Private Players’ Guide to the Galaxy: Key Aspects of Norms, Guidelines and Procedures for Implementation of the Indian Space Policy

The Indian Space Policy, 2023 launched a new era enabling the private sector to foray into the Indian space sector and propelled an entrepreneurial roadmap and the imagination of existing and potential Indian space players where “the sky is not the limit”.

The number of startups in the Indian space segment has grown exponentially from 1 in 2014 to 189 in 2023, with investment in the sector standing at US $124.7 million in 2023.¹ While, the Indian space economy is presently valued at approximately US $8-9 billion², it constitutes a relatively small piece of the pie considering that the global space economy has been valued at US $630 billion in 2023.³ With the value of the global space economy projected to increase to US $1.8 trillion by 2035⁴, and the Government of India (“GoI”) aiming to capture close to 10% of the global space economy by 2030⁵, the recent evolution of the regulatory regime for space related activities promises to be that leap which can set the ball rolling.

It is with this spirit and objective, that vide a Gazette Notification dated 16-4-2024, the GoI introduced the Foreign Exchange Management (Non-debt Instruments) (Third Amendment) Rules, 2024, whereby the norms for the foreign direct investment (FDI) policy in the space sector were further liberalised. The Amendment recognises the certain sub-sectors in the larger space segment and prescribes separate investment caps for each, which are as follows:

#	Sub-sector	Sub-sectoral cap	Entry route
	Satellites, including manufacturing and operations, data products, and ground/user segments.	100%	Automatic route for up to 74%, beyond which governmental approval required.
2.	Launch vehicles, including associated systems and sub-systems as well as creation of spaceports for such launches.	100%	Automatic route for up to 49%, beyond which governmental approval required.
3.	Manufacturing of components and systems or sub-systems for satellites and ground/user segments.	100%	Automatic.

Building further on these stepping stones to develop a synergistic approach in terms of public-private partnership, the Department of Space (DoS) has now introduced the Norms, Guidelines and Procedures for Implementation of the Indian Space Policy, 2023 (NGP), clarifying the authorisation requirements and to an extent, parameters within which private players are expected to operate in India. Some of the key considerations that emerge from the NGP are summarised below:

A. Structuring considerations

The NGP stipulates the following requirements for the authorisation in relation to space activities:

(i) Indian entity to seek authorisation

Other than for certain specified purposes, the NGP notably permits only an Indian entity which includes a non-governmental entity (NGE) to seek authorisation from the Indian National Space Promotion and Authorisation Centre (IN-SPACe) for undertaking space activities. NGEs are entities, whether in the form of a company, partnership, association or trust, as established under the respective Indian laws.

Foreign players who wish to seek such authorisation are accordingly required to apply for the same through another Indian entity which could be its Indian subsidiary, joint venture or any other collaboration arrangement recognised by the GoI . However, consents from both, the Indian entity, which is the channel for making the application, as well as the foreign counterpart, are to be furnished, affirming that the complete control over the satellite/constellation would rest with the Indian entity which is the applicant and that such activities will be governed by Indian laws.

In the case of an authorisation of a non-Indian geostationary orbit (GSO) and/or non-geostationary orbit (NGSO) satellite/constellation to enable provisioning of its capacity in India for communication services, the non-Indian entity can also appoint an authorised representative or dealer in India (if not a subsidiary or joint venture) (Indian representative) and only such Indian representative would be permitted to seek the authorisation. Such Indian representative would be required to submit documentary evidence on the authority granted by or the contractual relationship with the foreign satellite operator to provision the satellite capacity in India and the authorisation would be co-terminus with the existence of such contractual relationship.

Space activities which foreign players can undertake includes:

(i) Establishment/operation of satellite/constellation for communication services in GSO/NGSO using Indian or non-Indian orbital resources.

(ii) Establishment/operation of non-Indian satellite/constellation to provide communication services in India.

(iii) Establishment/operation of remote sensing and amateur satellite systems.

(iv) Undertaking sub-orbital/orbital launches from the Indian territory.

(v) Establishment of launch facility for operation of space transportation systems.

Interestingly, authorisation for the establishment and operation of ground stations is permitted to only Indian entities, who can however, transfer the ownership to other Indian or non-Indian entities with the authorisation of IN-SPACe. Under the NGP, the entire application process is expected to be completed within 75 to 120 days.

As can be seen from the above list , a broad gamut of activities has been made available for the participation of foreign players, however, it is pertinent to note that the Indian entity established by such foreign player would have to be under “Indian management and control”, where the majority of its key managerial personnel (KMP) are Indian citizens, and the “control” is with Indian citizens. Details such as foreign shareholding, foreign nationals who are KMPs, and ultimate/significant beneficial owners would have to be disclosed by the applicant to the governmental authorities at the time of making the application.

Post receipt of regulatory authorisation, if there is any change in the management, control or shareholding pattern or any other changes in the details originally submitted to the governmental authority, such changes must be reported to IN-SPACe within 48 (forty-eight) hours, following which IN-SPACe may determine whether to cancel the authorisation granted by it or to amend it, as required.

Foreign investors watching the Indian space sector with keen enthusiasm on account of the liberalisation in the FDI norms would need to bear in mind that the space sector liberalisation approved by the GoI effectively pertains to economic interest and unlike other sectors where voting rights are typically aligned with the economic interest of the foreign investor under FDI regulations, the “Indian management and control” requirements and limitations around undertaking a direct investment in case of the space sector, would limit a foreign player’s ability to translate even a significant investment into a controlling voting interest.

This may prove to be a disincentive for potential foreign investors in the space sector, who are seeking a dominant role in the proposed operations. It would also require foreign investors to evaluate structures and mechanisms to adequately protect the value of their investment and to secure them through means other than typical equity-based control.

(ii) Downstream structures

The authorisation is entity-specific i.e. it extends to the entity which is in receipt of the authorisation and does not extend to the holding company, subsidiary or any person in common control or that exercises control over the applicant. Considering the evolving business models where the line between operation of space assets and end-use application is quickly blurring since application-based companies are now more inclined to own and operate space assets and vice versa, this may be an impediment if such companies were to look to utilise a group structure.

Illustratively, if SpaceX were to commence operations in India along with Starlink (which is a wholly owned subsidiary of SpaceX), separate IN-SPACe authorisations would have to be sought by both entities respectively, and both entities would be independently scrutinised by IN-SPACe, notwithstanding that Starlink is a wholly owned subsidiary of SpaceX.

The authorisation is also not transferable to any third parties except with the discretionary consent of IN-SPACe. In the event that consent is granted, the original applicant would continue to act as a surety for compliance and performance of the obligations by the transferee and would be required to execute an unconditional performance guarantee. Such nuances may add a layer of complexity to any structure being contemplated by an applicant for commencing space activities in India. As a potential workaround to circumvent added compliance burdens, subject to commercial feasibility of course, the applicant could explore vertical integration or a merger of the legal entities involved.

B. Financing considerations

The applicant is required to demonstrate financial capabilities i.e. source of funding, including financial status in the recent annual reports for the proposed space activity for which the authorisation is being sought. While no specific parameters have been prescribed in the NGP with regards to the adequacy of financial capability, the applicant is required to disclose its net worth, insolvency status and submit income tax, as well as annual returns to establish its financial credibility, and it can be expected that the regulatory authority will take these parameters into account while deciding on an application.

One of the biggest roadblocks for investment in the space industry is that there are very few ways for an early space company to meaningfully show that it is achieving its growth milestones. A giant in the sector like SpaceX was founded 22 years ago and has still not reached sustainable profitability or generated a typical venture capital exit.⁶ Given the disclosures pertaining to financial capability that would be required upfront at time of making an application, the lack of authorisation coupled with the challenges that an early startup already faces, this could lead to a chicken and egg scenario where the startups require investment and financing to obtain the authorisation and the investor/lender remain wary of the potential risks as they attach importance to the readiness to decide on funding and not mere ideation.

C. Liability related aspects

For launch operations from the Indian territory, the NGP requires the applicants to obtain a third-party liability insurance covering the GoI as an insured party. The minimum and maximum amount of insurance, period of cover, and other terms and conditions of such insurance policy would be prescribed by IN-SPACe. Accordingly, applicants are also advised to share the proposed draft of the insurance policy with IN-SPACe for its examination and clearance to avoid subsequent modifications.

For launch operations of non-Indian space objects from authorised launch operators and launch of authorised space objects but from non-Indian launch operators, the launch contract must assign all liability and associated risk to the non-Indian party and in the event a third-party insurance exists, the GoI should also be named as an insured party.

On the account of the Convention on International Liability for Damage Caused by Space Objects, 1971 the NGP has gone a step further to limit the State liability, as any loss or damage incurred by IN-SPACe or the GoI which are attributable to an applicant, would be fully recoverable from the applicant.

Various countries such as the United States of America, France and the United Kingdom⁷, have already taken steps to limit the liabilities for private players or are providing State guarantees for launch activities taking place from their respective territories by way of domestic legislations. This is not a novel approach for the GoI, as it has taken similar steps in other sectors as well, such as limiting the liability of the operators of a nuclear plant in India.⁸

If the concerns and reactions of foreign investors in the context of the strict liability regime under nuclear laws is considered as an indication, where the liability has still been capped, the NGP’s pre-defined stance vis-á-vis the apportionment of liability, which is typically a matter of party autonomy, may hamper collaborations with foreign players and reduce the customer base for launch operators in India.

Additionally, while the detailed guidelines on the proposed contours of the insurance policy are awaited, the GoI’s scrutiny of such policy further adds to the problems private players face in obtaining insurance on account of significantly high premiums and reluctance of insurers to insure spacecraft collisions on account of overcrowding in the low Earth orbit due to the recent surge in commercial space activities.

Keeping in mind this global picture, IN-SPACe and the GoI may consider consulting and engaging with private players in the industry, and appropriately bring out further guidelines to recalibrate and provide further nuance to the liability related regulatory aspects.

D. Dispute resolution

The standard terms and conditions of authorisations provide a waterfall mechanism for dispute resolution, including an IN-SPACe Committee intervention in the event a dispute is not amicably resolved through mediation.

As stated above, all the collaborations and joint ventures even with a non-Indian party would be governed by Indian law and consequently, for dispute resolution as well, the NGP prescribes a domestic arbitration at the Gujarat High Court Arbitration Centre, Ahmedabad along with courts at Ahmedabad having exclusive jurisdiction over any dispute.

Since, the space industry is inherently international in nature, foreign parties may be more amenable to neutral venues and arbitration centers. Foreign players have typically been wary of dispute resolution certainty, predictability and efficiency in the context of arbitrations and enforcement of arbitral awards in India. The Delhi High Court, which is considered to be a commercially pragmatic court in India, recently set aside an International Chamber of Commerce award in favour of Devas Multimedia (P) Ltd. on the grounds of violation of “public policy”. Given that the NGP takes away the parties’ autonomy in this context, it is likely to be looked upon unfavourably, especially by foreign players.

E. Coordination with other regulators

In the wide spectrum of space activities, it is not surprising that the establishment of end-to-end service networks is a multi-stakeholder process, with the DoS being the key. The nodal agency within DoS is IN-SPACe, and the NGP clarifies the role of IN-SPACe in this entire administrative rigmarole:

(i) As stated above, whether Indian or non-Indian, satellite operators will need IN-SPACe authorisation before provisioning its capacity for communication services in the Indian territory. However, the end-use service providers (to whom such satellite capacity is being provisioned to by way of lease, sale, etc.) need not obtain authorisation from IN-SPACe, and such end-use service providers will be subjected to scrutiny by other regulators such as the Department of Telecommunication (DoT), Ministry of Information and Broadcasting (MIB), etc. In order to streamline the process, Guidelines for Establishing Satellite-Based Communication Network(s) issued by the DoT (Satcom Guidelines) have already provided for the concept of an “in-principle clearance” that will be granted by an Inter-Ministerial Committee for Satellite Network Clearance (IMC-SNC) consisting of representatives of the DoT, Wireless Planning and Coordination Wing (WPC), IN-SPACe, etc.

(ii) A satellite operator who intends to make fresh International Telecommunications Union (ITU) filings for allotment and usage of orbital resources would need to approach IN-SPACe for a preliminary assessment and issuance of an “advisory note”. However, for initiating the ITU coordination process, and progressing the ITU filings by the GoI , the WPC of the DoT is the nodal agency, and accordingly only its prescribed guidelines will be applicable.

(iii) For Earth observation and remote sensing satellites, while IN-SPACe authorisation will be required for their establishment and operations, as well dissemination of primary data received, no separate IN-SPACe authorisation is required for disseminating value-added products (for instance, thematic maps, precision products, imagery mosaic products, merged products, etc.) which have been generated from the primary data received from such IN-SPACe authorised data disseminators. However, the NGP also makes it clear that applicable guidelines issued by the Department of Science and Technology on geospatial data and geospatial data services, including maps, will continue to remain applicable to all such entities.

(iii) Establishment and operation of satellite ground operations such as satellite control centres, mission control centres, etc., would require to be authorised by IN-SPACe, however, gateways/hubs, including those which are required for simply supporting the operations of the satellites/constellations, shall be governed by the respective regulators, and need not seek IN-SPACe authorisation.

F. Conclusion

The most striking feature of the NGP seems to be the upfront indigenisation of core space activities by stipulating that Indian managed and controlled entities would be the only authorised parties. Notably, the space sector has been and will continue to be a dual-purpose sector with immense potential for commercialisation, while at the same having deeper implications for national security and strategy. The general approach in the NGP is accordingly no different than the one adopted in the recently liberalised FDI policy where stringent thresholds have been prescribed for activities with potential dual usage i.e. in both commercial space and defence sectors.

That said, the NGP does allow a passage to non-Indian entities provided the primary applicant continues to be an Indian entity and hence ensuring greater scope of collaboration with existing Indian space players to further the “Atmanirbhar Bharat” vision. This is imperative, given the space sector is a capital-intensive domain and Indian space startups have thus far faced challenges to raise funds on account of high cost of raising capital, long gestation period of investment and difficulty in demonstrating a tangible return of investment. It is only very recently, when the GoI first expressed its interest in 2020 by giving private players a more transformative role which began eliciting meaningful interest from private equity and strategic firms. Pixxel raised an investment of US $36 million in June 2023 from investors including Alphabet Inc. and Accenture PLC.⁹ Skyroot Aerospace raised US $51 million in a series B funding round led by Singapore-based investment firm, Government of Singapore Investment Corporation (GIC) in 2022.¹⁰

Another feature of the NGP is the detailed and clarified norms pertaining to segments with significant commercial growth potential such as space communication and Earth observation. The growing number of internet users, increasing penetration of televisions, and rising adoption of the navigation system in the country are propelling increasing demand for satellite-based services.

Synergistic propositions have been made in this regard with alignment on national geospatial policy and remote sensing data policy. With the global value of Earth observation data being estimated at US $266 billion in 2023 and projected value being US $700 billion in 2030¹¹, there is ample opportunity for several players in the Indian market to tap into this lucrative segment. Presently, it seems that the Indian Earth observation and remote sensing data has been mainly dominated by public players such as Indian Space Research Organisation, which has established the “Navigation with Indian Constellation” (NavIC) for the navigation and positioning requirements of India, with end-user applications such as Google Maps obtaining their data from NavIC. That said, with demand for such Earth observation and remote sensing data surging due to increasing end uses such as navigation, climate services, disaster management, defence, navigation, agriculture, urban development, etc., private players such as Pixxel and GalaxEye are also making headway in this segment.

The Indian satellite communication market was valued at US $2.23 billion in 2023 and is projected to grow manifold to US $ 25 billion by 2028. The primary value creation lies in end-user service such as telecommunications, broadcasting and other internet services. While Eutelsat OneWeb India and Orbit Connect (a joint venture between Reliance Jio and Luxembourg based SES) have already obtained an authorisation from IN-SPACe to provide commercial satellite broadband services,  Elon Musk’s Starlink and Jeff Bezos’ Amazon are reportedly in the process of receiving similar approvals Indian regulators. Further, all of these players will be in the pipeline to also be granted the required spectrum allocation by the Indian government, which will presumably happen once the detailed guidelines on such spectrum allocation are released later this year. There are yet a few untapped markets such as logistics, OTT, Internet of Things, etc. which may soon follow suit of gaining service from the satellite communications network.

While we find the current reforms to be meaningful and a positive step forward in unlocking the potential of the space communication activity in India, the industry also eagerly awaits a formal framework for allocation of frequency and space spectrum.

Further, as technology matures and other areas of leveraging in situ usage of space such as space tourism, space mining and space–based manufacturing come to the forefront, the regulatory framework would have to be further bolstered and strengthened to create a sustainable and progressive space sector in India.