By Sourya Banerjee
The Indian Space Research Organisation (ISRO) recently successfully put five British satellites into orbit in just over nineteen minutes.1 The Polar Satellite Launch Vehicle (PSLV) was rented by Britain, and the British company Surrey Technology Limited also hired an entire rocket for the first time. Since 1999, India has launched forty satellites belonging to other nations, and with the successful launch on 26 July it took its tally to forty-five.
For India, space programs are not about competing with an elite group of countries. As the Father of the Indian Space Program, Vikram Sarabhai, said,
‘There are some who question the relevance of space activities in a developing nation. To us, there is no ambiguity of purpose. We do not have the fantasy of competing with the economically advanced nations in the exploration of the moon or the planets or manned space flight. But we are convinced that if we are to play a meaningful role nationally, and in the community of nations, we must be second to none in the application of advanced technologies to the real problems of man and society.’2
There is no doubt that India needs to develop and advance in space research, and the clear alternative to emptying the government’s treasury in attempts to explore the final frontier is to privatise the industry.
Private Stakes in Space Exploration
India does have private stakes in space exploration. As per the Make in India initiative, FDI of up to 74% is allowed in the ‘establishment and operation of satellites, subject to the sectoral guidelines of the Department of Space/ISRO, under the government route.’3 There are some companies with private satellites and investments in the public sector, but those are limited to sectors like telecommunications, or simply help the ISRO.
The defence sector in space activities is completely off-limits for privatisation in light of national security concerns. The rationale of this move is undeniable, so private companies are confined to investing only in non-defence space activities in India. However, if India wants to catch up with and match the rest of the world, it must give serious thought to the privatisation of defence activities.
Legal Obstacles to Privatisation
As of January 2012, only seven private citizens have flown to space on their own dime,4 each shelling out tens of millions of dollars for their golden ticket to the International Space Station. Their expenditure suggests that a market for space travel exists – a necessary prerequisite for establishing affordable spaceflight – and there is no reason why India shouldn’t, sooner or later, tap into that market.
However, the legal technicalities of space exploration are problematic. Article 245 of the Indian Constitution empowers the Parliament and state legislatures to make laws.5 There are three lists – the Union list, the State list and the Concurrent list – which specify items under the jurisdiction of the Parliament, items under the jurisdiction of the state legislatures, and items both have jurisdiction over.
‘Space’ as an item is not mentioned in the Union list (items the Parliament has jurisdiction over), because the Constitution was adopted in 1950 while space exploration took off only in the early sixties. But, by virtue of Article 248,6 the Parliament retains the power to make laws on any subject not enumerated in either the State list or the Concurrent list. This gives the Union the right to make regulations regarding space exploration. The major drawback, then, is that there is no comprehensive or specific law regarding space exploration in India. The current policy framework governing the Indian space sector hasn’t taken much consideration of recent developments in the industry, like the commercialisation of space activities.
Private participation in both Indian and international space ventures, the exchange of technology and products, industry relationships, and marketing all need legal clarification. The absence of legislation is likely to leave filling in the gap up to the judiciary, but the judiciary can only interpret the law when a statue exists. With no precedent on this matter, there is a dire need of space legislation in India.
Items under the Proposed Legislation
The proposed space legislation should establish a well-structured procedural and institutional mechanism. The exact roles of the Department of Space, and of various governmental and nongovernmental agencies in space matters should be defined.
Dr. V. B. Reddy, Head of the Centre of Air and Space Law at NALSAR University of Law, thinks that the proposed law needs to address the procedure for adoption and implementation of space programmes, the regulation on safety of launches and of space flight, the question of transit of foreign space objects through national airspace, the questions of liability and insurance, the protection of intellectual property rights, spin-off benefits, and above all, the implementation of international obligations under various treaties.7 The law should also address licensing and 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.
An Emerging Superpower
In recent years, scientific missions, deep space missions, commercial launches, and technology for less expensive access to space have figured in the nation’s space plans. This advancement has lead to a stage where it’s economically viable to extend the private sector’s reach into the space sector not only for telecommunications and scientific purposes, but also for defence purposes. This would greatly boost India’s defence and would make it a major force to be reckoned with.
As India tries to cement her position as an emerging superpower, we must look to ourselves and to the heavens.
The author is a final year Law student at the Faculty of Law, IFHE, Hyderabad and a Guest Columnist at LiveLaw.8