The Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005

What it does

The Act prohibits unlawful activities in relation to weapons of mass destruction, which means chemical, biological and nuclear weapons, and their delivery systems. It makes it an offence to manufacture, transport, transfer or deal in such weapons or the means of delivering them, and it extends to the material, equipment and technology that can be used to develop them.

It is also the legal basis for controls on exports. The Act regulates the export, transfer, re-transfer, transit, trans-shipment and brokering of listed items, so that goods, materials and technology that can contribute to such weapons do not leave India or pass through it without authorisation. The Government publishes the lists of items and technologies that are controlled, and the Directorate General of Foreign Trade runs the licensing system under which an exporter applies for authorisation.

A catch-all provision applies to unlisted items. An authorisation is required for an item that is not on a list, if the exporter has been told, or has reason to believe, that it risks diversion to weapons of mass destruction, missiles or military use. The exporter therefore has to know the end use and the end user and cannot rely only on whether the item appears on a list.

Who it binds

Exporters, manufacturers, traders, carriers, brokers and persons who transfer technology, whether in goods or in data. The Act applies to persons in India, and it also applies to Indian citizens and Indian companies outside India, so that an Indian entity cannot avoid it by acting through a foreign subsidiary in the cases the Act describes.

What has changed, and when

The Act was amended in 2022 to deal with the financing of activities relating to weapons of mass destruction, and the amendment added to the Government's powers to freeze and prevent. The Act's penalties are severe and include long terms of imprisonment, so the date of the act and the version of the Act then in force are both relevant to any proceeding.

What turns on it in practice

The site's note on India's export control list records that it now names chip manufacturing tools, and that shipping or re-exporting them needs a licence. The note says the Act applies to exports, transfers, re-transfers, transit, trans-shipment and brokering, which is the reason a semiconductor equipment supplier, a distributor and a freight forwarder are all within it. A re-export from a third country is within the Act where the goods are controlled, and the licence conditions follow the goods.

An exporter has to classify the goods against the control list before the shipment, and a wrong classification is a serious contravention and not a technical error. A decision on a licence is taken by an inter-ministerial group, which weighs the end user and the end use, so the application needs to be complete and the end-use documents in order.

For a manufacturer and its customers, the Act appears in supply contracts as a condition: the supplier's obligation to deliver is subject to the grant of a licence, and the buyer undertakes not to divert the goods. The firm's work for businesses that export or import controlled technology begins with that classification and with the contract terms that follow from it.