The Author, Nikhilesh Koudinya, is a 2nd-year, BA.LLB student at Symbiosis Law School, Pune. He is currently interning with LatestLaws.com.
Introduction
Weapons of Mass destruction are a reality that hit the world a century ago. The justification given by the permanent Security Council members at that time was that such systems are necessary to ensure that world peace is maintained. But as countries started fighting battles both on the battlefield and economically these weapons became a huge notion for contention. Soon countries realized that there may not be a world to live in if such weapons are used because they have the ability to cause injuries beyond the imaginations of mankind.
Hence there were treaties and conventions signed for the regulation of such materials and slowly the world wanted to move to the achievement of complete nuclear disarmament. India as a country refused to sign the Nuclear Proliferation Treaty (NPT) calling it to be discriminatory. This was because the act gave developed countries the option to retain certain weapons while disarming the rest. On the other hand, developing nations were required to surrender all their nuclear weapons.
Hence India built an air-tight legislation to ensure complete safety of its weapons and ensured to conceive an act which would not put such weapons in dangerous hands or allow individuals and entities to make such weapons.
Q.1) When did the Weapons of Mass Destruction and their Delivery Systems Act come into force?
Ans.2) The act was enacted on 6th June, 2005 by the central government by notification in the official gazette.
Q.2) What is the purpose and rationale behind coming up with such an act?
Ans.2) There are various reasons for the implementing this act:
- India is a nuclear state and it is very important that to protect its national security, it must protect its nuclear arms. Hence the act helps in prohibiting illegal activities relating to weapons of mass destruction and their delivery systems. It also takes care of any incidents or situations that arise due to using such weapons or omitting their use.
- This act also ensures that India does not transfer nuclear weapons or explosive devices. It also bans India from helping other countries to develop their nuclear power or explosive devices.
- Finally, the act ensures that nuclear weapons don’t fall in the hands of non-state actors and perceives a goal for complete nuclear disarmament in the future.
Q.3) What is the meaning of “weapons of mass destruction?”
Ans.3) Weapons of mass destruction under the said act include biological, chemical and nuclear weapons. The respective definitions for these weapons has been given in the article below.
Q.4) Why is this act important for India when we have other acts which specifically address the issue of nuclear security?
Ans.4) This act is important because it covers a larger spectrum of initiatives and obligations that India as a country needs to fulfill the achieve the objective of global nuclear disarmament:
- The act is important because India is today trying to control the export/transportation of chemical and biological weapons. This act explains the process of transportation of such weapons. It also goes a step forward by identifying the stakeholders who have access to such weapons and ensures a delivery system where the weapons don’t fall into the hands of a non-state actor.
- The act also gives legal measures to control transportation and defines key terms such as “Chemical” and “Biological” weapons. This is an important aspect as it prohibits illegal activities as mentioned above and the perpetrator can be charged in court and sentenced to punishment if found guilty.
- The act does not repeal any provision and thus is only an important addition to the prevailing acts which aim nuclear disarmament in the future.
Q.5) Where and to whom all does the act apply? Does this act also cover the Exclusive economic zones?
Ans.5) The act applies to the entire sub-continent of India. It also covers exclusive economic zones (EEZ) under its ambit. EEZ is a part of coastal waters/seabed where the country has exclusive rights and is considered to be a part of the country. The EEZ extends to 12 nautical miles in case of all countries from the sea-shore.
The act is wholesome in nature because it accommodates all entities in the country which include, any person who is an Indian citizen, any company which is registered in India or has a subsidiary office in the country, any ship or aircraft which may be in India or may be transported from outside and lastly any foreigner when he is in the boundaries of India. The act also extends to cover any person who is employed by the government of India.
Q.6) What are the activities covered under this act?
Ans.6) Any activity relating to nuclear, biological or chemical weapons are covered under this act. These may include transportation, formation and even dissemination of such weapons. The activities also include the missiles which are made to transport such weapons by countries.
Q.7) Is a person only punishable in India according to the provisions of this act?
Ans.7) A person who commits an act outside India which attracts the provisions under this act will be punished the same way under this act as if he had committed the act inside the country.
Q.8) How are biological weapons defined under this act?
Ans.8) The definition of such weapons is given under section 4 of the act. This section has a two-part definition for biological weapons which says that:
Any biological agent which is used in unreasonable quantities for developing weapons, equipment or delivery systems for armed conflict will be characterized as a biological weapon. The definition has been broken down to explain how a biological weapon is formed and explains when such a formation will be called a weapon.
Q.9) How are chemical weapons defined under this act?
Ans.9) It refers to toxic materials and their munitions which are used to cause death or harm through their toxic properties. They will cause such harm due to their release in the atmosphere. The definition also covers equipment which is specifically designed for using such munitions and causing harm to the general population.
Q.10) How are nuclear weapons defined under this act?
Ans.10) Any weapon or explosive device which the central government terms as a nuclear weapon will be termed as a nuclear weapon in the said act.
Q.11) What does the phrase “Brought in Transit” mean?
Ans.11) The phrase finds its place in section 4 of the said act. If goods are brought into India by the means of land, air or water then the goods must be transported back in the same way from the country. For example, if a ship is going from United States of America to China and makes a stopover at India, the ship will fall under the jurisdiction of India and if any incident takes place during transit, the country or entity involved will be prosecuted under Indian law.
Q.12) What is the meaning of innocent passage with reference to the above definition?
Ans.12) An innocent passage is completely different from brought in transit. The reason for thus is that under brought in transit the ship, aircraft or vehicle make a stop at a country before proceeding to their final destination whereas under the definition of innocent passage the country only passes through another country without having any weapons as mentioned under this act.
For example, if a ship from India is going to China and it passes Sri Lanka without making a stop or anchoring it will be termed as an innocent passage because that is the only way to get to your destination.
Q.13) What is the meaning of a non-state actor?
Ans.13) This definition is extremely important as it explains the stakeholders who are prohibited from getting their hands on such sensitive material. A non-state actor under this act has been defined as an individual or an entity who do not act under lawful authority of any country.
Q.14) What are the powers given to the central government under this act?
Ans.14) The central government has the following powers under the said act:
- The central government for executing its functions under this cat can appoint advisory committees. These committees will work in accordance with the rules as laid down by the central government.
- The central government can also delegate powers to an individual or an entity to carry out the functions as laid down under the act.
- The government also has the power to appoint a licensing authority and an appellate authority who will work to satisfy the provisions under this act. Their working and responsibility will be decided by the central government by laying down rules and regulations.
Q.15) What are the various prohibitions that are listed under this act?
Ans.15) The act imposes several prohibitions from section 8- section 12. The prohibitions imposed are listed below:
- Section 8 of the act puts a prohibition on the individual from manufacturing, possessing, developing or transporting weapons of mass destruction or their delivery systems to somebody else. The section also prohibits the person from making or transferring missiles which may have such material.
- Section 9 of the act restricts the individual from transferring material to a non-state actor. Here the term material includes all weapons which are listen under this act. But the person is not restricted from transferring weapons if he has been given instructions from the government of India.
- Section 10 states that no material should be made and transferred to intimidate a section of society or the general population of India. It also says that the intimidation must not be initiated against the government of India or any foreign government.
- Section 11 acts a warning to an individual. No individual must transfer material to any entity or country knowing that such material will be used by the entity to make biological, chemical or nuclear weapons.
- Section 12 explains that no citizen of India will knowingly facilitate an implied or express contract which is prohibited under this act.
Q.16) what are the different penalties imposed by the act for the prohibitions listed above?
Ans.16) Under section 14 of the act, any person who fails to abide by provisions 8 and 10 of the act will be sentenced to imprisonment which will not be less than 5 years but may be extended to life. The person may also be made liable for a fine under this section.
Under section 15 a person who aids a non-state actor which is against the provisions of section 9 will be imprisoned for 5 years which may be extended to life along with a fine. But if a person who prepares to help the non-state actor and is not able to carry out the help, he will be for a maximum period of 10 years. The difference between the two clauses is that in one the person helped the non-state actor but in the other despite preparation the person couldn’t help the non-state actor.
Other than these sections if the person commits an offence other any section of this act, he will be punishable under section 17 of the act. The punishment entails 6 months of imprisonment which may extend to five years accompanied by a fine. But if a person is convicted again under the same provision for a second time, he will be punished for a 1 year which may extend to seven years in prison accompanied with a fine.
If a person forges a document or makes a false one which relates to materials mentioned under the act, he shall be punishable under section 18 of the act for a fine which won’t be less than five lakh rupees or five times the value of information contained in the document.
If a person has committed an act for which there is no punishment mentioned under the code, he shall be liable under section 19 for maximum imprisonment of one year or with fine. He may also be sentenced to both if the court certifies it.
Q.17) Can a company be held liable for committing an offence under the said act?
Ans.17) Yes, as per section 20 of the act any company which commits can act under this section can be held liable. For the purposes of understanding a company includes any body corporate, association of individuals and firm. The directors under a company are those people who make decisions on behalf of the company and are partners in the company.
Under this section every person who at the time of the commission of the offence was present in the company and was responsible for the conduct of business in the said company can be held liable and proceeded against. Although if a person can prove that the offence under the said act was done without his knowledge or he tried stopping the act then he won’t be held liable for such an offence.
Q.18) Can courts take cognizance of offences committed under the said act?
Ans.18) Courts aren’t allowed to take cognizance of cases under the said act until they are sanctioned to take action by the central government or any officer of the central government.
