On Tuesday, a special court in Ahmedabad sentenced a man to life and fined him Rs 5 crore for creating a hijack scare aboard a Jet Airways Mumbai-Delhi flight and forcing it to land in Ahmedabad in October 2017. Birju Kishor Salla had left a printed note claiming there were 12 hijackers aboard. Arrested by the National Investigation Agency, Salla was not armed and his intention was merely to ensure that his girlfriend, a Jet employee in Delhi, moved to Mumbai after this scare.
Yet it invited a life sentence, because of the provisions of the recently passed Anti Hijacking Act, 2016. This is the first conviction under the Act.
Why the new Act
It was brought in to replace the Anti Hijacking Act, 1982, which the government considered obsolete in the face of emerging threats. The new Act aims to enforce the Hague Hijacking Convention and the 2010 Beijing Protocol Supplementary to the Convention.
The Hague Convention (Convention for the Suppression of Unlawful Seizure of Aircraft) sets out the principle of aut dedere aut judicare — a state that is party to the Convention must prosecute an aircraft hijacker if no other state requests his or her extradition for prosecution. The 2010 Protocol Supplementary, which made amendments and additions, came into effect on January 1, 2018, and had 27 signatories as of September 2018.
Threat counts as hijack
The Act aims to punish not only an actual act of hijacking, but even a false threat that may appear genuine. It practically means that a hoax call that forces an aircraft to land at a place different from the place intended would be treated as hijacking and attract similar punishment.
The Act takes into account that armed possession of an aircraft may not be necessary for hijacking and that it may be hijacked remotely through a technological threat.
Under section 3(1): “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”. It adds that “a person shall also be deemed to have committed the offence of hijacking” if such a person “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”.
Hijacking attempts, directing others to commit hijacking, being an accomplice and assisting another person to evade investigation are punishable as hijacking. So is preparation for hijacking. Whether or not actual hijacking has even been attempted, if a person has agreed with one or more persons to commit such an offence and any act in furtherance of the intention has taken place, it shall be deemed hijacking.
If hijacking leads to death of a passenger or a crew member, it is punishable with death. If not, the hijacking is punishable with life imprisonment.
The Act also provides for fine and confiscation of movable and immovable assets. The hijacker would also be charged with any other offence that takes place during the hijacking.
The Act provides for detention in custody for up to 30 days, and a bail application will not be entertained unless the public prosecutor is given a chance to oppose it. If opposed, the court would have to be reasonably satisfied that no offence of hijacking was committed.
Old Act, new Act
The key new introductions are the death penalty, life sentence for hoax calls, and a wider definition for aircraft “in service”. Under the old Act, an aircraft was considered “in service” between the time the doors shut and the time every passenger had disembarked. Under the new Act, “an aircraft shall be considered to be ‘in service’ from the beginning of the pre-flight preparation of the aircraft by ground personnel or by the crew for a specific flight until twenty-four hours after any landing”. In case of forced landing, “the flight shall be deemed to continue until the competent authorities take over the responsibility for the aircraft”.
The new Act applies even if the offence is committed outside India but the aircraft is registered in India or leased to Indians, or the offender is Indian, or the offender is stateless but lives in India (such as an illegal Bangladeshi migrant), or the offence is committed against Indians.