Indian Space Policy 2023: Excessive Access and No Accountability; Lacks Legislative Foundation

The government last week released, after Cabinet approval, its much-awaited Indian Space Policy (ISP) after having earlier put out a Draft inviting comments. This is the latest in a long series of similar attempts which predictably failed due to faulty assumptions about national priorities in the space sector, the interests and capabilities of the private sector in India, and the interests and motivations of foreign entities to invest in the Indian space sector. The current ISP 2023 suffers from a repetition of all these weaknesses and a failure to learn from past mistakes. It compounds past misjudgments by adding several new and serious infractions of both Indian and international legal frameworks.

Misplaced Ambition

ISP 2023 essentially throws open the Indian space sector, in virtually all aspects other than security, to the private sector, termed NGEs (non-government entities). These NGEs may, henceforth, engage in activities ranging from satellite design and their entire gamut of operations, design, and manufacture of launch systems, and setting up and operating terrestrial tracking and control systems. Since the Policy does not specify the nature of these NGEs, and the place and role of foreign investment in them, it may be presumed that FDI in the sector is not ruled out, especially since an earlier Draft Space Activities Bill of 2017 had that specific goal.

Leaving that assumption aside for the moment, the perspective underlying the Policy is, as stated in the related PIB release, to unshackle the private sector towards commercialising the design-development and manufacturing capabilities in the Indian space sector. The aim is to boost India’s tiny share of 2% of the global space sector currently valued at $360 billion. Industry sources, and the rather poorly informed media, have projected that India could achieve as much as five times its current share or about $9-10 billion by 2030. If indeed, as the PIB release says, “the guiding light for this reform has been the vision of our Honorable Prime Minister, our talisman”, a second look is in order.

In support of these ambitions, the PIB release cites the examples of Elon Musk’s SpaceX, Jeff Bezos’ Blue Origin, Richard Branson’s Virgin Galactic, and the European largely state-owned giant Arianespace. The analogy is wholly misplaced.

The Indian space start-up space is undoubtedly vibrant and full of potential, but the companies fall far short of these overseas giants in terms of scale and investments. Till recently, private companies in India had mostly acted as sub-contractors of minor or major components, sub-assemblies, or assemblies for ISRO’s rocket launchers, satellites and ground-tracking systems. The new Policy seeks to go from a “supply-driven ecosystem to a “demand-driven one.” But comparisons with the above entities are unfounded. SpaceX for example has an estimated value of $140 billion and raises close to $1bn in each new investment round. India’s most promising start-ups such as Skyroot, which is developing its own small rocket for low sub-orbital launches, and Pixxel, which is launching high-resolution micro-satellites, have each raised around $50-100 million over many rounds. This is not to belittle the efforts of these brave and innovative Indian start-ups, but to underline the mammoth scale of the challenge where even the much bigger ISRO has barely begun to make a mark in the global satellite launch market.

A more targeted programme, with a proactive partnership between public and private sector players, while continuing to catalyse and support new private entities may have been better.

Flawed Institutional Structure

The Policy adopts a familiar Indian government structure of supposedly “autonomous” institutions functioning under the ever-watchful eye of Mother, in this case, the Department of Space (DoS) which reports directly to the PMO. The Policy structure has four pillars namely IN-Space (Indian National Space Promotion and Authorization Centre), which performs functions of authorization or permitting space activities, supervision (periodically issuing guidelines and procedures to be followed), promotion and hand-holding of private players for ease of doing business, and regulator, all rolled into one.

There are two aspects to this model which are worth noting.

One, it provides a laissez-faire environment for private players in space too, as it has in almost all industrial and commercial sectors where “regulatory agencies,” which are also simultaneously tasked with promoting “ease of doing business,” actually act to deregulate the sector. As seems to be the tendency in the present government, the US model is preferred to the more regulated European model, although even the US has tighter regulations than are commonly believed.

Second, this is a completely failed model cutting across different parts of government, the closest parallel being DGCA (Director General of Civil Aviation) which inspects aircraft, grants airworthiness certificates, guides and examines air-traffic controllers and finally investigates its own performance in case of accidents!

Then there are ISRO, which is to perform basic scientific activities, space exploration and human spaceflight, national priorities in remote sensing, and space research; the DoS which has an overall say over everything; and the newly created Public Sector Undertaking (PSU), New Space India Ltd (NSIL) to commercialize ISRO technologies, and which is the replacement for the ill-fated Antrix Corporation plagued by corruption scandals, whose ghost continues to haunt the corridors of DoS.

Absence of Legislation

The elephant in the room is the complete absence of a legislative framework and not even a hint of introducing suitable legislation, as was earlier envisaged in 2019-21. Instead, IN-Space has been given wide-ranging but purely executive powers without any legislative backing, which then belies the promise of a light regulatory environment. Within the Indian Constitutional set up, such all-embracing executive powers cannot be exercised without suitable Legislation which then provides accountability and oversight by the Legislature and the Judiciary. Even fixation of liability has been left to the discretionary orders of IN-Space from time to time! This once again betrays this government’s preference for untrammeled executive authority as displayed in many different spheres, for example in the Education Policy.

Such legislation is also a requirement of various International Treaties, such as the Outer Space Treaty, governing national activities in space, to which India is a signatory. Without suitable legislation, both state and private actors are likely to fall foul of international obligations, while the Policy casually claims sovereignty and delegates powers to IN-Space.

It should be noted that no other space power has put in place a national policy without corresponding and suitable domestic legislation. This should be a priority demand in the coming Session of Parliament.

Violation of International Treaty Obligations

Legal experts have pointed to a series of violations of international treaties in the Indian Space Policy 2023.

It has been pointed out, for instance, that the Policy’s vision statement speaks only of national economic interests, whereas Article 1 of the Outer Space Treaty obliges all nations to conduct space activities for the “benefit and interest of all countries”. Experts have underscored that India’s Policy follows the bad example set by the US, through its US Space Launch Competitiveness Act 2015 in conferring property rights to private entities, in permitting non-government entities to “engage in the commercial recovery of an asteroid resource or a space resource,” going against the collectivist approach of international space treaties. Such a conflict between national private good and international public good would also arise with the establishment of human settlements in other bodies in space. There are many other such provisions in the Policy which conflict with India’s obligations under International Treaties. Legislative action may provide a better basis to re-examine these than a Policy that has been drafted under the prevailing culture of executive excess and non-accountability.