Analysis: The Anti-Hijacking Act, 2016

Introduction:

Hijacking a plane is a perfect opportunity for criminals to advance their interests using passengers in the hijacked aircraft as their items in the barter system, where they negotiate with the government.  Indeed, in the past, criminal has successfully secured the release of prisoners using this very approach. The Anti-Hijacking Act, 1982 was passed by both the houses of the parliament for suppression of unlawful seizure of aircraft’s registered in India.[1] As per the act, whoever onboard an aircraft in flight, unlawfully, by force or threat of force or by any other form of intimidation, seizes or exercises control of that aircraft, commits the offence of hijacking of such aircraft.[2] The punishment for the same was life imprisonment and fine.

This Act stayed in commission for a very long period but even after that, the prolonged commination of hijacking aircraft by militant organizations like The Jammu Kashmir Liberation Front (JKLF) and United Jihad Council (UJC) etc. continued which compelled our policymakers to review The Anti-Hijacking Act, 1982 and replace it with an amended act to prepare the country from the baneful attacks, which cause deaths and destructions. The Government replaced The Anti-Hijacking Act, 1982 with The Anti-Hijacking Act, 2016 because it considered the act as an obsolete act for the emerging threats and thought that it was not suitable for modern-day hijack techniques. In 2010, many reforms were brought in the Act of 1982. However, there were no amendments with regard to it.

Then finally on May 9, 2016, the bill pass by the Lok Sabha and on May 13, 2016, the President. Pranab Mukherjee gave his assent to the bill and further on May 16, 2016, it was notified in The Gazette of India. Finally, the Act came into force on July 5, 2017, thereby forming a new Anti-Hijacking Act, 2016. The new Act of 2016 directs to enforce the Hague Hijacking Convention. Also to the 2010 Beijing Protocol Supplementary to the Convention. The Hague Convention sets out the principle of “aut dedere aut judicare”. This means Obligation to extradite or prosecute as per International Law Commission. How does this principle work in here? A country that is a member of the Convention must prosecute an aircraft hijacker; if no other country requests the Hijacker’s extradition for prosecution. Then the 2010 Beijing Protocol Supplementary, which amends and adds sections and clauses etc. It came into effect on January 1, 2018, and as of December 16, 2019, it had 32 signatories.

Amendments and Government’s Stance

The amendments were:

1. The 2016 Act revamped section 3 – The crucial amendment made under The Ant-Hijacking Act, 2016 was in section 3 of the Act, which brought changes in the definition of the word, “hijacking”, Section 3(1) of the Anti-Hijacking Act, 2016 says “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”[3] and Section 3(1) of Anti- Hijacking Act, 1982 said “Whoever onboard an aircraft in flight, unlawfully, by force or threat of force or by any other form of intimidation, seizes or exercises control of that aircraft, commits the offence of hijacking” [4]The only difference between the two definitions was the use of “technological means” and this is the first time that the term “technological means” is used in the bill. This means that the hijacker is not supposed to be physically present in the aircraft during the hijack. Even if he is coordinating through technological means from a different place, city or a country i.e. Making a hoax call and asking the aircraft to land in some other place. Than the place of arrival and is delivering orders to his people in the aircraft. Then he/she is responsible for the hijack and can be held equally liable under this section. Along with this, the person can also be held liable if he is accompanying the hijackers or abetting someone to hijack an aircraft or unlawfully and intentionally helping the hijackers to evade from police interrogation and punishments. This has covered most of the possibilities and thus can show that stringent laws are helpful.
2. Punishment and Government’s role – In 2016 when a lot of countries were removing the clause of capital punishments to the criminals from their constitution, the Indian government made a notable change in this Act. Punishment as per section 4 of the Anti-Hijacking Act, 2016 says [“Whoever commits the offence of hijacking shall be punished– (a) with death where such offence results in the death of a hostage or of a security personnel or of any person not involved in the offence, as a direct consequence of the office of hijacking; or
   (b) with imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life and with fine, and the movable and immovable property of such person shall also be liable to be confiscated.”][5] Whereas punishment as per section 4 of the Anti- Hijacking Act, 1982, says “Whoever commits the offence of hijacking shall be punished with imprisonment for life and shall also be liable to fine”[6] So the clause of capital punishment was included in case of any death of any person other than the hijackers on the aircraft. Addition to this, section 6(2) of the Act gives powers to the Central government to investigate, arrest, and prosecute any officer of the Central Government or National Investigation Agency (NIA) if there is any sort of suspicion.
3. Universal Jurisdiction – The change of Jurisdiction of law is one more important amendment. Section 7 of the Act says, the provisions now deal with the Indian hijackers hijacking aircraft within or outside the territory of India or hijacking aircraft which has Indian registration and has Indian passengers in a foreign plane with the offenders. So under all these circumstances, the Act is applicable.

Ministry of Civil Aviation proposes to frame rules to implement the provisions contained in the Anti-hijacking Act, 2016. Section 20 of the Act gives powers to the Central Government for framing new rules if it is required and then it has to present the new policies or rules to the houses of the parliament for discussion and implementation when the house is in session. If they pass then it is implemented and if not, then it remains unaffected.

First Judgement under The Anti-Hijacking Act, 2016

In the case of Birju Kishorekumar Salla vs State Of Gujarat[7], the Hon’ble court found Mr Salla guilty under the Anti-Hijacking Act, 2016 because he left a threatening note in the aircraft of Jet airways for his personal and bizarre reasons, where he thought that by leaving a threat note in the washroom of the aircraft, the Jet Airways will be shut down and furtherance to this he anticipated that his girlfriend will come back to him in Mumbai, for which he was held liable and now he is serving his life imprisonment in jail and was also asked to pay five crores as the fine amount. Though his intentions were not to technically hijack the aircraft or hurt anyone but even leaving a threat note come under the unlawful act and so he was held liable.

Conclusion

There are always two sides of a coin and similarly, there are both advantages and disadvantages of this Act. But if we look at the brighter side, the Anti-Hijacking Act, 2016 cover most of the loopholes. It was to make stringent laws to stop such dangerous acts. With the implementation of this act, the Indian government surely tighten its stand against these inhuman incidents. Specially related to hijacking. As it brought both manpower and technology to work together more vigilantly; for the safety and security of passengers.

Before this Act, India witness around 19 hijacks. It had a bad impact on the country so by implementing this Act. A warning give to these organizations that they should take a step back. Because Indian lawmakers frame laws for the security of its people. If anything comes upon the citizens of India then they can go to any extent to give justice. There is always a scope of betterment in everything so even this act needs some improvements. But right now it is better than what we had previously.

References:

[1] The Anti-hijacking Act, 1982, No. 65, Acts of Parliament, 1982(India).

[2] The Anti-hijacking Act, 1982, No. 65, Acts of Parliament, 1982(India).

[3] The Anti-hijacking Act, 2016, No. 30, Acts of Parliament, 2016(India).

[4] The Anti-hijacking Act, 1982, No. 65, Acts of Parliament, 1982(India).

[5] The Anti-hijacking Act, 2016, No. 30, Acts of Parliament, 2016(India).

[6] The Anti-hijacking Act, 1982, No. 65, Acts of Parliament, 1982(India).

[7] Appeal (Cr.) No. 385 Of 2018