A CRITICAL ANALYSIS OF THE ANTI-HIJACKING ACT 1982

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This article is written by Saumya Shikha, of 4^th Year of Jogesh Chandra Chaudhuri Law College, Kolkata, an intern under Legal Vidhiya.

Abstract :-

Lawmakers must be able to cater the eradication of most the threatening form of violence that lingers the mass, i.e. aircraft violence through hijackings. The Anti-Hijacking Act 1982 was one such effort and also the very recently amended The Anti-Hijacking (Amendment) Act, 2016 follows almost the exact footprints of the parent Act. Changing definitions of the very offence, “hijacking” gives us the idea of how such crimes have evolved with human modernisation. This could be well understood as the cockpit doors now are almost bullet proof, planes are built more sturdy, ground staffs are well trained and equipped, crew better trained and other basic aviation essential combined.

Keywords :-

Aerial hijacking, Aircraft, Hague Convention, Criminal Jurisdiction, Life imprisonment.

Introduction :-

Etymological history :

Pre-revolution France or easily imagined the predominant aristocrat France of 1789 to 1799 under King Louis XVI accounts for the first usage of the word “hijack” as “echaquer”. It so happened that the poverty-stricken, broke Frenchmen, especially the peasant class would rob the wealthy aristocrats to physically remove their possessions. Tracing the Latin root of it would be “eiacere” which almost totally overlaps with the French meaning. As per the Arabic language, it is “hijar” which gives out to protect or secure. Also taking note of the 17^th century frequent ship wreckages, it meant seizing of the ships and protection against the pirates. Over time the dynamics changed and so did the word for it being called as “ijack” by the English. This perhaps happened by them mishearing or repeated fall out could be another probable reason too. Hijacking is rooted in the Arabic word “hijar” which means “to secure” or “to protect.” In the 17th century, it was used to refer to the act of seizing a ship and protecting it from pirates. Over time, the term evolved to refer to the act of taking control of an aircraft or other vehicle during flight. Today, the term is often used in the context of security and safety, particularly in relation to air travel. In even simpler terms, it means almost exclusively to the taking over using force and threat of an aircraft or other vehicle by very often group of terrorists who wish it to go to a different destination as per their motive or somewhere it wasn’t destined to reach or take off from in the very first place. In order to combat such acts, herein primarily focusing on the Anti-Hijacking Act, 1982 with some similar ones have been aptly described. [1]

Numerous international conventions have been openly debated, wisely framed, and agreed upon by almost every State of the closely knit global family for the one stinging, ultra critical phenomenon and unsympathetic act, being the mass terror eradication executed via airplane hijackings.

International Treaties, Conventions and Protocols :-

Aerial Hijackers or the air pirates have done something what Wilbur and Orville Wright wouldn’t have imagined up until they were alive. These acts are equally dangerous as their prototype – the sea pirates. Certain protocols have hence been implemented in combating and lessening the posed threats of the aforementioned ultra critical situations. Skyjacking instances were very common in the last century and the numbers have significantly gone down now. Incidents of hijacking have been around almost as long as human flight itself with suspected hijacks dating as far back as 1919, and the first recorded hijacking in 1931. But they were still relatively rare until the 1950s. [2]

The International Civil Aviation Organization, abbreviated (and herein after to be used) as the ICAO, is a specialized UN agency formed to monitor and coordinates the principles and techniques of international air navigation, and fosters the planning and development of international air transfer to ensure safe and orderly growth. It is headquartered in Montreal, Canada. [3]

Its strategic objectives include

Safety
Capacity and Efficiency
Security and Facilitation
Economic Development and
Environmental Protection

Tokyo Convention, 1963

It was the Tokyo Convention which was the first joint effort of the nation states in signing such a convention for the novel cause to penalise civilian aircraft disturbances. This international treaty has 40 signatures at its initiation meaning thereby there are forty founder members and currently as of 2013, 123 members. As per this Convention and being first of its kind the recognition of certain powers and immunities under the wing of international aviation law came into light.

The main aim of the Tokyo Convention was to provide security of life to the on-board passengers, safety of the aircraft. Significant powers were granted to the Commander in Chief of the aircraft, the crew members and others.

Hague Convention, 1970

It is a multi-treaty which applies exclusively to the civilian aircraft. The principle of aut dedere aut judicare was devised in this convention. It has 185 members as of 2013.

Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft, 2010[4]

It came into force in January, 2018 and is commonly known as The Beijing Protocol. It widened the scope of the Hague Convention and also is the backbone of the Indian Anti-Hijacking law.

Overview of the Act i.e. THE ANTI-HIJACKING ACT, 1982 :-

First and foremost the Indian Act finds its essence and is in consonance with the Convention for the Suppression of Unlawful Seizure of Aircraft, popularly known as the Hague Convention held and signed in December, 1970, as u/s 2 (d) of the Act. It is a central act as u/s 5A (1) and the jurisdiction extends pan India, including its territorial waters and airspace. The Act provides for the punishment of individuals involved in hijacking or attempting to hijack an aircraft registered in India or a foreign aircraft while it is in Indian airspace. It also covers offences related to the threat of hijacking. The Anti-Hijacking Act of 1982 prescribes severe penalties, including the death penalty, for hijacking offences resulting in death or for causing grievous harm. The act empowers the Central Government to confer jurisdiction on any court outside India to try offenses under this Act if the accused is in the custody of such a court. Also as per (2)[5] of the same section, all the police officers and government officers are to assist the Central Government.

As per section 2 (a)[6] of the Act, aircraft is defined as “any aircraft, whether or not registered in India, other than a military aircraft or an aircraft used in customs or police service”. This roughly means any aircraft travelling across State boundaries i.e. the designated airspace channels and territory need not necessarily always be registered in India. So to say, if a Quantas Airlines plane is hijacked in the Indian territory, the aircraft’s registration wouldn’t be seeked or questioned for that matter. It also must be kept in mind that as per section 2 ( c)[7] Convention country is the country in which the Hague Convention is in force.

Chapter II of the Act talks of Hijacking and connected offences. The punishment for hijacking and also of those violence connected with hijacking. Section 6 talks of the jurisdiction while 6A mentions about the designated courts.

Additionally, chapter III provides for the extradition of the offenders, while 7A[8] lists procedure of bail.

Primarily speaking there are following roles of the government under the Act.

The Anti-Hijacking Act of 1982 in India outlines the role of the government in dealing with hijacking incidents. Here are some key aspects of the government’s role under this act:

1. Declaration of the offence: The central government has the authority to declare hijacking as an offence which is further punishable under the Act.

2. Investigation and prosecution: The government can order for the investigation and prosecution of the concerned offence under the Act. Law enforcement agencies, such as the police and other relevant authorities with their respective subsidiaries, work as per the direction of the government to investigate hijacking incidents.

3. Extradition: The government may take steps to execute proper extradition of the suspect or accused of hijackings. Extradition is the legal process by which a person accused of a crime in one country is handed over to the authorities of another country for prosecution.

4. Robust civil aviation: The Act empowers the government to take necessary measures to ensure the security of aircraft, passengers, and crew members. This includes authorizing the use of force, when necessary, to prevent the commission of an offence related to hijacking. Robust civil aviation legislations can be brought about to ensure advanced safety.

WHY was the act amended, OLD v. NEW?

Every act formulated, debated and passed – out of somewhere or the other has to have some loopholes, as in the gravity of crimes have enhanced, apparatus and equipment in the aircraft advanced, bulk and frequent travels started, needs and desires of both the people and the terrorists grew, geopolitical dynamics made headway as well. Just like every humanly made thing is inherited to be flawed, The Anti-Hijacking (Amendment) Act, 2016, thus, repealed and replaced its preceding 1982 Act. It has hence broadened the penal provisions, cleared confusions and tried making up to the prevalent shortcomings present in the former which it wasn’t able to cater.

Brief about the amended Act of 2016- THE NEW ACT :-

The sole importance of the Anti-Hijacking Act, now lies in the amended Act, 2016. The draft of which was proposed in 2010. The new central act applies to the offences committed outside India too. It is in consonance to the Hague Convention of 1970 and the Beijing Protocol of 2010. In contrast with the former Act, the definition of Hijacking u/s 3 of the 2016 Act has certain additions.

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.

All such acts falling under (1) are to be considered hijacks in addition to the following as per section 3 which make up (2).

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; or
attempts to commit or abets the commission of such offence; or
organizes or directs others to commit such offence or the offence specified in clause (a) or clause (b) above;
participates as an accomplice in such offence or the offence specified in clause (a) or clause (b) above;
unlawfully and intentionally assists another person to evade investigation, prosecution or punishment, knowing that such person has committed any such offence or the offence specified in clause (a) or clause (b) or clause (c) or clause (d) above, or that such person is wanted for criminal prosecution by law enforcement authorities for such an offence or has been sentenced for such an offence.

That is to say the new Act is inclusive of the multiferous acts as in making threats, attempts and abetment of committing hijacks.

Bringing into light the false hijack scare of 2017, the consequence of which let to the ad hoc landing in Ahmedabad of the Jet Airways Mumbai Delhi flight. It becomes necessary to point that as per the new amended act, such false attempts apart from the actual hijacks are also punishable. Speaking of which the accused of this false attempt was punished with life imprisonment and an amount of five crore as fine.

Punishment now has certain changes, if the offender causes death of any passenger, crew member or hostage, he/her too is punishable with death.

The onus of proof as u/s 101 of the Indian Evidence Act or onus of innocence for the accused lies on him according to the new Act. The provision of 5A finds no place in the new Act.

Penalty :-

As per section 4 of the Act, the offender shall be punished with imprisonment for life and shall also be liable for fine. If any person dies, being hostage or a security person and not associated with the undergone offence of hijacking, as a direct consequence of the act or the series of acts shall be punished u/s 4. Also the movable and immovable property of the offender shall be confiscated.

Section 5, additionally mentions and describes the penal provisions relating to acts of violence connected with hijacking. It is read as follows, “ if a person who is party to the offence of hijacking commits an act of violence against any passenger or a crew member of the aircraft, shall be punishable for the offence committed by him”. It can be better understood as, for instance, if any hijacker caused hurt to a hostage or passenger on board, he would be made liable for punishment under the relevant sections and provisions of the Indian Penal Code, 1860.

Provision / Concept of EXTRADITION:-

As per the Hague Convention, it lists the Latin saying “ aut dedere aut judicare ” which when translated in English means, under the umbrella of Public International Law, States under the Convention, are immuned of legal obligation to prosecute the offenders accused of committing serious international crimes as in aircraft hijackings described all along here, when no other affected or concerned State has requested the extradition of the offender.

Extradition in the simplest terms would mean the cooperative relation between two nations in questions guarded upon by the public international law provisions, where country A requests country B for the surrender of an individual most certainly an offender in State A for prosecution. In relation to the Anti-Hijacking Act, extradition for such an offender can be seeked if necessary.

Case Study :-

Countless incidents have taken place in history about airplane hijackings. [9]

Kandahar Hijack, 1999.

One of the most infamous, threatening and fortunately enough the last terrorist hijack that India has seen happened in Kandhar 1999, where the passengers on board had the most fearful experience for days in the Indian Airlines Kathmandu-Delhi Airbus 300.

The flight was hijacked as soon as it entered the Indian airspace. The ransome was the release of criminals like Masood Azhar who further were prominent conspirators of several attacks in India.

9/11 Attack, 2001.

Another most gruesome attack that not just America but also the world has seen till date was the 9/11 Twin Tower Trade Center suicide bomber attack in New York and Washington. The series of hijackings were carried by 19 members of the Islamic extremist group the Al-Qaeda. [10] It resulted in the casualties of the 246 passengers on board among the 2750 deaths reported in total including those lost in the attack at Pentagon too. The Al-Qaeda men firstly hijacked the plane and then crashed it to the Twin Towers. It led to massive damage to life and property and evident uproar against terrorism and to prevent any further 9/11.

Conclusion :-

It holds true that indeed aircraft hijackings had become one of the major disturbances in the global magnitude, which isn’t the case today though. Things have drastically changed after the 9/11 attack. Airport advanced securities have gotten more stringent, technological progress and growth too contribute daily in safeguarding the air travellers. It must be pondered that our laws must be this tough and rough that such hijackings don’t become a sort of incentive in the release of hardened criminals like Masood Azhar which definitely is the failure of our authority, security and crisis management system.

[1] https://ourworldindata.org/airline-hijackings-were-once-common-but-are-very-rare-today

[2] https://ourworldindata.org/airline-hijackings-were-once-common-but-are-very-rare-today

[3] https://www.icao.int/Pages/default.aspx

[4] https://www.congress.gov/treaty-document/116th-congress/4?s=1&r=4/

[5] Anti-Hijacking Act, 1982 (bareactslive.com)

[6] Anti-Hijacking Act, 1982 (bareactslive.com)

[7] Anti-Hijacking Act, 1982 (bareactslive.com)

[8] Anti-Hijacking Act, 1982 (bareactslive.com)

[9] https://timesofindia.indiatimes.com/india/List-of-Hijacks-in-India/articleshow/1897903087.cms

[10] September 11 attacks: What happened on 9/11? – BBC News

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