Indian Anti-Hijacking Law: An analysis

Having heard of 9/11 for just six years now, it seems quiet surprising that the law against hijacking of aircrafts has been in vogue for almost four decades now. Signed in 1970, the 'Convention for the Suppression of Unlawful Seizure of Aircraft' [click here for the full text of the Convention] was neither the first nor the last international treaty reflecting the concern of the States against the acts of aircraft hijacking and its relation to terrorism. But than reference to it is relevant as far as Indian Anti-Hijacking legislation is concerned.

The first international convention in this line was the Tokyo 'Convention on Offences and Certain Other Acts Committed on Board Aircraft' which was signed in 1963 but came into force only in 1969. This Tokyo Convention obliged all the signatories to take all appropriate measures required in order to restore control of an hijacked aircraft to the Captain of the ship or the person in-charge and various other measures in relation to the safety of the crew and the passengers. The 1970 Convention, signed in Hague and hence 'the Hague Convention', was a measure to strengthen up this 1963 Convention in the sense that it defined what constituted an "unlawful seizure of aircraft" and obliged the signatories to engraft this offence in their domestic laws as one punishable with various penalties. This Hague Convention was further built upon by the Montreal 'Convention for the Suppression of Unlawful Acts against Safety of Civil Aviation (Sabotage)', signed in 1971 and provided for situations such as attack against a person on-board a civilian aircraft in flight or an attack which would endanger the aircraft.

As for India, as I mentioned, the 1970 Hague Convention is relevant for it formed the backdrop for the passing of the Anti-Hijacking Act enacted in 1982. Nonetheless, India being a dualist State, only the provisions of the Anti-Hijacking Act are applicable in India and the Convention per se is not of relevant except as it may be referred by courts for interpretation of Act if required. This Act of 1982 [click here for the full text] came under intense criticism when IC-814, an Indian Airlines plane, was kidnapped and taken to Kandhar and it was only upon the release of a few terrorists, as demanded by the kidnappers, that the hostages could be released. Nonetheless a newly wed Rupin Katyal was killed on-board for refusing to co-operate with the kidnappers. [click here for wiki version of it]

This Anti-Hijacking Act defines the act of hijacking is based upon a single line definition of hijacking, which has been defined as seizing or exercising control of an aircraft, unlawfully, by force or threat of force or by any other way of intimidation on board an aircraft in flight. The term aircraft in flight has also been defined as starting from the moment external doors of the aircraft are closed following by embarkation till the moment they are opened again for disembarkation. Here it to be noted that the Act covers any aircraft which is not a military aircraft or one used by customs or police and the nation in which the aircraft is registered is not relevant.

The punishment for hijacking is "imprisonment for life" along with a fine and there is no power with the judge to reduce the sentence below that and this raises question of constitutionality of this provision for Section 301 of the Indian Penal Code, which did not leave any power with the judge as to the quantum of punishment was declared as unconstitutional by the Supreme Court on grounds that it interfered with judicial review, a facet of basic structure doctrine. As regards the commission of violence in connection with hijacking, the perpetrator shall be liable to the same punishment which is imposable for a similar offence if committed in India.

Then the Act also prescribes that hijacking of aircrafts shall be considered as a part and parcel of the various grounds under the extradition treaties signed by the Government of India with other countries. It also makes way to provide for extensive cooperation with and in relation to the Contracting Parties (to the Hague Convention).

This is the sum and substance of this eleven section Act. But the reality does not stop at that for this law is substantiated by the external and defense policy of India, as revamped by the former National Security Advisor, J.N. Dixit. Nonetheless, nothing has been done on the legal front as the 1982 Act continues whereas there have been a number of changes all across the world, brought in the legal systems to deal with the menace of terrorism, of which aircraft hijacking is a distinct part.

In retrospect, however, it looks that the system does work with this older law for the IC-814 hijackers have been finally brought to book and punished under this 1982 Act itself, as this NDTV news-item reports. But as there is always a room for improvement, so does the argument of reforming this outdated law find strength in the wake of the recent advances with the terrorist activities have made.