Anti-Hijacking Act, 2016

Context:

NIA (National Investigation Agency) Special Court in Ahmedabad recently pronounced its judgment in the Jet Hijacking Case, making the accused Birju Kishor Salla the first convict under the recently passed, Anti-Hijacking Act of 2016.

About:

Anti-Hijacking Act, 2016

• It received President’s assent on 13^th May, 2016 and intends to give effect to the Convention for Suppression of Unlawful Seizure of Aircraft and for related matters.
• This act repeals the Anti-Hijacking act 1982 without affecting certain rights, privilege, obligations or any actions taken in pursuance 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forfeiture and any such investigation, penalty, forfeiture or remedy may be imposed as if the said Act had not been repealed.

Why the new Anti-Hijacking Act of 2016?

• The Anti-Hijacking Act, 1982, was last amended in 1994.
• After the hijacking of Indian Airlines Flight IC-814 in December, 1999, it was felt necessary for providing the award of death penalty to perpetrators of the act of hijacking.
• The incident of 9/11, where aircrafts were used as weapons, also created the need to further amend the existing Act.
• This new act replaced the Anti-Hijacking Act, 1982, which the government considered obsolete in the face of emerging threats. The new Act aims to enforce The Hague Hijacking Convention and the 2010 Beijing Protocol Supplementary to the Convention.
• The Hague Convention (Convention for the Suppression of Unlawful Seizure of Aircraft) sets out the principle of aut dedere aut judicare, a state that is party to the Convention must prosecute an aircraft hijacker if no other state requests his or her extradition for prosecution.
• The 2010 Protocol Supplementary, which made amendments and additions, came into effect on January 1, 2018, and had 27 signatories as of September 2018.

Threat counts as hijack

• The Act aims to punish not only an actual act of hijacking, but even a false threat that may appear genuine.
• It practically means that a hoax call that forces an aircraft to land at a place different from the place intended would be treated as hijacking and attracts similar punishment.
• The Act takes into account that armed possession of an aircraft may not be necessary for hijacking and that it may be hijacked remotely through a technological threat.
• Under section 3(1): “Whoever unlawfully and intentionally seizes or exercises control of an aircraft in service by force or threat thereof, or by coercion, or by any other form of intimidation, or by any technological means, commits the offence of hijacking”.
• It adds that “a person shall also be deemed to have committed the offence of hijacking” if such a person “makes a threat to commit such offence or unlawfully and intentionally causes any person to receive such threat under circumstances which indicate that the threat is credible”.
• Hijacking attempts, directing others to commit hijacking, being an accomplice and assisting another person to evade investigation are punishable as hijacking. Whether or not actual hijacking has even been attempted, if a person has agreed with one or more persons to commit such an offence and any act in furtherance of the intention has taken place, it shall be deemed as hijacking.

Punishment

• If hijacking leads to death of a passenger or a crew member, it is punishable with death. If not, the hijacking is punishable with life imprisonment.
• The Act of 2016 also provides for fine and confiscation of movable and immovable assets. The hijacker would also be charged with any other offence that takes place during the hijacking.
• It also provides for detention in custody for up to 30 days, and a bail application will not be entertained unless the public prosecutor is given a chance to oppose it. If opposed, the court would have to be reasonably satisfied that no offence of hijacking was committed.

Significance of the new act:

• The new legislation is a welcome move as India tightens its stand on dealing with hijacking incidents. Hijacking has become a significant area of international aviation law causing great concern globally.
• India has showed its concern by updating its legislative machinery and by establishing an effective means of combating hijacking.
• This act was introduced for more vigilant for the safety and security of passengers in case of hijacking. It will help to overcome drawbacks of the existing crisis management system in dealing with cases of hijacking.
• It proposes to give powers to the agencies and forces for stern action against those making phone calls and doling out hoax threats.
• Standing Committee had endorsed the provision to award capital punishment to abettors and conspirators committing any act defined as hijacking.
• However, this committee had also opined that if death penalty was ensured for all hijacking offences, then the opportunity for negotiation or settlement to save the lives of passengers would be closed. It had also asked whether death penalty would serve as deterrence to hijackers on suicide missions.

Old Act vs. new Act

• The key new introductions 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 had disembarked. Under the new 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”.
• In case of forced landing, “the flight shall be deemed to continue until the competent authorities take over the responsibility for the aircraft”.
• The new Act applies even if the offence is committed outside India but the aircraft is registered in India or leased to Indians, or the offender is Indian, or the offender is stateless but lives in India (such as an illegal Bangladeshi migrant), or the offence is committed against Indians.

Shortcomings

• The Act of 2016 has some shortcomings. The term ‘aircraft’ is identified as any aircraft, whether or not it is registered in India. But it excludes an aircraft that is used in customs or police service, which should have been included.
• Provision to cover ‘hoax calls’ with proportionate punishment should have been implemented. Hoax calls create panic, resulting in serious complications for passengers. They also cause a nightmare for security agencies that end up wasting resources and time to verify the authenticity of the call.
• Moreover, even the terms ‘hostage’ and ‘security personnel’ have not been defined 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 and consequential punishment needs to be prescribed.
• The Act also does not protect ground staff and security personnel at the airport. While an aircraft is on the ground or is being prepared for departure, a prospective hijacker may commit an Act of violence against the ground personnel. In its current form, the 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 necessary.
• 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.

Way Forward

• First and foremost is to ensure to use the model of awareness to identify the threats in the environment around you and take the appropriate steps to take action.
• To ensure people are holistically protected from hijacking one need to look at home security measures as well.
• Quick reaction team and perimeter patrolling to be strengthened.
• Manning of all cargo gates and vehicle entry gates will be strengthened with strong armed support.
• Intensive checking of vehicles entering car parking area to preclude possibility of car bomb attacks.

Practice Question

Critically examine the issues arising out of design and implementation the Anti-Hijacking Act, 2016.