THE ANTI-HIJACKING ACT,1982

Admin

1 year ago

ABSTRACT:

This article delves into how India enacted the Anti-Hijacking Act of 1982 as legislation to prevent airplane hijacking. The statute imposes severe sanctions, including the death penalty in situations where the hijacking causes a fatality, on those who engage in hijacking. In order to guarantee the safety and security of domestic air travel, the act gives the Indian government the authority to take the required steps to stop hijacking attempts and bring charges against hijackers. One important piece of legislation that tries to counteract hijacking risks to civil aviation is the Anti-Hijacking Act of 1982. The Act was passed in reaction to the rising number of hijackings that were occurring at the time. Examining this Act’s efficacy in preventing hijackings, safeguarding passengers and crew, and guaranteeing the prompt conviction of hijackers are all important aspects of a critical evaluation. The Act’s provision for harsh penalties for hijackers, including the death penalty, is one of its strongest points. This harsh punishment serves as a deterrent by making it clear that hijacking is not acceptable. In order to ensure a prompt response to hijacking incidents, the Act also gives authorities the authority to deal with hijackers by using force if required.

KEYWORDS:

Anti-Hijacking act, Aircraft Hijacking, No-fly list, Terrorism, Extradition, Air marshal program. Aviation Security, High jacking offenses, Penalties, Security Measures, International Aviation.

INTRODUCTION:

[1]The illegal taking of an Associate in Nursing craft by an individual or group is known as aircraft hijacking. Most of the time, the hijackers force the pilot to fly in accordance with their instructions.

The Anti-Hijacking Act, 1982, also known as the Associate in Nursing Act, was passed by the Indian Parliament in 1982 with the intention of suppressing the unauthorized seizure of aircraft registered in India. According to the act, anyone on board a craft that is being used for unlawful purposes and tries to take control of it using force or threats will be charged with hijacking. If proven, the social control under such a charge would be jail time and a fine. There are serious concerns facing the international community, particularly the International Civil Aviation Organization, due to the rise in the variety of hijacking incidents and the growing threats to the safety of aircraft flights. In order to address this issue and punish the hijackers, numerous conventions are enacted. The increasing likelihood of aircraft hijackings worldwide prompted the enactment of the Anti-Hijacking Act, 1982. In order to safeguard the security of passengers, crew, and the aircraft, the Act sought to impose strict procedures to prevent and combat hijacking occurrences. [2]With regard to hijacking attempts, this extensive legislation established a legal framework that outlined particular violations, associated punishments, and the processes for prosecution. India uses the Anti-Hijacking Act, 1982, as an effective legal tool to counter the threat of air hijacking. The Act is divided into sections that outline the specifics of violations, penalties, jurisdiction, and other procedural elements pertaining to incidents of hijacking.
The Anti-Hijacking Act of 1982 was primarily designed to implement the Convention for the Suppression of Unlawful Seizure of Aircraft, as well as issues related thereto (1971 Hague Convention).

The Indian Airlines aircraft, commonly known as IC-814, was hijacked in December 1999 while it was returning to the city from Kathmandu, Nepal. The Indian government made numerous attempts to negotiate with the hijackers but ultimately had to free three terrorists: Maulana Masood Azhar, Ahmed Saeed, ruler, and Mushtaq Ahmed Zargar. Every passenger suffered a fatality, while numerous others sustained injuries. Following an investigation, the Central Bureau of Investigation (CBI) charged ten people, seven of whom were evading capture along with the five hijackers. Life in prison was handed down to the three individuals who were accused of serving the hijackers.

HISTORY:

The Indian Parliament passed the Anti-Hijacking Act of 1982 in response to the growing concern over aviation safety around the world, especially after multiple high-profile hijackings in the 1970s and early 1980s. The Tokyo Convention on Offenses and Certain Other Acts Committed on Board Aircraft, which was ratified in 1963, is where the Anti-Hijacking Act first appeared. India is a party to this international treaty, which mandates that the contracting states take the appropriate steps to stop offenses against the safety of civil aviation. The Anti-Hijacking Act was passed by the Indian Parliament in 1982 after it became apparent that strict laws were needed to discourage such behavior.[3]

Throughout history, there have been numerous revisions and changes to the act. The 1999 hijacking of Indian Airlines Flight 814 revealed the flaws in the previous legislation which prompted the amendment. When the Narendra Modi government took office in 2014, they felt that the 1982 Act was insufficient to address contemporary hijacking methods. Moreover, the Act did not penalize false hijacking threats and lacked strict penalties and punishments. The Anti-Hijacking Bill of 2014 was presented to the Rajya Sabha and enacted in 2016. The Act of 1982 was superseded and replaced by a new one. The 2010 Beijing Protocol Supplementary to the Convention, to which India has acceded, and the Convention for the Suppression of Unlawful Seizure of Aircraft, 1970 (commonly known as the Hague Hijacking Convention) were given effect by the 2016 Act. A multilateral agreement, the Hague Hijacking Convention, commits its signatory states to forbid and penalize aircraft hijacking. Customs, law enforcement, and military aircraft are not covered by the convention; it only relates to civilian aircraft. Since it is an international convention, it only covers instances in which an aircraft takes off or lands outside of the nation in which it is registered. The convention also establishes the “aut dedere aut judicare” principle, which holds that when no other state has asked for the extradition of an accused individual, states are legally required by public international law to prosecute those accused of committing serious international crimes, such as aircraft hijacking.

THE ANTI-HIJACKING ACT 1982:

The Anti-Hijacking Act, 1982, is a powerful legal device employed by India to combat the threat of air hijacking. The Act is divided into sections that outline the specifics of offenses, penalties, jurisdiction, and other procedural elements pertaining to cases of hijacking. As per Section 3, an individual shall be deemed to have committed the act if they unlawfully and intentionally use force, threat, or intimidation to seize or take control of an aircraft that is in operation. The Act continues by elaborating on a number of situations and circumstances that fall under this definition, giving readers a thorough grasp of what is legally considered hijacking. Most importantly, Section 4 of the Act specifies the penalty for hijacking. Prior to the 2016 amendment, the penalty included a fine and a life sentence. This was further strengthened by the Anti-Hijacking (Amendment) Bill, 2016,[4] which introduced the death penalty in cases where a hijacking kills hostage or security personnel. Interestingly, Section 5 of the Act stipulates that even attempting to commit hijacking or serving as an accomplice carries the same penalties, indicating that the law takes these offenses very seriously and seeks to discourage potential offenders. Section 6 of the Act, which addresses jurisdiction, makes the law applicable regardless of the location of the crime, making it a useful tool for dealing with international crimes.

The historical case “N. Nagendra Rao and Co. vs. State of A.P.” [5]saw the Act strictly enforced. The Supreme Court noted that the Act gives the designated courts the authority to impose penalties upon conviction, indicating that hijacking is considered a serious offense. On May 13, 2016, the President signed it, with the goal of putting the Convention for the Suppression of Unlawful Seizure of Aircraft and Related Matters into effect. The Anti-Hijacking Act of 1982 is repealed by this act, but it does not affect any rights, privileges, obligations, actions taken in accordance with the act, legal proceedings, remedies, penalties, forfeitures, or other measures that may be applied as if the Act had remained in effect.

DEFINITION OF HIJACKING:

According to the bill, hijacking is the illegal and deliberate taking of control of an aircraft while it is in operation, whether through technological means, physical force, coercion, or any other type of intimidation. When a crew member or ground crew is preparing an aircraft for a particular flight, it is deemed to be in service, and this continues for 24 hours following any landing.
1) A person who unlawfully seizes or takes control of an aircraft while it is in flight, using force, threat of force, or any other form of intimidation, is guilty of hijacking that aircraft.

2) A person shall also be considered to have committed the crime of hijacking an aircraft if they attempt to carry out any of the acts mentioned in sub-section (1) with regard to any aircraft or assist in the commission of any such act.

3) For the purposes of this section, an aircraft is considered to be in flight whenever all of its external doors are closed after embarkation and until any of them are opened for departure. If an aircraft makes a forced landing, the flight is considered to continue until the appropriate authorities of the nation where the forced landing occurs assume responsibility for the aircraft, the people on board, and their belongings.[6]

LEGAL FRAMEWORK AND OFFENCES:

In the event that hostage or security personnel who is not connected to the hijacking incident dies as a direct result of the hijack, the perpetrator will be subject to punishment under Section 4 of the Act, which includes life imprisonment or death, a fine, and the seizure of the offender’s personal property. The Act’s Section 5 specifies the penalties for violent crimes related to hijacking. It stipulates that anyone involved in the hijacking offense will face consequences for their actions if they use violence against an airline passenger or member of the crew. For example, if a hijacker were to hit a hostage, they would be guilty of battery and face the consequences outlined in the Indian Penal Code, 1860.

INTERNATIONAL COMPLIANCE:

India’s commitment to international efforts against terrorism was demonstrated by the Act, which was in compliance with international conventions and treaties addressing aviation security. The Act strengthened the international community’s fight against terrorism by promoting collaboration with other nations in the investigation and prosecution of hijacking cases and upholding international standards.[7]

JURISDICTION:

Section 7 of the Act stipulates that an offender shall face the same penalties for offenses under Sections 3 and 5 that are committed outside of India as they would if they were committed there. Only in the following circumstances would Indian courts be able to take cognizance of offenses committed in violation of Sections 3 and 5:

The crime is committed within the borders of India; it is committed against or on board an Indian-registered aircraft; it is committed on board, and the hijacked aircraft lands in India while the accused is still on board;
The place of business or residence of the lessee in India, as well as an aircraft that is leased without crew, are the targets of the offense.
The victim of the offense is an Indian citizen.
The offender is a stateless individual whose primary place of residence is in India.
The alleged offender committed the offense while in India, but they were not extradited in accordance with Section 11 of the Act.

INVESTIGATION, ARREST AND BAIL:

Any officer of the national investigation agency or the central government may be granted the authority to conduct an investigation, make an arrest, and bring charges against them.

Property connected to the offense that the accused is likely to conceal or dispose of may be ordered to be seized or attached by an investigating officer. A judicial magistrate may grant detention for a maximum of 30 days in cases where an accused person is referred to them for authorization of detention due to an investigation that cannot be finished in a day. A maximum of seven days of detention may be approved by an Executive Magistrate.

IMPACT ON AVIATION SECURITY:

India’s aviation security has improved significantly, thanks in large part to the Anti-Hijacking Act of 1982. Potential hijackers were discouraged by the Act, which set strict guidelines and heavy penalties. Fear of severe legal repercussions served as a potent deterrent, deterring individuals or groups from trying hijackings. Additionally, the Act gave travelers and airlines more confidence in fostering a safer atmosphere for air travel.

ENFORCEMENT MECHANISMS:

The Act gave law enforcement organizations the authority to use force, if necessary, in order to stop hijacking attempts. The document delineated procedures for managing instances of hijacking, underscoring the significance of prompt and resolute measures to guarantee the security of the captives and the integrity of the aircraft. Security staff received training and specialized units to improve their availability and speed of response.[8]

EXTRADITION:

Extradition is provided for in Section 11 of the Act. It specifies that offenses against the Act’s Sections 3 and 5 will be considered to fall under the categories of “extraditable offenses” and “extraditable treaties.” When an aircraft registered in a nation that has ratified the Convention is presumed to be under the member country’s jurisdiction while it is in operation, the Extradition Act, 1962, would apply to offenses under this Act. Whether the aircraft is also under the authority of another nation is irrelevant.

PRESUMPTION:

For offenses under Sections 3 and 5, the court will presume the accused is guilty unless the opposite is demonstrated. If it is established that the accused was in possession of weapons, ammunition, or explosives and there is cause to believe that weapons or explosives of a similar nature were used in the commission of the offense, or if there is proof of the use of force, the threat of force, or intimidation directed towards the passengers or crew of the aircraft regarding the commission of the offense.

GOOD FAITH:

According to Section 17 of the Act, an individual is shielded from lawsuits, prosecutions, and other legal actions by actions taken in good faith or in compliance with the Anti-Hijacking Act, 2016. The Central Government is similarly shielded against any harm done or anticipated to be done while acting in good faith or in accordance with this Act’s provisions.[9]

ANTI- HIJACKING ACT, 2016:

On May 13, 2016, the President signed it, with the goal of putting the Convention for the Suppression of Unlawful Seizure of Aircraft and Related Matters into effect.
The Anti-Hijacking Act of 1982 is repealed by this act, but it does not affect any rights, privileges, obligations, actions taken in accordance with the act, legal proceedings, remedies, penalties, forfeitures, or other measures that may be applied as if the Act had remained in effect.

The 1982 Anti-Hijacking Act was most recently modified in 1994. Following the December 1999 hijacking of Indian Airlines Flight IC-814, it was thought appropriate to sentence those responsible for the hijacking to death. The 9/11 incident, in which airplanes were turned into weapons, further highlighted the need to update the current Act. The Anti-Hijacking Act of 1982 was superseded by this new act, which the government deemed outdated in light of new threats. The 2010 Beijing Protocol Supplementary to the Convention and the Hague Hijacking Convention are intended to be enforced by the new Act.

The concept of aut dedere aut judicare, which states that a state party to the Hague Convention must prosecute an aircraft hijacker if no other state requests that the hijacker be extradited for prosecution, is outlined in the Convention for the Suppression of Unlawful Seizure of Aircraft. As of September 2018, there were 27 signatories to the 2010 Protocol Supplementary, which included revisions and additions. It went into effect on January 1, 2018.

SALIENT FEATURES OF THE ACT:

The Indian Parliament passed the Anti-Hijacking Act, 2016 in order to implement the Convention for the Suppression of Unlawful Seizure of Aircraft, also known as the Hague Convention, 1970, for allied matters. Additionally, on September 10, 2010, India signed the Supplementary Protocol to the Convention, which relates to unlawful acts against aviation, and this Act gives it more weight. This Act defines a number of terms, including hostage, agency, aircraft, and military aircraft. Therefore, the definition of hijacking is as follows: anyone who unlawfully and intentionally uses force or threat of force, coercion, intimidation, or any other form of intimidation, or any technological means, to seize or exercise control of an aircraft in service commits the offence of hijacking.[10]

Additionally, the definition of hijacking now includes the attempt, credible threat, or assistance in carrying out the hijacking. As per the provisions of this Act, an aircraft is considered “in service” when it is being prepared for a specific flight by ground personnel or the crew and continues to be so for twenty-four hours after any landing. In the event of a forced landing, the flight is considered to continue until the competent authorities assume responsibility for the aircraft, its occupants, and its property. Furthermore, if someone commits the crime of hijacking, they could be punished by death or life in prison, and their personal belongings, both mobile and stationary, could be seized.

Moreover, the Act specifies the penalties for violent crimes related to the hijacking of an aircraft. Furthermore, in order to file a case under this Act, prior approval from the Central Government is required. The act’s goal is to broaden the definition of “hijacking” by including in its definition the possibility of committing a hijacking offense.

As a result, it is now illegal to intentionally and unlawfully intimidate anyone under circumstances that indicate an actual threat. Furthermore, the amended definition now includes individuals who plan or direct others to commit a crime and hold them accountable for aiding and abetting the hijacking. “If the hijacker is Indian, or if the hijacked aircraft is registered in India, or if any foreign registered aircraft lands in India with the alleged offender still on board, or when the aircraft is hijacked anywhere in the world and an Indian citizen is on board,” is another noteworthy aspect of the new law.

OLD ACT V. NEW ACT:

Because the 1982 statute only considered the hijacker’s physical presence within the aircraft, it had a limited definition of what constituted a hijacking. The attempt to seize or take control of an aircraft using any “technological” means is now included in the definition of hijacking, thanks to the new Act. This is broad in that it means that even if hijackers were physically absent from the aircraft, they would still be prosecuted for attempting to use technology that does not require their physical presence to hijack an aircraft.

The previous act had lax penalties and sanctions for the offense. When the aircraft doors are closed until every passenger has disembarked, it is regarded as being “in-service.” For attempted hijackings and hoaxes, the new Act introduces the death penalty and a life sentence. An aircraft is deemed to be “in-service” for the full 24 hours following its landing, starting from the moment ground crew or personnel begin pre-flight preparations. When an aircraft is forced to land, the flight is considered to continue until an authorized authority assumes control of the aircraft.

Even though the offense was committed outside of India, the new Act is applicable. Regardless of whether the vessel is registered in India or chartered to Indians, the offense is committed against Indians; the wrongdoer is homeless but resides in an Asian country (for example, by living with an embezzled Bangladeshi immigrant); or the wrongdoer is Indian.[11]

SHORTCOMINGS OF THE ACT:

[12]There are certain issues with the Act of 2016. Any craft, regardless of whether it is registered in an Asian country, is referred to as an “aircraft.” It does not, however, include any craft that is used in law enforcement or customs that should be enclosed.
It should be enforced that provisions to conceal “hoax calls” with appropriate penalties be implemented. Phony calls cause panic, which puts passengers in grave danger. Together, they create a nightmare for security agencies, causing them to waste time and money trying to confirm the decision’s validity.
In addition, the Act doesn’t define the terms “hostage” or “security personnel.” The Act, as stated above, only stipulates that a hijacking offense will result in the death of a prisoner or a member of the security services. There is a possibility that other people will die in the event of associated intervention, especially when armed security personnel are involved, so it is important to prescribe penalties.
Security guards and ground crew on the landing field are not protected by the Act. A potential hijacker might harm the crew members on the bottom while the other craft is submerged or being prepared for departure. In its current form, the Act only addresses violence against passengers or airline crew and specifies the penalties for acts of violence related to hijacking. It ignores equally important acts of violence against security personnel or ground workers.
The Act should have even considered granting extraterritorial standing or resistance from jurisdiction for the benefit of the crew and passengers inside the state in the event that another aircraft is hijacked. This kind of regulation is sorely needed, especially in the event of the unauthorized seizure of another vessel. It should also apply to any or all instances of unannounced landings in a foreign nation.

CASE LAW:

Birju Kishore Kumar Salla v State of Gujarat

The Honorable Court found Mr. Salla pleaded guilty in this case under the Anti-Hijacking Act, 2016 because he had left a threatening note on a Jet Airways aircraft for his own peculiar and personal reasons. He believed that by doing so, Jet Airways would be forced to close, and in addition, he expected his girlfriend to return to him in Mumbai. For these reasons, he was found liable and is currently serving a life sentence in prison along with a five-crore fine. Even though he didn’t technically intend to hijack the plane or harm anyone, leaving a threat note qualifies as an illegal act, for which he was held accountable.[13]

Neerja Bhanot Hijacking case (Pan Am Flight 73) or the IC-814 hijacking case.

At Jinnah International Airport in Karachi, a 16-hour standoff resulted in the deaths of 22 hostages and approximately 150 injuries. Pan Am flight 73, a Boeing 747, set out from Mumbai for New York on September 5, 1986, with stops planned in Frankfurt and Karachi. At approximately six in the morning, as passengers were boarding in Karachi, four heavily armed men disguised as security guards broke into the aircraft and opened fire. In order to free “friends” who were imprisoned in Cyprus, the hijackers demanded that a pilot take them there, holding the 379 passengers and crew hostage.[14] The flight attendants thwarted the hijackers’ attempts to identify other American passengers by concealing the passports of those who were still American. The hijackers pursued talks with Pakistani police and a local Pan Am representative, but they did not follow through on their deadlines. The hijackers compelled the hostages to congregate in the plane’s middle as the lights went out.

Soon after, the emergency power failed, and the plane went totally black. The hijackers then opened fire on the hostages with machine guns and grenades, believing that security personnel were attacking the aircraft. Several escape doors were forced open by some of the hostages, and flight attendants assisted the surviving passengers in leaving the aircraft. Three of the four hijackers fled as the attack came to an end when the gunmen ran out of ammunition and flight crew members returned to help the injured. The highest peacetime award for gallantry in India, the Ashoka Chakra, was given posthumously to senior flight attendant Neerja Bhanot, who was fatally wounded in the hijackers’ final assault.

Davinder Singh v Union of India

The petitioner’s plea was rejected at the Punjab and Haryana High Court during the case’s initial hearing. The petitioner then filed an appeal with India’s Supreme Court. In 1984, Davinder Singh, the petitioner, was found guilty of hijacking an Indian Airlines flight from Srinagar to Delhi, as per the Anti-Hijacking Act, 1982. He received a life sentence along with a 10,000 rupee fine. Singh contested his conviction on the grounds that the Act was invalid when the hijacking occurred. Whether the Anti-Hijacking Act of 1982 was in effect at the time of the hijacking was the primary question on the court’s agenda. The conviction was maintained by the Supreme Court, which determined that the Act was in effect at the time of the hijacking.[15]

According to the Central Government’s notification published in the Official Gazette, the Act went into effect on July 15, 1982, the court reasoned. On August 24, 1984, after the Act went into effect, the hijacking took place. As a result, the Act’s conviction of the petitioner was proper. The government specifies the date on which a law becomes operative in its official notification, and this is the rule of statutory interpretation that the court applied. This case established a precedent for interpreting a statute’s commencement date. It made it clear that, regardless of the day of enactment or assent, a law takes effect on the date indicated in the official notification.

Judges K. Ramaswamy and S. Saghir Ahmad made up the two-judge bench that delivered the verdict, and both judges agreed with it. This ruling upheld the Anti-Hijacking Act of 1982’s applicability. It supported the validity and applicability of the Act by making it clear that it was in effect at the time of the hijacking. Because this case upheld the harsh penalties under the Act, it acted as a deterrent for prospective hijackers.

Amrinder Singh v Union of India

The Punjab and Haryana High Court heard the case. Amrinder Singh, the petitioner, contested the constitutionality of the Anti-Hijacking Act, 2016 in a written suit brought under Article 226 of the Indian Constitution. Amrinder Singh, the petitioner, was charged with taking over an Indian Airlines flight in 1984 that was traveling from Srinagar to Delhi. Under the 1982 Anti-Hijacking Act, he was charged. But the trial was postponed for a number of reasons. The petitioner was charged under the amended Anti-Hijacking Act of 2016, which was passed in Congress that year. The petitioner contested the 2016 Act’s constitutionality on the grounds that it was retroactive and infringed upon his rights as guaranteed by Article 20(1) of the Constitution.

The court was asked to decide whether the petitioner’s rights under Article 20(1) of the Constitution were violated by the Anti-Hijacking Act, 2016 and whether they could be applied retroactively. The court reasoned that since the 2016 Act had no bearing on any rights or obligations that had developed under the 1982 Act, it was not retroactive. The petitioner was not subjected to a penalty greater than what could have been imposed at the time of the offense under the 1982 Act, the court determined, supporting the conclusion that the 2016 Act did not violate Article 20(1) of the Constitution. The legal principle established in this case is that a law is not retroactive just because it modifies the trial process or punishment.

Only when a law affects rights or liabilities that have already occurred is it considered retrospective. This ruling affirmed the Anti-Hijacking Act of 2016’s constitutionality and provided clarification on its implementation. It upheld the rule that a law is not retroactive just because it modifies the trial or punishment process. The way the Act is interpreted and the rights of those who are accused are affected by this case in significant ways.[16]

CONCLUSION:

In conclusion, India’s efforts to fight terrorism and protect the safety of its aviation sector rely heavily on the Anti-Hijacking Act, 1982. The Act has been instrumental in thwarting attempts at hijacking and preserving the safety and integrity of the nation’s airspace due to its strict legal provisions, international compliance, ongoing evolution, and impact on aviation security. Notwithstanding ongoing difficulties, the Act’s ongoing enforcement and modification are crucial in the face of dynamic security threats, underscoring its significance in the war against terrorism.
The 1982 Act was narrower than the 2016 Act. If severe fines, penalties, and property seizures are included, well-known people will be deterred from pulling practical jokes on the aviation industry. Hopefully, this will continue the trend of no significant hijacking cases that the world has seen recently. Even though the current provision is comprehensive, it still needs some additions. Judicial interpretations or amendments could add such elements. With the passage of this act, Indian law undoubtedly takes a stronger stance against incidents involving hijacking because it requires both men and technology to operate extremely cautiously in order to protect passengers. The Beijing Protocol of 2010 has also influenced the new act, which has gained international recognition as numerous nations have based their civil aviation laws on this protocol.[17]