The Authors, Vasu Manchanda and Kshitij Dahiya are students of Faculty of Law, University of Delhi.

Introduction

Space-age commenced with the launch of the first satellite, Sputnik-I, in 1957 by the Soviet Union that opened the doors of space for exploration and activities for the rest of the world. India’s tryst with space began in 1962 with setting up of Indian Space Research Organisation (“ISRO”), the Indian National Committee for Space Research as it was then called, followed by the launch of its first rocket in 1963 under the guidance of Dr. Vikram Sarabhai. Thereafter, the launch of India’s first domestically designed and fabricated satellite, Aryabhatta, in 1975, impelled the country’s technological advancement in the realm of space. 

Consequently, in 2017 – ISRO launched the most powerful home-made rocket, collaborated with National Aeronautics and Space Administration (NASA) to build an Earth-imaging satellite, launched a South Asian Satellite, and further launched 104 satellites in a single mission. It is noteworthy that ISRO has launched over 300 satellites for 33 different countries as of December 2019. 

Space, which has been an exclusive domain for the public sector for years, is finally opening up to the private sector in India given advances in the technology and government’s policies that have enabled private companies to provide services pertaining to putting things into orbit, supplying materials to ISRO, launching satellites, among other activities, on a commercial basis. Further, ISRO is planning to allow the private entities to establish their own launch pad at Sriharikota in order to launch their spacecraft and/or rockets.      

It is imperative to mention that it is not that there is no private entity involvement in India’s space industry. Rather, a substantial part of the manufacturing of satellites and rockets is undertaken by the private sector only. However, its role is limited to that of suppliers of components and sub-systems. It lacks requisite technology or resources to compete in the market, undertake independent space projects or provide space-based services as the US-based aerospace manufacturer and space transportation services company, SpaceX, to domestic, or international customers. In order to instil investor confidence in private space companies, robust regulatory mechanism and an integrated system are required.

International Treaties

In 1957, the launch Sputnik-I, into the orbit, led to the establishment of the Committee on the Peaceful Uses of Outer Space (“COPUOS”) by the United Nations (UN), which further created two sub-committees, namely:

  • A legal sub-committee
  • A scientific and technical sub-committee

COPUOS has been the forbearer in formulating the international law on outer space consisting of five treaties, namely:

  • Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies, also called the Outer Space Treaty 1967

With 110 ratifications and 23 signatories, the treaty forms the basis of the international space law. It ensures that outer space is free for use and exploration by all states, for the benefit and in the best interest of all countries and mankind. States are prevented from placing weapons of mass destruction on celestial bodies, into orbit and/or in outer space, in any other manner. By regarding astronauts as the envoys of mankind and limiting the use of the moon and other celestial bodies only for peaceful purposes, the states are to be held liable for any damage caused in the outer space by the government of non-governmental entities deployed space objects. Further, the states are prevented from making any claims of sovereignty in outer space.

  • Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, also called the Rescue Agreement 1968

According to the terms of the agreement, the signatory states are required to provide necessary assistance for the rescue and safe return of astronauts and objects of a spacecraft, in the event of any distress, accident and/or emergency or unintended landing in the territory within the jurisdiction of a signatory state or on the high seas or in any other place not under the jurisdiction of any state.

It is based on the principle that the state which launches any space object from its territory would be held liable for any damage caused on the surface of Earth, to aircraft, or any other damage caused in outer space. However, it is pertinent to note that in case of space objects being launched by a private person, it is not the private person but the state to which it belongs, which is held internationally liable.

The objective of the convention is to ensure the right use of space environment. It requires the launching state to register the space object, which is to be launched into earth orbit or beyond, by means of an entry in the appropriate registry maintained by the state, the establishment of which is informed to the Secretary-General of the UN. Each state of registry needs to provide information concerning the name of the state, date, territory or location of launch, designator, function and registration number of space object, orbital parameters and any other additional information that is required, to the Secretary-General of the UN, as soon as practicable. The United Nations Office of Outer Space Affairs (UNOOSA), the body serving as a secretariat for the COPUOS, maintains the register of objects launched into space.  

  • Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, also called the Moon Treaty 1979

The treaty states that the exploration and use of the moon and its natural resources are to be carried out for the benefit of all countries, and no state party can exercise claim on it. It ensures that the celestial bodies are used exclusively for peaceful purposes and their environment is not disturbed. Further, any state party that learns about the crash, forced or unintended landing on the moon of a space object, not authorised by it, is supposed to immediately inform the launching State Party and the Secretariat General of the UN.    

Indian Position

With respect to India, it is noteworthy that though it is a signatory to the Moon Treaty 1979 and has ratified other four treaties, in addition to two more related treaties, namely, Treaty banning nuclear weapon tests in the atmosphere, outer space and under water and Convention on the prohibition of military or any other hostile use of environmental modification techniques, comprehensive national space law, and policy regulating the operation of space activities undertaken by private and public sector, is not yet in place.  The only regulatory framework governing the space industry in India is determined by the Satellite Communication Policy, 1997, the revised Remote Sensing Data Policy, 2011, the Technology Transfer Policy of ISRO, and the Constitution of India, 1950, in addition to the setting up of a new organisation called Indian National Space Promotion and Authorisation Centre (IN-SPACe) which is expected to be functional by December 2020. The mentioned policies are analysed as follows:

  • Technology Transfer Policy

It is a well-defined and systematic policy for the transfer of know-how of technologies and products developed by the Indian Space Centres to nurture Indian industries and their application in the commercial realm pertaining to various space projects. It facilitates the provision of various products and services relevant to space systems such as communications, broadcasting, geospatial information services, manufacturing satellites and its components, technology transfer from ISRO, and meteorological services to achieve significant industrial participation. Further, it enables licensing of technical know-how from various ISRO centres; consequently, around three-hundred technologies have been transferred to the domestic industries to date, and licensee industries have been enabled to produce and market products licensed by ISRO.

  • Satellite Communication Policy, 1997

The objectives of the Satellite Communication Policy, 1997 are manifold - firstly, to develop a satellite communications service industry; secondly, to develop a communications satellite and ground equipment industry; thirdly, to further use and develop the capabilities build in India in the sphere of satellites, ground equipment design and launch vehicles; fourthly, to make available the infrastructure built through the Indian National Satellite System (“INSAT”) to more people; and lastly, to attract Foreign Direct Investment (FDI) and the private sector investment in the space industry. In order to address the lacunae of the policy, the policy makers framed the norms, guidelines and procedures in 2000. The issued guidelines and norms elaborated the scope of the policy and emphasised the use and development of the INSAT network, provided preferential treatment to Indian satellites, enhanced the capacity of transponders and INSAT network for the use of Indian satellites by private entities, amongst performing other essential functions, for the promotion of telecommunication, broadcasting and meteorological services in India.       

  • Remote Sensing Data Policy, 2011

Recognising the essence of remote sensing data and the availability of high –resolution images from commercial and foreign remote sensing satellites, for various developmental activities and benefit of society, the Government of India adopted the Remote Sensing Data Policy, 2011 and made Department of Space (“DoS”) the nodal agency for all actions related to permitting the acquisition, dissemination and/or management of remote sensing data in support of developmental activities, undertaken within the purview of the policy. The objective of the policy is to facilitate user access to high-resolution data required for developmental activities.

  • Indian National Space Promotion and Authorisation Centre (IN-SPACe)

The Union Cabinet, on June 4, 2020, approved the creation of the Indian National Space Promotion and Authorisation Centre (IN-SPACe) in order to provide a level field to private market entities to use Indian space infrastructure. It aims at giving a much-needed boost to the private sector participation by hand-holding, guiding, and promoting the private industries in space activities by virtue of a robust and favourable regulatory regime. It will further enhance the socio-economic utilisation of India’s space resources and increase the space-based activities through improved access to ISRO infrastructure, satellite data, facilities, scientific and technical resources, and other space assets.  

 

It is imperative to mention that in addition to IN-SPACe, there are two other organisations, namely, New Space India Limited (NSIL) and Antrix Corporation Limited (ACL), created by the government to stimulate the growth of Indian industries in the space sector and promote space activities. NSIL functions under the administrative control of DoS and aims to commercially utilise the research and development works of ISRO and other constituent units of DoS. ACL, on the other hand, also performs similar functions. It is a marketing arm of ISRO and works towards commercial exploitation of space products and transfer of technologies and provides technical consultancy services to customers worldwide. 

In addition to the above-mentioned policies formulated to provide a regulatory environment and reduce uncertainties concerning the space industry and Article 51 and Article 73 of the Constitution of India showing respect for international law and treaty obligations in consonance with the Vienna Convention of the Law of Treaties, 1968, space legislation is still wanting. Though the Department of Space issued the draft Geospatial Information Regulation Bill, 2016 which proposed to make it mandatory for any person to take permission from a government authority before acquiring, disseminating, publishing or distributing any geospatial information in India and the Draft Space Activities Bill, 2017 which sought to dismantle government monopoly and encourage the participation of non-governmental private entities’ involvement in the Indian space sector. Having faced criticism from various stakeholders, including cyber law experts for certain lacunae, among other reasons, the latter bill is still pending consideration and hasn’t seen the light of the day.

The need for space legislation

Having analysed the international treaties and domestic legal and administrative policies governing satellite communications, it can be inferred that the policies merely sketch out what the government of India wants to achieve; however, with no legal obligation attached to it, the dream of ‘Digital India’ and India becoming a space superpower cannot be achieved. A robust legal regime would instil investor confidence, attract FDI and new technologies, reduce administrative and regulatory uncertainties, provide clarity on stamp duty, registration requirements, insurance, transfer of property, contractual obligation, space debris liability and intellectual property rights concerning space-related issues, and flourish space entrepreneurship by providing a level playing field to the private entities. Further, one of the major roadblocks in the working of ISRO is India’s poor electronic manufacturing ecosystem. The absence of a robust home-grown electronics market leads to a massive import of spacecraft components, which in turn increases the cost of operations considerably.

The policymakers need to resolve the following issues in virtue of requisite space legislation:  

  • Single Independent Regulator – In contradiction to the present multiple ministries, agencies and departments, namely, the Ministry of Home Affairs, the Department of Space, the satellite divisions of Department of Telecom, the Department of Telecommunications, the Telecom Engineering Centre, the Network Operation and Control Centre, the Ministry of Defense, and the Ministry of Defense, a single independent regulator is required to perform regulatory processes including the issuance of a place in orbit to launch a satellite and/or rocket, mandatory licenses to launch it, spectrum to communicate with it, and clearance for the technology and/or space equipment to be used. Further, parameters to approve or deny required applications need to be in place to have certain and accessible regulatory eco-system in order to avoid exorbitant delays resulting in increased costs.    
  • Space debris – Space debris or space junk encompasses both man-made and natural (meteoroid) particles that enhance the probability of disastrous collision that may cause damage to space vehicles. Although there is no specific international treaty or convention dealing with the imposition of liability, some long-standing guidelines were issued by NASA, on ‘how to deal with space debris’ which were later adopted by the UN General Assembly and COPUOS. However, well-defined provisions on liability of the launching state need to be formulated to reduce the persisting or potential conflicts among countries.
  • Security measures – With the rising threats to national peace and security by potential space and cyber warfare possibilities, countries need to invest adequately in adopting cyber and military security measures. A manufacturing defect in spacecraft makes it susceptible to cyber-attacks and/or surveillance; thereby, leading to infringement of privacy of persons and data breach. Rules and regulations on lines with the Data protection laws need to be formulated to ensure that adequate cyber security measures are in place.
  • Liability for damage-  Clarity needs to be provided for what constitutes liability given that Article 2 of the Liability Convention 1972 states that a launching state shall be absolutely liable for damage caused by its space object on the surface of the earth or to the aircraft flight and would have to pay compensation for the same. It is pertinent to note that such a clause is ambiguous as it provides no clarity with respect to the computation of the quantum of damage to be paid. Further, according to Section 12 of the draft Space Activities Bill, 2017, an obligation is imposed on the licensee to indemnify the Central Government from any third party claim concerning loss or damage incurred by a space vehicle or space activity. However, the quantum of indemnity is left to be determined by the Central Government. It is imperative to note that this can lead to uncertainty and drive away domestic and FDI in the wake of quantum of liability not being capped in contradiction to other countries’ Space Acts. Further, Section 13 of the Bill states that the punishment for undertaking commercial space activity without license or authorisation would amount to imprisonment and/or a hefty fine of atleast one-crore rupees. It is imperative to note that such a stringent punishment would deter investors from investing in space companies fearing losses. Also, law holding the launching state liable for damage caused by objects launched into space by a private company needs to be looked into. 
  • Intellectual property rights- According to Section 25 of the Bill, any invention or other form of intellectual property rights generated, created or developed during the course of any space activity or onboard a space object in outer space shall be deemed to be the property of the central government and shall be protected by law in force in order to safeguard the security of the nation. It is noteworthy that such a provision might deter the potential participation of the private sector in the Indian space industry and thus needs to be looked into by the policymakers to enable innovation in the space industry.     

Concluding remarks

Satellites are extremely pragmatic and dynamic instruments. They’ve completely revolutionised almost all the aspects of human existence. They’ve impacted the way countries navigate, communicate, protect their borders, forecast agriculture production, and mitigate disasters. They are being deployed in the development of citizen-friendly technologies such as Over the Top (OTT) platforms, telemedicine and smart cities, among other domains. India now has its own GPS equivalent system called NavIC, which has been made available to the public and can be used to track and locate missing vehicles, conduct surveillance on the borders, etc. In order to foster the growth of the Indian space industry and enable private entities to contribute towards making India a space superpower, robust space legislation is all the more imperative. India, must in accordance with Article 51 and Article 253 of the Constitution of India, bring about the requisite legislation that would not only facilitate public-private partnership and rapid technological advancement but would also increase the pace of indigenisation and manufacturing within the country. Further, even the Satellite Communication Policy, 1997 and Remote Sensing Data Policy, 2011, need to be reformed to meet the current challenges. However, precaution needs to be taken that the Indian space industry does not become overly regulated deterring potential investment and driving domestic and international investors to other jurisdictions having a more robust yet favourable regulatory regime, such as Luxemburg, Japan, Canada, Dubai, Singapore, Russia and the United States of America (USA).  

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Vasu Manchanda and Kshitij Dahiya