Sandeepa Bhat B.*
Key Words: Common rights – DoS/ISRO – Gaganyaan – Intellectual property – Space Act of India
India has evolved as a major space power over the years. The twenty-first century India has been successful in reaching the moon and the mars, which has been accomplished earlier by only three other States in the world. The plan for the Indian human mission to the outer space (Gaganyaan) has been under consideration for more than a decade. Accomplishing it would also place India on the list of the select few States to achieve this feet of human presence in outer space. With an objective to have sustained human presence in outer space for enabling socio-economic growth, the Department of Space has come-up with the Draft Humans in Space Policy for India 2021 (hereinafter ‘the Draft Policy’), which was opened for public comments in February 2021.
The Policy and its Execution
The Preamble of the Draft Policy recognises the changing dimensions of space activities with the entry of private players into the field. The Indian Government is making efforts to unlock the space sector for incentivising private investments with an objective to boost its ailing economy, especially after the unprecedented economic impact of COVID-19. Through the Draft Policy, as stated in the Preamble, efforts are made towards the adoption of regulatory framework and partnership-building with the public-private associations. This policy framework for human spaceflight is intended to foster collaborations and address proliferation concerns. A reference can also be found in the Preamble on the compliance of laws, policies and treaties in the process of space capacity-building and furthering India’s role in the space sector.
Though the scope of the Draft Policy vaguely refers to activities under the Indian human space programme and future activities in conjunction with them without any definition, it seems to apply the proposed policy to both public and private sector activities. The substance of the Draft Policy mentions the basic policy principle as “The Humans in Space Policy aims for sustained human presence in space as an instrument for development, innovation and foster collaborations in alignment with national interests.” Though catering to the national interests is significant for the States, the need for fostering the international interest is equally significant in the field of outer space activities. The entire edifice of space law is rooted in the common rights’ principles developed under the five international space treaties of the twentieth century entered under the patronage of the United Nations. Thus, we have the principles like; province of all mankind, absence of national or individual appropriation, considering the interests and benefits of all countries, international cooperation etc. advocated under the space treaties. India, being a strong advocate of common rights’ regime in outer space, should recognise the interest of the international community in its every law and policy objective.
Execution of activities of human space programme is to be done by the Department of Space or by the Indian Space Research Organization (hereinafter ‘the DoS/ISRO’). The Draft Policy confers wide power to the DoS/ISRO to develop various guidelines including ‘approval-mechanism’ for “activities under the Indian human space programme in confirmation with extant Space Act of India and policy.” There are two concerns that arise out of this. First, this provision is based on the assumption of an enabling law for approval-mechanism, which has not been adopted till date in India. In the absence of an enabling legislation, delegating the power of authorisation to the DoS/ISRO without any legislative framework is questionable. Second, the clubbing of power of authorization and execution with the same agency is also a matter of concern as it amounts to a situation of the DoS/ISRO self-judging its activities. An independent agency to scrutinise the preparedness, safety, security and various compliances for authorization is essential since authorization for any space activity is associated with the burden of State responsibility and international liability under the space treaties. In the event of any disaster due to the lack of preparedness or inadequate safety measures either by the DoS/ISRO or by its private partner, the State exchequer would be hit hard for compensating the victims. This can simply be averted with a second level check of independent scrutiny.
The next part of the Draft Policy provides for eight guidelines to be followed by the Department of Space in connection with the Gaganyaan. These guidelines include the demonstration of capability for human space flight, developing a long-term roadmap for sustained human missions to outer space, identifying and developing necessary technologies, enabling greater participation of various stakeholders, developing collaborative framework for scientific research, fostering international cooperation to develop collaborative programmes, developing human resources and encouraging entrepreneurship, and promoting outreach activities to encourage public involvement in human space programmes. Though these guidelines are significant in achieving sustained human missions to outer space, much depends on the practical implementation of these guidelines. Unfortunately, the Draft Policy doesn’t provide for the specific nuances in terms of the implementation of the guidelines.
The last part of the Draft Policy mentions about the procedures, which seems to be a misnomer. Though it mentions about following certain procedures by the DoS/ISRO in implementing some of the guidelines, none of the four clauses in this part is on the procedure to be followed. The first clause mentions about the establishment of a national level body by the DoS/ISRO for supervising and coordinating collaborative ventures. Clauses 2 and 3 under this part entrust the DoS/ISRO to develop certification process for crew safety and to set criteria for crew selection. The last clause mentions about the application of the Space Act of India regarding the protection of intellectual property rights and settlement of disputes. Hence, none of the clauses provide for any procedure for implementing the guidelines. The proposed national level body under this part is primarily for coordination between various stakeholders and also for overseeing the activities under human space programmes. As it is intended to oversee all human space missions including the ISRO missions, the DoS/ISRO’s control over it cannot be justified from a legal perspective. Moreover, the Draft Policy fails to delineate the powers, responsibilities and role of different bodies like the ISRO, Antrix Corporation, NewSpace India Limited, and the proposed new national level body in connection with the human space missions.
On the intellectual property and dispute settlement clause, it is also pertinent to note here that the current status of the intellectual property rights’ protection in outer space under the Indian laws is quite unclear. Only reference to space-based intellectual property rights can be seen in the Draft Space Activities Bill 2017 (hereinafter ‘the Draft Bill’). Section 25(1) of the Draft Bill stipulates the protection of intellectual property rights generated or created during the course of any activity under any law for the time being in force. However, Section 25(2) confers the property rights to the Central Government on the space-based intellectual property created on board any space object. Unless there is change in this position of State monopoly over space-based intellectual property rights, the collaborative human space activities advocated under the Draft Policy would remain as a distant dream in India. It is obvious that the private players would have no incentive to make huge investments in human space missions when they are aware of the fact that their stake in the intellectual property rights would be usurped by the State. The reference by the Draft Policy to the Space Act of India for the settlement of disputes is also misleading as there is no clause on the settlement of disputes under the Draft Bill.
In the ultimate analysis, developing policy guidelines for the sustained human space activities in India is a welcome step. However, the current Draft Policy suffers from several limitations as highlighted above. It lacks long-term vision and requisite details for having a comprehensive policy. More significantly, the much needed legal understanding, which is indispensable in dealing with any space activity, is completely missing under the Draft Policy. Hence, it is advisable to revisit the Draft Policy to have a comprehensive, legally appropriate and transparent policy framework to facilitate collaborative ventures as has been intended by the drafters.
* Professor of Law & Director – Centre for Aviation and Space Laws, The WB National University of Juridical Sciences, Sec. III, Salt Lake City, Kolkata. INDIA.
 The Soviet Union/Russia, the United States of America and China are the only three other States.
 See https://www.isro.gov.in/sites/default/files/draft_humans_in_space_policy-02.pdf Last visited, 2 July 2021.
 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty) 1967, Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (Rescue Agreement) 1968, Convention on International Liability for Damage Caused by Space Objects (Liability Convention) 1972, Convention on Registration of Objects Launched into Outer Space (Registration Convention) 1975 and Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Agreement) 1979.
 See supra note 2, Clause 4.
 Outer Space Treaty, Art. VI.
 Ibid, Art. VII and Liability Convention.
 See https://www.isro.gov.in/update/21-nov-2017/seeking-comments-draft-space-activities-bill-2017-stake-holders-public-regarding Last visited, 2 July 2021.