) to widen the jurisdiction and to widen the provisions relating to extradition by insetting new sub-sections (3) and (4) to section 3 in the Current Act.;(f) to provide procedures for seizure and forfeiture of property; (g) to provide for powers of investigating ofcers for forfeiture of property and appeal against the order of the designated authority and (h) to empower the Central Government to make rules in this regard.

Some of the notable features of this Act include bringing several acts within the denition of hijacking including (a) making a threat to commit an offence of hijacking or unlawfully and intentionally causing any person to receive such threat under circumstances that indicate that the threat is credible; (b) attempt to commit hijacking or abetment of hijacking; (c) organizing or directing others to commit such an offence as mentioned above in clause (a) or clause (b); (d) participates as an accomplice in such an offence or the offence as mentioned above in clause (a) or clause (b); and (e) unlawfully and intentionally assists another person to evade investigation, prosecution or punishment, knowing that such a person has committed any such offence of Hijacking or an offence as mentioned above in clause (a) or clause (b) or clause (c) or clause(d) or that such person is wanted for criminal prosecution by law enforcement authorities for such an offence or has been sentenced for committing such an offence as stated above.

The Act goes a step ahead by even dening the term ‘in- service’. An aircraft shall be considered ‘in service’ from the beginning of the pre-ight preparation of the aircraft by ground personnel or by the crew for a specic ight until twenty- four hours after any landing. Furthermore, in case of a forced landing, the ight shall be deemed to continue until the competent authorities take over the responsibility for the said aircraft and for the persons and property on board such aircraft. The said Act provides for stringent punishments such as death penalty where the offence results in the death of a hostage or security personnel and life imprisonment in all other cases. It also provides for the conscation of moveable and immoveable property of the accused.

For any acts of violence committed in connection with the hijacking, the accused shall be punished with the same punishment as provided under the laws in force if such act had been committed in India. Another notable inclusion in this Act has been that of a designated court on  order  to  provide  a speedy trial while trying the offence of hijacking as stated above. The accused person shall be tried by a  Sessions  Court, which is notied to be a designated court by the concerned state government. In case the investigation is carried out by the National Investigation Agency, such designated court shall be a court set under the provisions laid down in the National Investigation Agency Act, 2008.

Such a designated court shall as far as practicable, hold the trial on a day-to-day basis. The offences as mentioned aforesaid shall be deemed to have been included as extraditable offences and provided for in all extradition treaties made by India with countries that are party to the Hague Convention. The Central Government may confer powers of investigation, arrest and prosecution on any ofcer of the Central Government or the National Investigation Agency.However, the Act has its own set of aws as well. The term ‘aircraft’ is identied as any aircraft whether or not it is registered in India. This excludes a military aircraft or an aircraft that is used in customs or police service. The term ‘military aircraft’ has been dened but the term ‘aircraft’ used in customs or police has not been dened in the Act therein leading to ambiguity. One of the major shortcomings in the Act is the exclusion of the word ‘preparation’. The term ‘preparation’ is an offence punishable under the Indian Penal Code 1860 in case of inter alia (a) preparation to wage war against the Government of India and (b) depredation against any nation which is at peace with the Government of India.

A new provision should be also inserted in the Act to cover ‘hoax calls’ with a proportionate punishment. This is because instances of receiving hoax calls only creates  panic  and  scare resulting in serious complications for passengers. It also causes a nightmare for security agencies that end up wasting their resources and time to verify the authenticity of the hoax calls. Moreover even the terms’ hostage’ and ‘security personnel’ have not been dened in the Act. The Act as stated above, only prescribes a punishment with death where the offence of hijacking results in the death of a hostage or security personnel. In the case of an intervention especially an armed intervention by security personnel, there is a possibility of the death of other persons.

This may be by way of cross-re or throwing of explosives or crashing of the aircraft. Therefore in case of any such event, the maximum prescribe penalty should be imposed on the offender that results in death of any person as a direct consequence of the offence of hijacking. Another noteworthy omission we feel is that there has been a  non-mention  of any ground staff and security personnel at the airport. While the aircraft is on the ground or is being prepared for departure at the airport, the hijacker may commit the act of violence against any of the ground staff or security personnel at the airport. The Act does not have a provision which provides for taking appropriate measures, when any of the acts that come within the purview of hijacking are committed, in order to restore control of the aircraft to its lawful commander  or  to  preserve the commander’s control of the aircraft.

The incident of September 9, 2001 in the United States of America or 9/11, where aircrafts were used as weapons also played a key role in the  imposition of capital punishment. However one problem may confront the Indian Government during a hostage crisis because of this inserted provision of capital punishment. This is that ensuring death penalty for all hijacking related offences might close opportunities for negotiation and settlement to save lives of passengers caught in the middle of such hijacking incidents. It is regrettable that the Act does not provide for some kind of extra- territorial status or immunity from jurisdiction for the benet of the passengers and the crew in the State to which the aircraft has been 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 an unlawful seizure of an aircraft.

However, on the whole, this new legislation is a welcome move as India tightens its stand on dealing with hijacking incidents. Hijacking has become a signicant area of international aviation law causing great concern globally. India has showed its concern for this by bringing its legislative machinery in order by establishing an effective means of combating hijacking.

About the Author: He is an Advocate practicing in New Delhi and is also the Founder & Managing Editor of India Law Journal. He is a graduate of Gujarat National Law University, Cornell University and Leiden University.