By: Ananye Krishna
Presently, India does not have any legislation on space. It only has some policies and guidelines which govern space-related activities like the Satellite Communications Policy (hereinafter ‘SATCOM Policy’), 1997 and the Remote Sensing Data Policy (hereinafter ‘RSDP’), 2011 of the Department of Space, GoI. Besides, India is also party to international space treaties, the chief among them being the Outer Space Treaty of 1967. Now the question arises that when there are international laws governing activities related to space then what is the need for a domestic legislation.
Understanding this would require looking at countries which do have their own space legislations like the United States and France.[1] The fields covered by space law in the US, for example, are quite extensive and cover a broad array of legal issues involving questions of torts, insurance, contract, intellectual property rights, indemnification, etc. One of the most apparent needs for any such space legislation is to govern private bodies which are now increasingly getting involved in spatial activities. These private bodies include individuals and groups, and are to be considered representatives of their respective states of nationality in order that the liability for their actions can be deemed to lie with such states in accordance with international law. It is for this attribution of liability in an unfortunate circumstance that certain substantial rules become indispensable for the proper regulation and management of private bodies conducting space activities.
As stated, India’s space policy as of now consists only of the SATCOM policy and the RSDP. These policies only provide a mere outline of what the government wants to do with no legal obligation attached to them. More importantly, there is no policy which sets out the procedure to be followed for the authorisation of space launches by private entities. As such, the question surrounding the ascertainment of responsibility for damage that may arise out of space activities conducted by these entities remains unresolved.
Considering that start-ups like Dhruva Space intend to launch their satellites in the near future, these issues need to be looked at with greater urgency. The Chief Strategy Officer of Dhruva, Abhishek Raju, recently stated, “We need to convince the government to create policies to include smaller companies like us and integrate us into the ecosystem.”[2] The SATCOM policy of 1997 (in sections 2.2 and 2.2[c]), in this regard, for instance, talks to some extent about how there is a requirement for the formulation of norms and rules related to the authorisation of private companies for conducting space activities.
A recent development that could be observed on this front is the Government’s release of the Geospatial Information Regulation Bill, 2016 which aims at creating a licensing regime for the use of Indian geo-spatial information. If passed, this bill shall be considered a first major step taken by the Indian Government towards domestic legislation regulating space activities. The law, however, has its own set of demerits as it brings with it severe implications for violating the obligations created by it with fines as high as a billion rupees against committed transgressions. Such a law therefore has the potential to hinder the development of the private space sector as private enterprises operating in the field require huge finances, even to reach their break-even point. Putting such a big financial liability on a small entity which is already struggling to survive and thrive is more than just a setback.
For instance, Dhruva Space, a private space enterprise which wishes to use a satellite to help taxi services in the country will have to regularly keep track of the various changes taking place at the cellular level on the streets of India, and for all these changes they will be required to continuously go through the tedious process of getting their licences renewed where even a bit of laxity on their part may lead to a huge financial setback.
Conducive rules and regulations on the other hand will help in attracting private players to fill the existing void and this will help in lowering the cost of SATCOM, thereby increasing the number of people who would be able to invest in it.[3]
Satellites are more important to us than ever in this age where information is everything. From health care to education to transport, every field would only benefit with better technologies and infrastructure in the field of satellite development. Take into consideration the Goods and Services Tax (GST) bill which aims to replace the existing tedious and inefficient offline setup of tax collection, compliance and filling with an online mechanism. For this, the Internet will have to precipitate into the remotest regions of the country and for that to happen we would require satellites. This can be done economically only by including private players in the business.[4]
Monopoly over remote sensing, poor governance of geographical information and transponder leasing issues are other problems which need immediate attention. Presently, the government has complete control over the manner in which authorization for space launch has to be given and the manner in which spectrum and orbital allocation has to take place. Moreover, there is no clarity as to how these discretionary powers are exercised. As a result, very few private players are attracted to invest in space-related activities.[5]
There are many stakeholders who suffer because of non-availability of Ku band transponders. One of the major victims are the Direct-to-Home (hereinafter ‘DTH’) service providers as without access to Ku band transponders it becomes difficult for them to expand the number of channels which they can provide to their customers. Presently, 75% of the transponder requirements of DTH service providers are being met by foreign satellites. This lack of transponders will lead to DTH service providers facing heavy competition from the cable TV operators who presently have double the number of channels offered by the DTH service providers.
Presently, the DTH service industry depends on 78 transponders and it requires another 200 to survive the competition. Although, foreign satellites have sufficient capacity of the said transponders, for accessing them, private entities have to get clearance from the Indian Space Research Organisation (ISRO) and its commercial arm, Antrix Corporation. This delays the whole process because Antrix sublets the foreign transponders to Indian DTH providers through back-to-back agreements. Even though they can directly negotiate for the C band, there is yet another issue of short-term contracts as India hopes to replace foreign transponders with Indian ones when they become available.[6] India’s inability to launch satellites with the appropriate number of Ku band transponders is forcing many DTH service providers to move away from Indian satellites to the foreign ones.[7]
Transponders are also required to improve military communication[8] and various tele-health and tele-education programs. Tele-health refers to providing health care over a distance by means of modern communication devices, and for expanding the scope of this phenomenon it is necessary that telecommunication reaches the remotest of regions in the country. Similar is the case with tele-education. EDUSAT or GSAT-3 is the only satellite owned by the Indian Government which at present provides educational content to thousands of educational institutions across India. A mass campaign such as this one in the absence of an efficient domestic space ecosystem with inclusion of private players is unlikely to succeed. An example of such failure can be the case of Jammu and Kashmir where the satellite was functional till it was being maintained by a private company, but due to subsequent dereliction of duty by the State Government and lack of maintenance, equipment worth crores are rusting away while about 100 institutions are unable to enjoy the benefits of EDUSAT.[9]
In view of addressing these issues, it is not only desirable, but necessary for a large number of private players to enter the market. This can happen only if private individuals and entities find the market attractive enough with support from the government, which can promise them effective regulation and licensing, if not the technology, for conducting space activities.
One of the other fundamental issues which still raises concern relates to the prosecution for violation of any policy, particularly in the event that the latter results in no wrongful losse or gain. One classic illustration of this situation could be the much scandalized Antrix-Devas deal, where officials flouted the SATCOM policy and the guidelines set by the ITU (International Telecommunication Union) and the Department of Space, GoI in order to provide Devas Multimedia (a Bengaluru-based private multimedia company) with a wrongful gain of Rs. 578 crore, attracting charges under the Indian Penal Code, 1860 and the Prevention of Corruption Act, 1988.[10] This case raised a very pertinent question surrounding the uncertainty of prosecution of defaulters had there been no wrongful gains made out to Devas.
Another example could be the one when Intelsat was allotted an orbital slot (meant only for Indian satellites) in blatant violation of the SATCOM policy and the ITU Radio Regulations (1995), and other than a reprimand from the Comptroller and Auditor General (CAG), the issue did not receive much heed.[11] Corruption and scams of any magnitude are potent enough to scuttle the growth of any new ambitious project and their impact must not be underestimated.
With India treading on the path of developing new technologies and infrastructure for its ambitious pursuits of space use and exploration, it is only necessary that it has its own domestic laws and regulations in place which are in tune with the international space treaties and conventions.
[1] F Tronchetti, ‘National Space Legislation’ Fundamental of Space Law and Policy (SpringerBriefs in Space Development 2013) https://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&ved=0ahUKEwjhs87Pt43NAhVCm5QKHeXoBPEQFggiMAE&url=http%3A%2F%2Fwww.springer.com%2Fcda%2Fcontent%2Fdocument%2Fcda_downloaddocument%2F9781461478690-c2.pdf%3FSGWID%3D0-0-45-1404736-p175166507&usg=AFQjCNH2gukdItfR5yVv577VE-GoVxY3QA&cad=rja
[2] Indulekha Aravind, ‘Dhruva’s big leap opens private sector to space’ (Business Standard, 12 January 2015) http://www.business-standard.com/article/companies/Dhruvaa-s-big-leap-opens-private-sector-to-space-115011100794_1.html
[3] TV Ramachandaran, ‘TV Ramachndaran: Satellite communication can drive the broadband revolution’ (Business Standard, 23 April 2016) http://www.business-standard.com/article/opinion/t-v-ramachandran-satellite-communications-can-drive-the-broadband-revolution-116042300748_1.html
[4] Prashanti Upadhyaya, ‘Necessity for the enactment of space law in India’ (Legal India, 18 March 2016) http://www.legalindia.com/necessity-enactment-space-law-india/
[5] ibid.
[6] Suchi Bansal, ‘Capacity crunch May affect DTH expansion’ http://www.livemint.com/Opinion/bSaFgLb9PjI6BZIrE26CwO/Capacity-crunch-may-affect-DTH-expansion.html
[7] ‘DTH satellite services: Department of space lost out to foreign players’ (The Hindu Business Line, 28 November 2014) http://www.thehindubusinessline.com/economy/dth-satellite-services-dept-of-space-lost-out-to-foreign-players/article6644047.ece
[8] Ajey Lele, ‘GSAT-12: Boosting transponder demand’ (Institute of Defence Studies and Analyses, 19 July 2011) http://www.idsa.in/idsacomments/GSAT12BoostingTransponderDemand_alele_190711%20
[9] Mukeet Akmali, ‘ISRO’s EDUSAT not functioning for two years’ (Greater Kashmir, 2 July 2014) http://www.greaterkashmir.com/news/business/isro-s-edusat-not-functioning-for-2-years/173343.html
[10] Amitabh Sinha, ‘Story of a Rs. 4000 crore fiasco at ISRO’ (The Indian Express, 8 October 2015) http://indianexpress.com/article/explained/antrix-devas-the-story-of-a-rs-4400-cr-fiasco-at-isro/
[11] ‘CAG raps ISRO for allowing foreign satellites in Indian orbital slot’ (Zee News, 6 September 2013) http://zeenews.india.com/news/space/cag-raps-isro-for-allowing-foreign-satellites-in-indian-orbit-slot_874694.html
(Ananye is a student in the first year of study at NALSAR University of Law, Hyderabad.)
The RMLNLU Law Review Blog 