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THE WEAPONS OF MASS DESTRUCTION AND THEIR DELIVERY SYSTEMS (PROHIBITION OF UNLAWFUL ACTIVITIES) ACT, 2005
An Act to prohibit unlawful activities, in relation to weapons of mass destruction and their delivery systems and for matters connected therewith or incidental thereto.
Whereas India is determined to safeguard its national security as a Nuclear Weapon State;
And Whereas India is committed not to transfer nuclear weapons or other nuclear explosive devices, or to transfer control over such weapons or explosive devices, and not in any way to assist, encourage, or induce any other country to manufacture nuclear weapons or other nuclear explosive devices;
And Whereas India is committed to prevent a non-State actor and a terrorist from acquiring weapons of mass destruction and their delivery systems;
And Whereas India is committed to the objective of global nuclear disarmament;
And Whereas India is committed to its obligations as a State Party to the Convention on the Prohibition of the Development, Production, Stockpiling and use of Chemical Weapons and on their Destruction and the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction;
And Whereas India is exercising controls over the export of chemicals, organisms, materials, equipment, and technologies in relation to weapons of mass destruction and their delivery systems under other relevant Acts;
And Whereas it is considered necessary to provide for integrated legal measures to exercise controls over the export of materials, equipment, and technologies and to prohibit unlawful activities in relation to weapons of mass destruction and their means of delivery.
Be it enacted by Parliament in the Fifty-sixth Year of the Republic of India as follows:
SECTION 01: SHORT TITLE AND COMMENCEMENT
(1) This Act may be called the Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005.
(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.
SECTION 02: ACT IN ADDITION TO OTHER LAWS
Save as otherwise expressly provided in this Act, the provisions of this Act shall be in addition to any other relevant Act for the time being in force in relation to any matter covered under this Act.
SECTION 03: EXTENT AND APPLICATION
(1) It extends to the whole of India including its Exclusive Economic Zone.
(2) Every person shall be liable to punishment under this Act for every act or omission contrary to the provisions thereof, of which he is held guilty in India.
(3) Any person who commits an offence beyond India, which is punishable under this Act, shall be dealt with according to the provisions of this Act in the same manner as if such act had been committed in India.
(4) The provisions of this Act shall also apply to—
(a) citizens of India outside India;
(b) companies or bodies corporate, registered or incorporated in India or having their associates, branches or subsidiaries, outside India;
(c) any ship, aircraft or other means of transport registered in India or outside India, wherever it may be;
(d) foreigners while in India;
(e) persons in the service of the Government of India, within and beyond India.
(5) Notwithstanding the applicability of the provisions of any other Central Act relating to any activity provided herein, the provisions of this Act shall apply to export, transfer, re-transfer, transit and trans-shipment of material, equipment or technology of any description as are identified, designated, categorised or considered necessary by the Central Government, as pertinent or relevant to India as a Nuclear Weapon State, or to the national security of India, or to the furtherance of its foreign policy or its international obligations under any bilateral, multilateral or international treaty, Covenant, Convention or arrangement relating to weapons of mass destruction or their means of delivery, to which India is a Party.
COMMENTS
This Act extends to the whole of India including its Exclusive Economic Zone. Every person shall be liable to punishment for every act or omission contrary to the provisions of the Act, of which he is held guilty in India. Any person who commits an offence beyond India, which is punishable under the Act, shall be dealt with according to the provisions of the Act in the same manner as if such act had been committed in India. The Act also applies to (i) citizens of India outside India, (ii) Companies or bodies corporate, registered or incorporated in India having their associates, branches or subsidiaries, outside India (iii) any ship, aircraft or other means of transport registered in India or outside India, wherever it may be, (iv) foreigners while in India, (v) persons in the service of the Government of India within and beyond India.
SECTION 04: DEFINITIONS
In this Act, unless the context otherwise requires,—
(a) "biological weapons" are—
(i) microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes; and
(ii) weapons, equipment or delivery systems specially designed to use such agents or toxins for hostile purposes or in armed conflict;
(b) "brought in transit" means to bring goods from any country into India by land, air, or amphibious means of transportation, where the goods are to be taken out from India on the same conveyance on which they are brought into India without any landing in India, but does not include a conveyance in innocent passage through Indian territory, Indian territorial waters or Indian airspace of a foreign conveyance carrying goods.
Explanation I.—A conveyance is a foreign conveyance if it is not registered in India.
Explanation II.—A conveyance is in "innocent passage" if it is not engaged in relevant activity and passes through or above Indian territorial waters or airspace without stopping or anchoring in India;
(c) "chemical weapons" means,—
(i) the toxic chemicals and their precursors, except where intended for—
(a) industrial, agricultural, research, medical, pharmaceutical or other peaceful purposes;
(b) protective purposes, namely those purposes directly related to protection against toxic chemicals and to protection against chemical weapons;
(c) military purposes not connected with the use of chemical weapons and not dependent on the use of the toxic properties of chemicals as a method of warfare; or
(d) law enforcement including domestic riot control purposes; as long as the types and quantities are consistent with such purposes;
(ii) the munitions and devices, specifically designed to cause death or other harm through the toxic properties of those toxic chemicals specified in sub-clause (i), which would be released as a result of the employment of such munitions and devices; and
(iii) any equipment specifically designed for use directly in connection with the employment of munitions and devices specified in sub-clause (ii), together or separately;
(d) "export" shall have the meaning assigned to this expression in the Foreign Trade (Development and Regulation) Act, 1992 (22 of 1992);
(e) "fissile material" and "radioactive material" shall have the meanings assigned to these expressions in the Atomic Energy Act, 1962 (33 of 1962;
(f) "item" means materials, equipment, and technology, of any description, notified under this Act or any other Act related to relevant activity;
(g) "non-State actor" is a person or entity not acting under the lawful authority of any country;
(h) "nuclear weapon or other nuclear explosive device" means any nuclear weapon or other nuclear explosive device as may be determined by the Central Government, whose determination in the matter shall be final;
(i) "public domain" means domain that has no restrictions upon dissemination of information within or from it; the existence of any legal rights to intellectual property in that information does not remove Such information from being in public domain; (j) "relevant activity" means,—
(i) the development, production, handling, operation, maintenance, storage, or dissemination of a nuclear, chemical or biological weapon; or
(ii) the development, production, maintenance, storage or dissemination of missiles specially designed for delivering any such weapon;
(k) "re-transfer" means transfer of any item notified under this Act from any country or entity to which it has been exported from India, to yet another country or entity,
(1) "technology" means any information (including information embodied in software) other than information in the public domain, that is capable of being used in—
(i) the development production or use of any goods or software;
(ii) the development of, or the carrying out of, an industrial or commercial activity or the provision of a service of any kind.
Explanation.—When technology is described wholly or partly by reference to the uses to which it (or the goods to which it relates) may be put, it shall include services which are provided or used, or which are capable of being used, is the development, production or use of such technology or goods;
(m) "terrorist" shall have the meaning assigned to this expression in the Unlawful Activities (Prevention) Act, 1967 (37 of 1967);
(n) "trans-shipment" means to remove goods from the conveyance on which they were brought into India and to place the goods on the same or another conveyance for the purpose of taking them out of India, where these acts are carried out on a "through bill of lading", "through airway bill" or "through manifest".
Explanation.—"through bill of lading", "through airway bill" and "through manifest" mean respectively a bill of lading, airway bill and manifest, for the consignment of goods from a place outside India to a destination which is also outside India without a consignee in India;
(o) "unlawful" means without the authority of the Central Government and the expression "unlawfully" shall be construed accordingly;
(p) "weapons of mass destruction" means any biological, chemical or nuclear weapons.
SECTION 05: POWER TO IDENTIFY, DESIGNATE, CATEGORIES OR REGULATE CERTAIN ACTIVITIES
(1) The Central Government may identify, designate, categorise or regulate, the export, transfer, re-transfer, trans-shipment, or transit of any item related to relevant activity in such manner as may be prescribed. (2) The Central Government may, by order published in the Official Gazette, designate or notify any item related to relevant activity for the purposes of this Act.
SECTION 06: POWER TO APPOINT ADVISORY COMMITTEES
For the purposes of this Act, the Central Government may appoint such advisory committees as it deems fit, and may appoint to them persons to exercise such powers and perform such duties as the Central Government may, by rules, prescribe.
SECTION 07: DELEGATION OF POWERS
(1) Subject to the provisions of this Act and any other law for the time being in force, related to relevant activity, the Central Government shall have the power to direct or assign to any authority, in such manner as it may deem appropriate, such powers as may be necessary to implement the provisions of this Act.
(2) The Central Government may appoint a Licensing Authority and an Appellate Authority, and make provisions relating to such authority and for licensing in such manner and in such form as the Central Government may, by rules, prescribe.
(3) Without prejudice to the generality of the provisions contained in this Act, the authorities and mechanisms provided under other relevant Acts shall continue to deal with matters covered under those Acts:
Provided that in case of any doubt as to whether a matter falls within the scope of such relevant Acts or under this Act, the decision of the Central Government thereon shall be final.
SECTION 08: PROHIBITION RELATING TO WEAPONS OF MASS DESTRUCTION
(1) No person shall unlawfully manufacture, acquire, possess, develop or transport a nuclear weapon or other nuclear explosive device and their means of delivery.
(2) No person shall unlawfully transfer, directly or indirectly, to any one a nuclear weapon or other nuclear explosive device, or transfer control over such a weapon, knowing it to be a nuclear weapon or other nuclear explosive device.
(3) No person shall unlawfully manufacture, acquire, possess develop or transport a biological or chemical weapon or their means of delivery.
(4) No person shall unlawfully transfer, directly or indirectly, to any one biological or chemical weapons.
(5) No person shall unlawfully transfer, directly or indirectly, to any one missiles specially designed for the delivery of weapons of mass destruction.
COMMENTS
No person is allowed to unlawfully (i) manufacture, acquire, possess, develop or transport a nuclear weapons or other nuclear explosive device and their means of delivery; (ii) transfer, directly or indirectly, to any one a nuclear weapon or other nuclear explosive device, or transfer control over such a weapon, knowing it to be a nuclear weapon or other nuclear explosive device; (iii) manufacture, acquire, possess, develop or transport a biological or chemical weapon or their means of delivery; (iv) transfer, directly or indirectly, to any one biological or chemical weapons; (v) transfer, directly or indirectly, to any one missiles specially designed for the delivery of weapons of mass destruction.
SECTION 09: PROHIBITION RELATING TO NON-STATE ACTOR OR TERRORIST
No person shall, directly or indirectly, transfer to a non-State actor or terrorist, any material, equipment and technology notified under this Act or any other Act related to relevant activity:
Provided that such transfer made to a non-State actor shall not include a transfer made as such to any person acting under lawful authority in India.
COMMENTS
No person is allowed, directly or indirectly, to transfer to a non-State actor or terrorist, any material, equipment and technology.
SECTION 10: PROHIBITION AS REGARDS INTIMIDATING ACTS
No person shall transfer, acquire, possess, or transport fissile or radioactive material, which is intended to be used to cause, or in a threat to cause, death or serious injury or damage to property for the purpose of intimidating people or a section of the people in India or in any foreign country, or compelling the Government of India or the Government of a foreign country, or an international organisation or any other person to do so or abstain from doing any act.
SECTION 11: PROHIBITION ON EXPORT]
No person shall export any material, equipment, or technology knowing that such material, equipment, or technology is intended to be used in the design or manufacture of a biological weapon, chemical weapon, nuclear weapon or other nuclear explosive device, or in their missile delivery systems.
SECTION 12: PROHIBITION ON BROKERING
No person who is a resident in India shall, for a consideration under the terms of an actual or implied contract, knowingly facilitate the execution of any transaction which is prohibited or regulated under this Act:
Provided that a mere carriage, without knowledge, of persons, goods or technology, or provision of services, including by a public or private carrier of goods, courier, telecommunication, postal service provider, or financial service provider, shall not be an offence for the purposes of this section.
SECTION 13: REGULATION OF EXPORT, TRANSFER, RE-TRANSFER, TRANSIT AND TRANS-SHIPMENT.
(1) No item notified under this Act shall be exported, transferred, re-transferred, brought in transit or trans-shipped except in accordance with the provisions of this Act or any other relevant Act.
(2) Any transfer of technology of an item, whose export is prohibited under this Act or any other relevant Act relating to relevant activity shall be prohibited.
(3) When any technology is notified under this Act or any other relevant Act, as being subject to transfer controls, the transfer of such technology shall be restricted to the extent notified thereunder.
Explanation.—The transfer of technology may take place through either or both of the following modes of transfer, namely:—
(a) by a person or from a place within India to a person or place outside India;
(b) by a person or from a place outside India to a person, or a place, which is also outside India (but only where the transfer is by, or within the control of person, who is a citizen of India, or any person who is a resident in India. (4) The Central Government may notify any item as being subject to the provisions of this Act, whether or not it is covered under any other relevant Act, and when such item is exhibited, sold, supplied or transfe
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