This article is written by Dhawal Srivastava, a student currently pursuing his B.A. LL.B (Hons.) from the Rajiv Gandhi National University of Law. In this article, the author has comprehensively discussed the features of the Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005 (also known as the WMD Act). This article is edited by Ilashri Gaur, a student pursuing B.A LLB (Hons.) from Teerthanker Mahaveer University.

Introduction

The prevention of proliferation and large-scale manufacturing of nuclear weapons continue to constitute one of the pivotal international security challenges that the entire world is facing right now. Supplementarily to the nuclear weapons came up the issues of chemical and biological weapons, the other weapons of mass destruction that have been a crucial issue with which the entire world has been grappling with since years, India being no exception. India has been a committed member of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (Chemical Weapons Convention or CWC) and the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction (Biological Weapons Convention or BWC). In the year 2005, an exclusive law dealing with and regulating the weapons of mass destruction (abbreviated as WMD) was legislated by the Indian Parliament, entitled the Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005 or the WMD Act. The law was enacted in June 2005.

The objective of the Act

The primary objective of the Act is to ensure the prohibition of illegal activities pertaining to weapons of mass destruction including nuclear, chemical and biological weapons and their delivery system. It is also to ensure India’s commitment to nuclear sovereignty and protection of such weapons from getting acquired by non-state actors or terrorists. The Act provides a legal sanction and backing to govern matters relating to exports of materials, technologies, equipment and their delivery systems.

Applicability of the Act

Section 3 of the Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005 (hereinafter the WMD Act) deals with the territorial extent and scope of the Act. The WMD Act is applicable throughout the Union of India, which also incorporates the Exclusive Economic Zones of the country. A person committing a crime under this Act beyond the borders of India shall also be dealt with according to the provisions of the WMD Act and as if the illegality had been committed within the country. 

The provisions of this Act shall be applicable to the following: 

• Persons who are citizens of India and are within or outside the country’s territorial borders (the one recognized by this Act).
• Corporations, companies or body corporates who are registered in India or have their subsidiaries, associates or branches outside India.
• Any air or water or other means of transport whether registered within or outside India.
• The citizens of other countries (foreigners) while they are in India.
• Persons who are serving in the capacity of dispensing services to the Government of India, whether within or outside the territory of the country.

Weapons of mass destruction (WMD)

Section 4(p) of the WMD Act defines a weapon of mass destruction as a comprehensive term given to a class of weapons incorporating nuclear, chemical and biological weapons. In general terms, WMD can be defined as those weapons which are extremely dangerous and have a potential of exterminating a large chunk of the population.

• As per Section 4(h) of the WMD Act, nuclear weapons or devices are those which are categorized as having nuclear capabilities and recognized by the Government of India. However, in general, these machinery and weapons use the process of nuclear fission in order to facilitate an explosion.
• Chemical weapons are defined negatively under Section 4(c) of the WMD Act and stipulate that all the toxic substances except those listed for the purpose of industrial, agricultural, research, medical and pharmaceutical, other protective and military purposes and for the objective of law enforcement. Chemical weapons also include such munitions or devices that have been manufactured with the intent of causing death or other harms. Examples of chemical weapons include tear gases, nerve gases etc.
• The final category of weapons counted as WMD are biological weapons, defined under Section 4(a) of the WMD Act. All those biological or microbial agents or toxins, irrespective of their source or method of production, for purposes other than prophylactic, protective or other peaceful purposes and such devices or weapons that facilitate or use these agents or toxins in situations of armed conflict or similar situations are categorized under biological weapons. 

Prohibitions associated with WMD

The primary activities that are regulated and governed by the provisions of this Act include exports, transfers and re-transfers, transit and transportation of technology, materials or equipment as recognized and acknowledged by the Central Government. Certain activities are counted as illegal under the Act and have been listed below:

• It is barred under Section 10 the WMD Act to illegally manufacture, obtain, own, develop or transport any radioactive or nuclear weapon, nuclear explosive devices, biological weapons and agents, chemical weapons and other dangerous missiles and ammunitions specifically wired and made for the aim of causing mass and rampant destruction to living matter and human lives.
• It is prohibited to export any such equipment, technological innovation or materials that are primarily intended to be put into use for the manufacturing or producing weapons of mass destruction such as nuclear, chemical or biological weapons or any such delivery systems or explosive devices. This is provided under Section 11 of the WMD Act, 2005.
• Brokering, that is, the deliberate transaction or engagement of or negotiation by persons in any such financial deals or agreements that are restricted under the provisions of the Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005 is not allowed as per Section 12 of the WMD Act.

Penalties for offences under the Act

There are many sections in the Act that deal with punishments and penalties for committing offences or illegalities under the provisions of the WMD Act. These have been listed below:

• The violation of abetment to violate the proviso of Section 8, that is, prohibition relating to weapons of mass destruction, and Section 10, that is, prohibition with regards to intimidating acts is a punishable offence under Section 14 of the Act. The penalty includes imprisonment for not less than five years but extendable to imprisonment for life along with the supplementary liability of getting fined.
• Section 9 of the WMD Act provides for the prohibition of the involvement or engagement of any non-state actor or terrorist individual or groups for dealing with weapons of mass destruction. Section 15 of the Act provides for penalising any sort of aid, assistance or facilitation provided to any such non-state actor or terrorist(s), provisioning for the imprisonment of a minimum of five years which can get extended to imprisonment for life along with an added liability of getting fined.
• As already mentioned previously, Section 13 prohibits the export of any such technology, equipment or material that can facilitate non-government sanctioned manufacturing of weapons of mass destruction. The penalty for indulging in this prohibitory activity is stipulated under Section 16 of the WMD Act, which mentions that violation, abetment or attempt to perform any of the prohibited activity mentioned under sub-clause 4 of section 13 can lead to the imposition of a minimum fine of three lakh rupees and a maximum fine of twenty lakh rupees. For a second offence, this section provides for the imprisonment of the offender for a minimum period of six months which can get extended to a maximum period of five years, coupled with a fine to increase the penalty.
• Forgery is strictly prohibited as per the provisions of the WMD Act. Section 18 of the Act provides for the penalisation of those using or making forged documents with a fine that shall be a minimum of five lakh rupees or five times the cost incurred in the technology, equipment, materials, or services. Whichever provides for a greater financial liability on the offender shall be followed or applied.
• There is also a special provision in the Act for those offences whose penalty or punishment has not been explicitly specified by the Act. Section 19 of the WMD Act provides for the imprisonment of a person having committed any such offence for a period of one year, or a fine, or both as may be deemed necessary as per the case. This provision steers clear any such prospect of the offender being left scot-free for any of his violations under the Act.
• Companies tend to falter and commit offences which can get extremely detrimental to a lot of people, specifically in matters concerning weapons of mass destruction. Section 20 of the Act provides for penalties for the offences committed by companies, body corporates, firms or some other association of individuals. This provision holds such persons liable, who at the time of the commission of the crime were holding any charge or responsibility or managing the affairs of the responsible company. However, there is a limitation affixed with the section; it fails to stipulate any penalty or specific punishment for the offender. It simply states that such persons shall be proceeded against and punished accordingly.

Legal jurisdiction provided by the Act

The offences or violations of the provisions of the Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005 can be tried in courts of law under Section 21 of the Act. A court of law is required to take prior permission from the Government of India or any such competent authority or officer appointed by the Central Government in order to take cognizance of offences committed under this Act.

As far as the jurisdiction of civil courts is concerned, under Section 22 of the Act, no action or proceedings that have been taken under Section 5 and sub-sections (1) and (2) of Section 7 of this Act by the Central Government or any other government authorized office shall be questioned in any civil court by means of any suit or application, appeal or revision. At the same time, no injunction shall be granted by any civil court or other authority in respect of any action taken or to be taken in pursuance of any power conferred under those provisions to the Central Government.

Conclusion

It can be conclusively agreed that the domestic supervision and regulation of the weapons of mass destruction, that incorporate biological, chemical and nuclear weapons and other related explosive and radioactive devices is spot on and covers all the aspects associated with it, whether it be related to exports, qualified parties who can engage with WMDs, the adequate penalties and liabilities in cases of violations and listing down of all those activities that should be counted as illegal and which can be detrimental for all the stakeholders and nation at large. At the same time, it should not be forgotten that there are several other laws that are in place for dealing with similar situations, and the Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005 does not act in isolation. It is always read and understood in consonance with several other laws that are existing within the legal framework governing nuclear or non-nuclear weapons in the country. 

References

1. National Implementation of IHL, Weapons of Mass Destruction and their Delivery Systems Act, 2005, International Committee of Red Cross (ICRC). Available at: https://ihl-databases.icrc.org/ihl-nat/0/9E944C24C1923CE7C12576B20052AE25
2. India’s Policy towards WMD Weapons: Status and Trends by Chandreyee Chakraborty, IDSA. Available at: https://idsa.in/cbwmagazine/india-policy-towards-wmd-weapons_cchakraborty
3. Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005. Available at: https://www.indiacode.nic.in/handle/123456789/2017?view_type=browse&sam_handle=123456789/1362#:~:text=India%20Code%3A%20Weapons%20of%20Mass,of%20Unlawful%20Activities)%20Act%2C%202005&text=Long%20Title%3A,connected%20therewith%20or%20incidental%20thereto.

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