For good reasons, the recently released National Space Policy 2023 (“space policy”) has inspired confidence in the commercial space industry and has demonstrated the government’s intent to give effect to the Atmanirbhar Bharat initiatives announced in 2020. For the uninitiated, the policy makes significant strides in outlining the vision for the roles that the private sector and traditional governmental bodies like ISRO will play in the next phase of India’s journey as a space power. However, in doing so, the policy contemplates an “autonomous” function for Indian National Space Promotion and Authorisation Centre or IN-SPACe. This autonomous role is intriguing as prima facie. It seems directed towards addressing concerns of conflict of interest due to ISRO (Indian Space Research Organisation) or the DoS (Department of Space) not only competing in the commercial space economy but also regulating it. However, as the devil almost always lies in the details, whether or not IN-SPACe is truly autonomous requires a more detailed examination for the correct picture or the lack thereof, to come to light.
Before I examine the issue of autonomy of IN-SPACe as set out in the space policy, it is worthwhile to examine and understand its precise utility, if any, as a source of law. As a policy that does not stipulate the means of enforcement thereof or the consequences of its violation, the space policy’s standing as a source of law for the space sector is questionable. In fact, while dealing with a similarly worded map policy, the Hon’ble Madras High Court, in the case of J. Mohanraj v. The Secretary to Government Home & Ors., in Writ Petition No. 29713/2008., held that, for a policy to qualify as a law, at the very least, it should set out the consequences of its potential violation. Thus, one should be circumspect about the ability of this policy alone to result in any conclusive and binding regulatory framework for space activities in India.
Furthermore, even as the space policy was announced and published, the government continues to work on the draft bills which will govern space activities and modernise our telecom regulations and laws. Thus, one can safely assume that the recently released space policy reflects the attitude, approach, culture, ethos and contours of the laws that will eventually govern space activities but is unlikely to qualify as a law. This context of the space policy may affect how much weight we must attach to it or the language employed in it. Nevertheless, my endeavour in this article is to identify the ambiguities around the “autonomous” functions of IN-SPACe, hoping that the laws that follow the space policy will resolve the same for the benefit of all stakeholders, regulators and entrepreneurs alike.
Adverting now to the question of how much autonomy IN-SPACe truly has, it would be helpful to refer to Section 5 of the policy, which reads as follows,
“IN-SPACe shall function as an autonomous Government organisation”.
In common parlance, the term “autonomous” means the ability to make informed decisions without external influences or coercion. In the context of any governmental agency, absolute or objective autonomy cannot exist as, ultimately, every state agency in a nation based on the rule of law, no matter how autonomous, is required to follow the law and is answerable to a host of institutions within the government and outside of it. This, in fact, is a feature of every responsible democracy. Thus, one could then assume that the term “autonomous” essentially was meant to project IN-SPACe as being free of the influence of ISRO and DoS.
The industry’s long-standing call for divesting ISRO/DoS of the powers or regulation emanated from its concerns that ISRO/DoS, running their commercial operations, such as the INSAT-based services or the launch services using the PSLV (albeit through Antrix or New Space India Limited), could have a conflict of interest if they have a say in the decision to authorise the space activities of their competitors. There remains no evidence that such a conflict of interest influenced decisions of licensing space activities of other private space actors. Still, one cannot deny the reasonableness of the apprehensions of bias in the decisions to license space activities when regulatory and operational roles are invested in the same agency. Furthermore, the fact that until the year 2020, there existed negligible activity and investment into non-governmental commercial space entities is symptomatic of the poor investor sentiment inspired by ISRO/DoS having operational and regulatory roles in the space sector.
In Section 4 of the Space Policy, while setting out what NGEs are permitted to do, reference is made to NGE’s establishing commercial space activities per the guidelines/regulations prescribed by IN-SPACe. However, a careful reading of the relevant extracts of Section 5 of the Space Policy reveals that while IN-SPACe has the power to “authorise” space activities set out in sub-clause (a) to (i), it has no power to formulate guidelines or conditions for the grant of such authorisations. So IN-SPACe is autonomous while granting authorisations. However, the space policy does not confer on IN-SPACe, the power to formulate conditions based on which it can either accord or refuse authorisation.
On the contrary, as per Section 5 (22) and (23) of the Space Policy, IN-SPACe has the powers only to a) prescribe conditions under which any authorisation already provided, if any, may be reviewed, revoked or modified and b) set out the list of space activities needing authorisation. While extensive provisions have been made for IN-Space to a) issue guidelines for meeting safety and security requirements for space objects, b) prescribe guidelines to address liability aspects arising out of potential damages due to the space activities, which are no doubt relevant for adjudicating applications for authorisation of space activities, they do not represent the full range of considerations that have to be set out and examined before decisions are taken to accord or refuse authorisation for space activities. For example, a relevant factor for authorising space activities is also the determination of the technical and financial capabilities of the applicant seeking such authorisation. The current scheme of the space policy leaves the power of setting standards for such technical and financial capabilities of applicants out of the hands of IN-SPACe.
More importantly, the power of DoS for formulating guidelines on these and other aspects relevant to the grant of authorisation of space activities is not ousted. Section 8 (2), the Department of Space remains the nodal department for implementing the Indian Space Policy-2023 through detailed policy directives, within the scope of which the various stakeholders shall carry out their assigned functions. Furthermore, in Section 8 (1), the DoS can still oversee the distribution of responsibilities outlined in the policy and ensure different stakeholders are empowered to discharge their respective functions without overlapping into others’ domains. This seems to suggest that the power to formulate detailed guidelines for implementing the policy and distribute the responsibilities of implementing the policy remains firmly with the DoS. In other words, the ultimate powers of regulating space activities remain with the DoS, while IN-SPACe only has the power to follow such regulations formulated by the DoS.
On a conjoint reading of Section 8 of the policy dealing with the powers of DoS and Section 5 of the policy, which sets out the roles and responsibilities of IN-SPACe, the only meaning that emerges is that while IN-SPACe can “authorise” space activities, the conditions for the grant of such authorisation will still have to come from the DoS due to the operation of Section 8(1) and (2) thereof. Furthermore, as evident from Section 5 (13) of the policy, the allocation of frequency/spectrum, the allotment of orbital slots as well as the grant of operation licenses for broadcasting and telecommunication activities continues to remain with the respective agencies such as the wireless planning and coordination wing of the DoT, the Ministry of Information and Broadcasting and the Department of Telecommunications.
In fact, since the traditional roles of the various ministries, including information and broadcasting, telecommunications, home affairs, and defence, remain undisturbed, the new policy seems to reiterate the regulatory concept of the inter-ministerial “Committee for Authorising the Establishment and Operation of Indian Satellite System” (CAISS) under the heavily criticised and failed erstwhile SATCOM Policy of 2000. The only difference now is that such an Inter-ministerial committee’s decision must translate to an additional authorisation from IN-SPACe, which is all but a formality. Thus, IN-SPACe does not appear to have the power to either authorise or refuse authorisation for space activity without the concurrence of the DoS, the DoT and the various other ministries involved. If this is the scenario, using the word “autonomous” to describe the roles and responsibilities of IN-SPACe is misleading, to say the least.
Whether or not true autonomy for IN-SPACe is desirable is a different issue altogether. However, the objective of the space policy is to attract investment into the space sector and facilitate robust trade in it. In that case, the language employed should provide a clear and predictable regulatory regime. By using terms like “autonomous” to describe IN-SPACe’s functions, but without providing for autonomy in the real sense by suitably aligning the functions of traditional bodies like the DoS and the DoT, this policy continues to fall short of providing a clear and predictable policy framework that has the potential to attract investments into the space sector. Such inherent contradictions within the policy raise concerns not just for investors. Still, it will likely leave ambiguities even amidst the multitude of ministries, agencies and departments regarding the precise parameters of their jurisdiction, powers and responsibilities.
As an example, one could argue, albeit unsuccessfully, that because IN-SPACe is defined as “autonomous”, it can defy directives of the DoS under Section 8(1) and (2), which then begs the question- will the decision of IN-SPACe prevail or will the decision of the DoS prevail? Besides causing anxiety and distress to private sector companies looking to do business in space, such questions have devastating legal consequences. In the infamous Antrix-Devas arbitration dispute, though all the ministries were aligned on the decision to terminate the contract with Devas, the fact that each government agency cited different reasons for justifying the termination itself influenced the eventual outcome against India. Ensuring the regulatory landscape speaks as a single voice to prospective applicants is vital for the new policy’s success.
While the chances of seeing amendments to the policy to address these concerns are slim, it is for the good people within the IN-SPACe, ISRO, DoS and other stakeholders within the Government to take note of these concerns. Either IN-SPACe is autonomous and therefore not bound by the DoS, or it is not autonomous and bound by the directives of the DoS. It can’t be both. India has to take a stand when forming a law governing space activities. Until it does, several of the regulatory factors that slowed growth in the space sector in India will continue to haunt the industry in the next phase of India’s journey as a space power.