Introduction
The space sector is one of the fastest-growing industries in the world. Until now, the Indian Space Research Organisation (ISRO) was the only entity able to access this industry in India. The Government has now proposed a restructuring of various sectors under the ‘Aatmanirbhar Bharat’ policy. One notable announcement has been the reformation of the Indian space industry. India’s private sector will be able to participate in India’s space journey through a new agency known as IN-SPACe. However, every reform needs the panacea of proper legislation. This article focuses on the private sector and legal developments to date in the space industry of India.
Potential of Space and Role of the Private Sector
The investment opportunities for a more accessible and less expensive reach into outer space are significant. It has been touted as a $350 billion industry and by the year 2040, it could be worth as much as $1 trillion. With the entry of many players, especially from the United States (US), the space industry has become a highly competitive venture. The cost of launching satellites has gone down. There is intense competition in developing new technologies. For example, Space Exploration Technologies Corp. (SpaceX), an American company, is creating a satellite constellation christened ‘StarLink’ to provide cheap internet connections throughout the globe. The company also provides cost-competitive launch services using its reusable Falcon-9 rocket. It is also the first private company that has transported astronauts to the International Space Station. New ventures are also springing up for space tourism, space travel, nano-satellites and so on.
India’s Space Sector
The Indian Space Research Organisation (ISRO) is the Indian space agency responsible for launching spacecraft and for space research. The public agency was formed in 1969 and remains India’s only major player in the sector, mainly because it is the only entity with permission to launch spacecraft. It launched its first satellite named Aryabhata on 19 April 1975 and since then has developed its own fleet of launch vehicles. In more recent achievements, ISRO has placed an orbiter around Mars and assisted in confirming the presence of water on the moon. In 2019, the agency tried to land a rover on the moon but the mission partially failed when the lander was unable to achieve a “soft landing” and crashed. At present, the agency is planning a manned mission (Gaganyaan) to the moon in December 2021. ISRO has also placed hundreds of satellites in space. These include both foreign and indigenous satellites- many of the latter are operated by ISRO.
Commercially, a total of 328 foreign satellites from 33 countries have been successfully launched onboard the Polar Satellite Launch Vehicle (PSLV). Revenue earned through these launches is $25 million and €189 million. These launches were done through contracts that were signed with the commercial wing of ISRO known as Antrix Corporation Ltd. Antrix markets the products of the Indian space programme to foreign countries. In 2019, the Government of India established the NewSpace India Ltd. (NSIL) whose purposes are almost identical to Antrix.
The American company SpaceX already provides cheaper launch services compared to ISRO. Thus, to remain competitive, ISRO has to invest in Research & Development (R&D) for new launch systems and space technologies. However, the broader vision of public sector agencies does not necessarily aim at making a profit, but rather, aiding in the development of the nation. This issue can be cured with the entry of the private sector which would allow innovation and research to increase manifold. This has been observed in the US where the country’s space technology has continued to evolve swiftly due to the entry of private companies. The burden on American taxpayer has also reduced due to the lessening of the American space agency National Aeronautics and Space Administration’s (NASA) space launches.
The Advent of IN-SPACe and Entry of the Private Sector
On 24 June 2020, the Government of India created a new organization known as IN-SPACe (Indian National Space Promotion and Authorisation Centre). IN-SPACe is a “single window nodal agency” established to boost the commercialization of Indian space activities. A supplement to the ISRO, the agency is to promote the entry of the Non-Governmental Private Entities (NGPEs) in the Indian space sector. The agency will felicitate a faster induction of the private players in the sector through encouraging policies in a friendly regulatory environment and by sharing the already existing necessary facilities. This agency will permit and overlook activities of NGPEs like the space activities and space-based services (per the definition of space activities), sharing of infrastructure and facilities of ISRO, the establishment of temporary facilities within premises under ISRO’s control, the establishment of new facilities and infrastructure by NGPEs for space activities, initiation of launch campaign and consequentially the launch based on readiness of launch vehicle and spacecraft systems, ground and user segment, the building, operation and control of spacecraft and associated infrastructure for registration as Indian Satellite by NGPEs, usage of spacecraft data and space-based services and infrastructure.
All these abovementioned activities will be pursuant to safety norms and other statutory guidelines. The roles and responsibilities of this agency include drawing up an integrated launch manifest per the priorities, requirement and readiness level of the ISRO, NGPEs, and NSIL; it also has to work out a suitable mechanism to encourage NGPEs’ participation in the space activities (promotion and hand-holding, sharing of technology and expertise); for the said promotion, the agency has also to work out a mechanism to offer various facilities free of cost or at reasonable cost basis to the NGPEs. The facilities already existing in the ISRO centres might be used by the NGPEs if permitted by the IN-SPACe.
The entry of the private sector will give a huge impetus to India’s space sector and “is expected to result in development of cutting edge technologies, new applications & services.” It will also discourage the brain-drain of Indian scientists and engineers who have been leaving the country to contribute to the field of space. Twenty-six companies and startups have already approached ISRO for technical guidance and facility sharing for space activity.
Current Space Law in India
Considering the vast developments in the space sector and the inception of the role of the private sector, it would come as a surprise to note that India still lacks a proper space legislation. India does have a few regulations which deal with space applications. These are the Satellite Communication Policy, 2000 (SATCOM) and the Remote Sensing Data Policy, 2011 (RSDP, 2011). SATCOM broadly made the wireless spectrum of Indian satellites (such as INSAT) available to a large segment of the economy and population. The policy did not specify how it would be implemented and thus, the Department of Space (DoS) introduced the norms, guidelines, and procedures for the same. The RSDP, 2011 regulates remote sensing in India.
According to the policy, the National Remote Sensing Centre (NRSC) has been vested with the authority to acquire and disseminate all satellite remote sensing data in India from both Indian and foreign satellites for development purposes. Further, the government reserves the right to impose control over imaging tasks and distribution of data from Indian remote sensing satellite, when it is believed that national security and/or international obligations and/or foreign policies of the government so require. These regulations are purported to be replaced soon. In October 2020 ISRO came out with the Draft Space Based Communication Policy of India – 2020 (Spacecom Policy – 2020); in November, Draft Space Based Remote Sensing Policy of India – 2020 (SpaceRS Policy – 2020) and Draft Norms, Guidelines and Procedures for Implementation of Space RS Policy – 2020 (SpaceRS NGP – 2020).
The regulations hardly cover the umbrella of space law. It can be argued that comprehensive legislation was never necessary as the Government directly managed the space sector. However, with the inception of IN-SPACe, the private sector will have access to this industry, thus, invoking the need for comprehensive legislation. This is not unprecedented— to sustain privatization, many nations such as Belgium, France, Japan, the Netherlands, the US etc. have already enacted national space legislation.
In the absence of any domestic law, International Law applies. Article 51 of the Constitution of India obliges the State to respect international law and its treaty obligations. Several space law treaties, resolutions and other documents exist to which India is a party. For instance, the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 1967 under Article VI makes countries responsible for all activities in outer space, regardless of whether they were carried out by their space agency or by a private player. In other words, all activities in outer space are national activities. Any action of a private entity in space is attributed to the Government of the State where it is registered. Thus, the Government of India would be liable for a mishap that occurs due to the act of any private player.
The Space Activities Bill
It is pertinent for the legislature to draft laws to regulate this area. Stringent rules will need to be put to decipher grey areas. The ideal legislation has to be in consonance with India’s international obligations, and ideally also include non-binding guidelines. Further, the legislation will also need to cover the aspect of restricting the use and dissemination of the intellectual property of ISRO to private Indian ventures.
To remedy the situation, the Government of India drafted the Space Activities Bill in 2017. The bill was posted on ISRO’s website on 21 November 2017 and one month’s time was given to the stakeholders to send comments on the bill. By 12 December 2018, the Government was working on incorporating the suggestions of various stakeholders. In a press release dated 26 June 2019, the Department of Space informed the Lok Sabha that the bill is under pre-legislative consultations. On 16 May 2020, the Government of India started the Aatmanirbhar Bharat campaign. By 24 June 2020, the Union Cabinet had cleared the reforms for the space sector “aimed at boosting private sector participation in the entire range of space activities.” On 5 July 2020 ISRO Chairman K Sivan reported that two documents, a space policy and the Space Activities Bill, were in the final stages of drafting. By 20 August 2020, the Bill had been sent to the Prime Minister’s Office. However, until now the Bill has not been approved by the Cabinet of India. Thus, it is also not present in the latest 2021 Budget Session proceedings of the Parliament of India.
The new Bill is not available in the public domain. So, a scrutiny of the 2017 Bill would have to suffice. The Bill was based on the Model Law on National Space Legislation drafted by the International Law Association (ILA) for the Committee on the Peaceful Uses of Outer Space (COPUOS) and other laws of countries. In its explanatory note, the Bill notes that national space legislation is necessary to “support the overall growth of space activities in India.” It is also highlighted that private organizations will be regulated in compliance with India’s international treaty obligations. Most of the provisions in the draft law are extensions of the Model Law and are in compliance with it. However, some of the sections of the law are controversial. For instance, the indemnity provision under Section 12 is a welcome step, but its requirement should also be reflected when the license is being granted to an entity to engage in space activities. In other words, when a license is being granted to a private organization, it should have enough financial resources/insurance backing to indemnify the Government of India in case of any mishap. Further, Section 25 refers to intellectual property rights (IPR) and mandates that all IPR in space shall be protected “under any law(..)with the primary objective of safeguarding the national interest.” It would make sense that the Indian IPR regime should apply to such bodies. Further, how would national interests be safeguarded? These terms are ambiguous and should be definite. Other problems include Section 26 which gives complete immunity to the Government of India for all acts done in good faith “in pursuance of any space activity under this Act.” This is a vague provision that removes any liability of the government. The Bill also does not categorically cover space debris. It does impose the responsibility to keep the space environment clean, but again, is ambiguous. It is also suggested that an annexure can be added to the Bill with a draft contract between the space service provider and their client. This would help save small startups from spending hefty sums of money on legal fees for drafting agreements.
Conclusion
While the proposed policy changes are a welcome step, they would need to be supplemented by comprehensive law. Space is an excellent commercial venture for a mature space program like that of India. It needs continuous R&D which can very well be done by private players. However, the legal picture should be made clear before any further step is taken. India is a party to the UN Treaties on Outer Space activities and the domestic entities need to be regulated by local legislation. This sentiment is also echoed by Dr. Jitendra Singh, the Union Minister of State for the Department of Space.
The Finance Minister Nirmal Sitharaman had stated that a level playing field shall be provided to private companies in “satellites, launches and space-based services.” They will also be allowed to use ISRO facilities and other relevant assets to improve their capacities. Future projects for planetary exploration, outer space travel etc. shall also be open for the private sector. In furtherance of these suggestions, IN-SPACe has been created. However, there is still a need for proper law in the country. The legislation should be introduced and implemented swiftly to make sure India is not left behind in the new space race.
This post has been authored by Mr. Aaditya Vikram Sharma, Assistant Professor at Vivekananda Institute of Professional Studies, Delhi. He was assisted by Ms. Setakshi Pratha, a student at RGNUL, Punjab. This blog is a part of the RSRR’s Excerpts from Experts Blog Series, initiated to bring forth discussion on contemporary issues.