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Analysis on Weapons of Mass Destruction (Amendment) Bill, 2022

The prevention of nuclear proliferation and large-scale manufacture remains one of the most pressing foreign security concerns that the world is now confronting. In addition to nuclear weapons, the issue of nuclear weaponry, as well as other weapons of mass destruction, has become a critical issue that the entire globe has been wrestling with for years, including India.[1]

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 (Bacterial Weapons Convention or BWC) have both been signed by India (Biological Weapons Convention or BWC).

The Indian Parliament passed the Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005, or the WMD Act, in 2005, as an exclusive law dealing with and regulating weapons of mass destruction (abbreviated as WMD). The legislation was passed in June 2005.[2]

On April 5, 2022, in the Lok Sabha, the Weapons of Mass Destruction and Their Delivery Systems (Prohibition of Unlawful Activities) Amendment Bill, 2022, was introduced. The bill modifies the 2005 Weapons of Mass Destruction and Their Delivery Systems (Prohibition of Unlawful Activities) Act.

The 2005 Act makes illegal operations (such as manufacturing, transporting, or transferring weapons of mass destruction and their delivery systems) illegal. Biological, chemical, and nuclear weapons are all examples of weapons of mass destruction.[3]
The bill prohibits anyone from funding any illegal activity involving weapons of mass destruction or their delivery systems.

The central government may freeze, seize, or attach monies, financial assets, or economic resources to prevent people from financing such actions (whether owned, held, or controlled directly or indirectly). It may also restrict individuals from making financial or related services available for the advantage of others in connection with any prohibited action.[4]

External Affairs Minister S Jaishankar said the modification will boost India's national security and global position in response to a debate on the bill. He pointed out that the UN Security Council's targeted financial sanctions and the Financial Action Task Force's recommendations have made it illegal to finance the spread of weapons of mass destruction and their delivery systems. "We're amending a 17-year-old law that, like other laws, needs to be updated...

The FATF requires a very detailed mention of financing... "The bill is intended to be an update to a weakness, something that is absent in current legislation, not a new law," Jaishankar explained.[5] During the debate in Parliament on the Bill, some members voiced worry that the new legislation could expose current businesses or people in the field to a case of mistaken identity. The Hon'ble Minister said in the House that such risks were remote because the identification of concerned individuals/entities would be based on a long list of details.

What has the Amendment added to the existing Act?
The Amendment broadens the definition to include the prohibition of sponsoring any activity related to weapons of mass destruction or their delivery systems. The central government will have the ability to freeze, seize, or attach monies, financial assets, or economic resources of suspected persons to prevent such financing (whether owned, held, or controlled directly or indirectly). It also forbids people from providing financial or other services to others who are engaging in such behaviour.

Reasons of Amendment
Periodic assessments of UNSCR 1540 are conducted to assess its effectiveness and identify enforcement deficiencies. Due to rapid breakthroughs in science, technology, and worldwide business, one such evaluation found in 2016 that the risk of proliferation to non-state actors is growing.

The Bill's declaration of goals and reasons in India repeats similar trends as justifications for the Amendment. First, as relevant international organisations such as the Financial Action Task Force have enlarged the scope of targeted financial sanctions and demanded greater controls on the financing of WMD activities, India's own legislation has been harmonised to fit with international benchmarks.

Second, new concerns have evolved as a result of technological improvements that have not been adequately addressed by existing legislation. These include advancements in the field of drones as well as unlicensed work in biological labs that could be used for terrorist purposes. As a result, the Amendment keeps up with changing threats. In fact, domestic laws and international agreements dealing with WMD security cannot afford to become obsolete. They must be adaptable and adaptable to non-state actors' shifting methods.

Meaning of Weapons of Mass Destruction
The term "weapon of mass destruction" (WMD) is thought to have been coined by the Archbishop of Canterbury, the leader of the Church of England, in 1937 to describe the aerial bombing of civilians in the Basque town of Guernica by German and Italian fascists in support of General Franco during the Spanish Civil War.

In the early 2000s, the term "weapons of mass destruction" entered the lexicon of people and countries around the world after the US under President George W Bush and the UK under Prime Minister Tony Blair justified the invasion of Iraq on the grounds that Saddam Hussein's government was hiding these weapons in the country. No WMDs have ever been discovered.[6]

A weapon of mass destruction is defined as a class of weaponry that includes nuclear, chemical, and biological weapons, according to Section 4(p) of the WMD Act. WMDs, in general, are weapons that are exceedingly deadly and have the ability to exterminate a huge portion of the world.

Nuclear, biological, and chemical weapons, commonly known as NBC weapons, are the most common kind of modern weapons of mass devastation.

Efforts to prevent the spread of WMD are codified in international treaties such as:
  • The 1968 Nuclear Non-proliferation Treaty
  • The 1972 Convention on Biological Weapons
  • The 1993 Chemical Weapons Convention

Although India has not inked the Nuclear Non-Proliferation Treaty, it has ratified the Biological and Chemical Weapons Conventions.[7]

Section 4(c) of the WMD Act defines chemical weapons as "all poisonous compounds except those identified for industrial, agricultural, research, medical and pharmaceutical reasons, other protective and military purposes, and for the objective of law enforcement." Chemical weapons also include projectiles or equipment that are designed to cause death or other harm. Tear gas, nerve gas, and other chemical weapons are some examples.

Biological weapons, as defined by Section 4(a) of the WMD Act, are the final type of weapons classified as WMD. Biological weapons include all biological or microbial agents or toxins used for purposes other than prophylactic, protective, or other peaceful purposes, as well as any devices or weapons that facilitate or use these agents or toxins in armed conflict or similar situations, regardless of their source or method of production.

Objective & Applicability of the Main Act
The Act's main goal is to ensure that illicit actions involving weapons of mass destruction, including as nuclear, chemical, and biological weapons, and their delivery systems are prohibited. It also ensures India's commitment to nuclear sovereignty and the prevention of non-state actors or terrorists obtaining such weapons. The Act establishes a legal framework for regulating exports of materials, technologies, equipment, and their delivery systems. The Act was passed to comply with a UN Security Council Resolution (UNSCR) 1540 of 2004 that imposed an international duty.

The United Nations Security Council passed Resolution 1540 in April 2004 to confront the growing possibility of non-state actors acquiring access to WMD material, equipment, or technology in order to commit terrorist acts. UNSCR 1540 put enforceable responsibilities on all UN member states under Chapter VII of the UN Charter to counter this threat to world peace and security. Nations were required to take and enforce adequate measures to prevent the spread of weapons of mass destruction, their delivery systems, and related materials to non-state actors.

UNSCR 1540 imposed three primary obligations on nation states: not providing any form of assistance to non-state actors seeking to acquire WMD, related materials, or delivery systems; adopting and enforcing laws criminalising the possession and acquisition of such items by non-state actors; and adopting and enforcing domestic controls over relevant materials to prevent proliferation. Enactment and implementation of legislation to penalise the unlawful and unauthorised manufacturing, acquisition, possession, development, and transportation of WMD became necessary to meet these responsibilities.[8]

To prevent acts of terrorism involving WMD or their delivery methods, all nation states must invest equally in a network of national and international measures. To ensure that non-state actors, such as terrorist and black-market networks, do not acquire access to such materials, such efforts are required to increase global enforcement of rules relating to the export of sensitive commodities and to ban even the financing of such operations. Harmonization of global WMD restrictions may be possible if best practises on legislation and implementation are shared.

India has reservations about passing UNSCR-mandated legislation at first. India does not believe this is the appropriate body to make such a demand. However, given the threat of WMD terrorism that India faced as a result of its difficult geographic location, the country backed the Resolution and met its requirements.

It is in India's best interests to facilitate the adoption of strictest measures at the international level. India can now insist that countries change their regulations, particularly those in its neighbourhood that have a history of proliferation and backing terrorist organisations.

The territorial breadth and scope of the Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005 (hereafter the WMD Act) are addressed in Section 3. The WMD Act covers the whole Union of India, including the country's Exclusive Economic Zones. A person who commits a crime under this Act outside of India will be prosecuted under the WMD Act as if the offence were committed within India.[9]

The following are subject to the provisions of this Act [10]:
  • Indian nationals who are either inside or outside the country's territorial borders (the one recognised by this Act).
  • Corporations, corporations, or other legal entities that are incorporated in India or have subsidiaries, associates, or branches in India.
  • Any air, water, or other mode of transportation, whether registered in India or elsewhere.
  • While in India, citizens from other countries (foreigners).
  • Persons serving in the capacity of providing services to the Government of India, whether within or outside the country's borders.

Restrictions
Exports, transfers and re-transfers, transit and transportation of technology, materials, or equipment as recognised and recognised by the Central Government are among the key activities regulated and governed by the requirements of this Act.

The Act makes it illegal to engage in the following activities, which are stated below:
  1. Illegally manufacturing, obtaining, owning, developing, or transporting any radioactive or nuclear weapon, nuclear explosive devices, biological weapons and agents, chemical weapons, or other dangerous missiles and ammunitions specifically wired and made for the purpose of causing mass and rampant destruction to living matter and human lives is prohibited under Section 10 of the WMD Act.
     
  2. It is illegal to export any equipment, technological innovation, or materials that are principally intended for use in the manufacture or production of weapons of mass destruction, such as nuclear, chemical, or biological weapons, as well as any delivery methods or explosive devices. Section 11 of the WMD Act of 2005 allows for this.
     
  3. Brokering, defined as the deliberate transaction, engagement, or negotiation of financial arrangements or agreements that are restricted by the terms of the Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005, is prohibited.

Legal Jurisdiction
Under Section 21 of the Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005, offences or violations of the Act's provisions can be tried in a court of law. In order to take cognizance of offences committed under this Act, a court of law must first get authorization from the Government of India or any other competent authority or official authorised by the Central Government.

In terms of civil court jurisdiction, Section 22 of the Act states that no action or proceeding taken by the Central Government or any other government authorised office under Section 5 and sub-sections (1) and (2) of Section 7 of this Act may be challenged in any civil court through a suit, application, appeal, or revision. At the same time, no injunction shall be given by any civil court or other authority in respect of any action taken or to be taken by the Central Government in the exercise of any power conferred on it by those provisions.

Provision of Penalty under the Act
There are numerous parts in the Act that deal with the sanctions and penalties for violating the WMD Act's prohibitions. The following are some of them:
  • Section 14 of the Act makes it illegal to aid and abet the violation of the proviso of Section 8, which prohibits the use of weapons of mass destruction, and Section 10, which prohibits the use of intimidating acts. The penalty involves a minimum of five years in prison, with the possibility of life imprisonment, as well as the possibility of a fine.
     
  • The involvement or collaboration of any non-state actor or terrorist individual or group in dealing with weapons of mass destruction is prohibited under Section 9 of the WMD Act. Section 15 of the Act makes any kind of help, assistance, or facilitation offered to any such non-state actor or terrorist(s) punishable by a minimum of five years in jail, with the possibility of life imprisonment and a fine.
     
  • Section 13 forbids the export of any technology, equipment, or material that could aid non-government sanctioned weapons of mass destruction manufacturing. The penalty for engaging in this forbidden activity is set down in Section 16 of the WMD Act, which states that any violation, abetment, or attempt to engage in any of the prohibited activities listed in sub-clause 4 of section 13 can result in a fine of three lakh rupees up to twenty lakh rupees. For a second offence, the offender faces a minimum sentence of six months in jail, which can be increased to a maximum of five years, as well as a fine.
     
  • According to the terms of the WMD Act, forgery is absolutely forbidden. Section 18 of the Act punishes individuals who use or create false documents with a punishment of at least five lakh rupees or five times the cost of the technology, equipment, materials, or services used. Whichever one imposes a higher financial penalty on the offender will be followed or enforced.
     
  • The Act also includes a unique provision for offences whose penalty or punishment is not clearly established by the Act. Section 19 of the WMD Act stipulates that anyone who commits such an offence faces a year in prison, a fine, or both, depending on the circumstances. This section eliminates any possibility of the offender escaping punishment for any of the Act's infractions.
     
  • Companies have a tendency to stumble and commit crimes that can be exceedingly harmful to a large number of people, particularly when it comes to WMDs. Companies, body corporates, firms, or any other organisation of individuals are subject to fines under Section 20 of the Act. This section holds liable those who were in control or managing the business of the relevant company at the time the crime was committed. The section does, however, have a limitation in that it does not specify any penalty or punishment for the offender. It merely states that such individuals will be prosecuted and punished as a result of their actions.


What more should India do?
India's responsible non-proliferation behaviour and actions are well known. It has a robust statutory national export control system and is dedicated to stopping the spread of weapons of mass destruction. Controls for transit and trans-shipment, retransfer, technology transfer, brokering, and end-use based controls are all included. Every time India takes extra efforts to meet new responsibilities, it must present the international community its legislative, regulatory, and enforcement frameworks.

On a national level, this Amendment will need to be implemented through adequate outreach to industry and other stakeholders to ensure that they understand their new commitments. India's WMD Act outreach efforts have included both regional and sector-specific challenges. It will need similar efforts to explain the new provisions of the law.

India must also maintain a worldwide focus on WMD security. Complacency is not an option. To avoid weak links in the global control system, even countries without WMD technology must be made aware of their position in the control framework.

Through the IAEA (International Atomic Energy Agency) or on a bilateral basis, India can assist other countries in creating national legislation, institutions, and regulatory frameworks.[11]

Conclusion:
It can be conclusively agreed that domestic supervision and regulation of weapons of mass destruction, which include biological, chemical, and nuclear weapons, as well as other related explosive and radioactive devices, is spot on and covers all aspects related to it, including exports, qualified parties who can engage with WMDs, adequate penalties and liabilities in cases of violations, and a comprehensive list of all activities that should be prohibited.[12]

At the same time, it's important to remember that there are a number of other laws in existence to deal with comparable scenarios, and the Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act of 2005 isn't a stand-alone legislation. It is always read and interpreted in conjunction with numerous other laws that govern nuclear and non-nuclear weapons in the country's legal framework.[13]

End-Notes:
  1. Dhawal Srivastava, A study of the weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005, iPleaders available at: https://blog.ipleaders.in/a-study-of-the-weapons-of-mass-destruction-and-their-delivery-systems-prohibition-of-unlawful-activities-act-2005/ (Last visited on May 5, 2022 at 07:28 AM)
  2. Ibid
  3. The Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Amendment Bill, 2022, PRS India, available at: https://prsindia.org/billtrack/the-weapons-of-mass-destruction-and-their-delivery-systems-prohibition-of-unlawful-activities-amendment-bill-2022 (Last visited on May 5, 2022 at 07:30 AM)
  4. Ibid
  5. FE Online, What is the Weapons of Mass Destruction Amendment Bill, 2022 cleared by Lok Sabha? The Financial Express, available at: https://www.financialexpress.com/india-news/what-is-the-weapons-of-mass-destruction-amendment-bill-2022-cleared-by-lok-sabha/2484904/ (Last visited on May 5, 2022 at 07:45 AM)
  6. Editorial, Explained: What are Weapons of Mass Destruction, the existing law on which India now wants to amend? The Indian Express, April 9, 2022, available at: https://indianexpress.com/article/explained/everyday-explainers/explained-weapons-of-mass-destruction-law-amendment-7856169/ (Last visited on May 5, 2022 at 07:39 AM)
  7. Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Amendment Bill, 2022, Drishti IAS, available at: https://www.drishtiias.com/daily-updates/daily-news-analysis/weapons-of-mass-destruction-and-their-delivery-systems-prohibition-of-unlawful-activities-amendment-bill-2022 (Last visited on May 5, 2022 at 08:49 AM)
  8. Manpreet Sethi, Amending the Weapons of Mass Destruction Act, The Hindu, April 12, 2022, Available at: https://www.thehindu.com/news/national/amending-the-weapons-of-mass-destruction-act/article65311030.ece (Last visited on May 5, 2022 at 07:03 PM)
  9. C Chakraborty, India's Policy towards WMD Weapons: Status and Trends, CBW Magazine, MPIDSA, available at: https://idsa.in/cbwmagazine/india-policy-towards-wmd-weapons_cchakraborty (Last visited on May 5, 2022 at 07:36 PM)
  10. Ibid
  11. Supra note 8 at Pg.4
  12. Ibid
  13. Ibid

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