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.
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.
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.
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
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. 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
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
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
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.
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.
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
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.
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
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.
The following are subject to the provisions of this Act :
- 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
- 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.
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
The Act makes it illegal to engage in the following activities, which are
- 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.
- 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.
- 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.
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
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:
What more should India do?
- 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
- 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.
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
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.
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.
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.
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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
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- Editorial, Explained: What are Weapons of Mass Destruction, the existing
law on which India now wants to amend? The Indian Express, April 9, 2022,
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- Manpreet Sethi, Amending the Weapons of Mass Destruction Act, The Hindu,
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- Supra note 8 at Pg.4