ANTI HIJACKING ACT, 2016 OF INDIA

In view of the recent Hijacking attempt of Fly Dubai Airlines flight, FZ1073, the law against Hijacking attempt has become important. Our Indian Captain Smit Machchhar was brutally attacked by Omani Co-pilot, Hamam Al-Hammami. Although neither the plane was registered in India nor the attack on an Indian citizen (Smit Machchhar) was made on Indian territory, Indian Anti Hijacking Act, 2016 also applies on the Culprit.

This Act allows Indian Courts Jurisdiction if an attack is made on an Indian Citizen even outside Indian Territory:

● Anti Hijacking Act, 2016 is the prevailing act against the attempt to hijack an Air Craft. Its object is to give effect to the Hague Convention, 1970, as supplemented by the Beijing protocol, 2010 and to strengthen the law relating to Hijacking. Anti Hijacking Act, 2016 replaced the earlier Anti Hijacking Act, 1982.

● Extra Territorial Application of BNS, 2023 where Indian Criminal law applies to offences committed outside India:

(a) The aircraft is registered in India

(b) The aircraft lands in India with the offender onboard

(c) The offence is committed by or against an Indian citizen

(d) The offender is present in India and is not extradited

● Tokyo, Hague and Montreal Aviation Convention - The Tokyo Convention and the Hague Convention are two key international aviation conventions that address the legal responsibilities of aircraft commanders and the jurisdiction of Contracting States. The Tokyo Convention applies to offences against penal law and acts that jeopardize the safety of persons or property on board civilian aircraft while in-flight and engaged in international air navigation. The Montreal Convention is a crucial part of air law, working alongside these conventions to maintain safety and security in civil aviation.

● Suppression of Unlawful Act against Safety of Civil Aviation Act, 1982 - This is particularly relevant because it deals with violence against persons aboard an aircraft where aircraft safety is endangered, not merely classic Hijacking.

● ICAO and Chicago Convention, 1944 - Its primary purpose is to promote safe, orderly, and efficient international air transport while fostering cooperation and understanding among nations.

Definition of Hijacking:

A person commits hijacking if he unlawfully and intentionally seizes or exercises control over an aircraft in service by:

● Force or threat of force

● Coercion

● Intimidation

● Technological means

The definition is wide and also covers:

● Credible threat to commit hijacking

● Attempt

● Abetment

● Organising or directing others

● Participation as an accomplice

● Assisting the offender to evade investigation, prosecution or punishment

● Agreement/conspiracy and intentional contribution to a group acting with a common purpose

Aircraft "in service"

An aircraft is in service from the beginning of pre-flight preparation by ground personnel or crew until 24 hours after landing. In case of forced landing, it continues to be in service until the competent authorities take responsibility for the aircraft, persons and property onboard.

Punishment:

● If hijacking directly results in death of a hostage, security personnel or any person not involved in the offence: death penalty.

● In other cases: imprisonment for the remainder of natural life plus fine.

● Property of the offender may also be confiscated.

Connected violence:

If the hijacker commits violence against a passenger or crew member, he is also punishable for that act as if it had been committed in India.