Commercialisation of space activity: Need for a law

India’s recent successful space missions have displayed its prowess in space technology and countries across the globe have come to terms with the fact that India is a force to reckon with. India has made history by becoming the first nation to reach Mars in its maiden mission and enter the planet’s orbit, a move that catapults the country into the scientific world stage.

Today, the Indian space programme has not only achieved considerable self-reliance in space technology but also has promoted its commercial utilisation. Building upon its rich expertise it has gathered through the years, it is bound to continue as a global leader in the space industry.

Because of the recent trends of globalisation, liberalisation, privatisation and commercialisation, the area is bound to experience several legal issues including contract fulfillment and dispute resolution with huge stakes involved and the present legal structure is grossly inadequate to deal with these changes. Hence, there is an urgent need for India to legislate on these issues.

Commercialisation and privatisation of space activities: During the last two decades, increasing emphasis on reducing governmental budgets worldwide has forced the world’s space faring nations, including India, to reassess their civil space programmes and hence, allow for privatisation and commercialisation in the field. A mutually rewarding partnership between the Indian space programme and the industry has been built over the past two decades. The space application sector witnessed tremendous developments with the active involvement of the private sector.

India’s space programme has followed the policy of utilising the capabilities and infrastructure of the Indian industry for space projects, and in return, promoting the application of the know-how for products and processes developed by the space programme in view of larger national benefits. In the 1980s, Indian space efforts witnessed an execution of large-scale application projects. This transformation not only brought about a sense of appreciation and confidence from the private sector but also necessitated the national space agency to make all-out efforts to ensure the participation of the industry as space activities increased.

The technological consultancy scheme launched in the early 1980s evoked an excellent response from the industry and research organisations in the country. For its part, the Indian industry played an important role in space projects and infrastructure development. The national space agency established its own wing aimed at technology transfers and industrial consultancy. A number of technologies developed in-house were transferred to various other industries. Antrix Corporation, the commercial wing of the Indian Space Research Organisation (ISRO), was established in 1992 with the objective of marketing space products and services in India and abroad.

India’s recent push for commercial activities will definitely give boost to its economy. Presently, to deal with commercial activities, India has Remote Sensing Data Policy 2011, Satellite Communication policy 1997 (Satcom Policy 1997), National Telecom Policy 2012 and Mapping Policy 2005. Very recently, India also opened its market for private players in space, mainly in the telecommunication sector. India is consistently emerging as a serious player in the international space market.

The need for the national space legislation is very timely especially in the light of increasing privatisation and commercialisation of space assets especially when both our public as well as private entities are expanding their capacity in exploration of outer space and scientific discovery. Need for a national space law is paramount for ensuring transparent regulatory framework and to ensure the growth and development in this capital intensive - high, return strategic sector.

Article 51 of our constitution encourages states to respect international law amongst other things. However, India’s international obligation undertaken under international law cannot be enforced in its courts unless the said international law has been enacted as a law. India never enacted a space law as it was never mandated under the space treaties. The international treaties on space law to which India is party always encouraged member nations to enact corresponding laws and not be obligated to do so.

No specific space law

Though space proliferation has been going on in a big way, there is no comprehensive or specific space law in India. The current policy framework governing the space sector in India is devoid of any consideration for the recent developments, including active involvement of the private sector and commercialisation of space activities.

Industry relationships, private participation in space activities both in India as well as in international ventures, transfer of technology and products marketing also need legal clarification. The absence of space legislation is likely to leave the judiciary to ‘legislate’ and fill the gap in the law. However, judiciary interprets law when the statute exists to that effect. Therefore, there is a dire need of space legislation in India.

The proposed space law should define the exact role of the Department of Space (DoS) and of different governmental and non-governmental agencies in space matters, including establishing a well-structured procedural and institutional mechanism.

The proposed law should then  spell out the procedure for adoption and implementation of space programmes, and regulation on the safety of launch and space flight, the question of transit of foreign space objects through national airspace, questions of liability and insurance, protection of intellectual property rights, spin-off benefits, and above all, implementation of international obligations under the various treaties.

The proposed legislation should provide for Creation of National Space Agency. This law should include licencing and certification of space activities, economic conditions of space activities, a provision for space infrastructure, space safety and space liability, space insurance, international cooperation and protection of intellectual property rights in outer space.

(The writer, who specialises in international air and space law,  is Registrar, NALSAR University of Law, Hyderabad)