Technology
The Proposed Legislation Constituting the National Spatial Data Infrastructure Legal Issues – Concept Note
Legislative Competence
The competence of the central government to legislate on the subjects proposed to be incorporated into the NSDI Bill derives from the provisions of the Seventh Schedule to the Constitution of India. List I of the Seventh Schedule, sets out the items upon which the central government is competent to legislate. However none of the Items on that list specifically cover the proposed legislation. Similarly, none of the items in the State List (List II) or the Concurrent List (List III) specifically relate to the issues proposed to be covered in the NSDI Bill. Item 97 of List I permits the Central Government to pass laws on residuary items not covered in the other lists. Since there is no specific mention in the Seventh Schedule about laws relating to the control and regulation of spatial or geographic data, the central government will derive its competence to pass the proposed NSDI Bill from Item 97 of List I of the Seventh Schedule.
Laws that are within the legislative competence of the central government to pass may still be struck down by the government if such laws are ultra vires the provisions of the Constitution in particular the fundamental rights and the basic structure of the Constitution. In the context of the proposed bill, care must therefore be taken to ensure that individual rights such as the right to freedom of information (including public access to information) must not be fettered otherwise than to the extent and in the manner set out in the Constitution. In the event any such restrictions are evident in the Bill it is likely that the Bill will be struck down as ultra vires the Constitution to the extent of the offending provisions.
Comparative Analysis
We have briefly examined the enactments that lead to the establishment of the Central Electricity Regulatory Commission (“CERC”), Telecom Regulatory Authority of India (“TRAI”), Insurance Regulatory and Development Authority (“IRDA”) and the National Highways Authority of India (“NHAI”) (collectively the “Legislative Commissions”). We have also reviewed the orders that led to the formation of the Telecom Commission and the Space Commission (collectively the “Executive Commissions”). In this section, we discuss certain issues that emerge from the above review which have an impact on the manner in which the NDSI is structured, its future powers and functions and the manner in which it could be funded.
Body Corporate
Legislative Commissions have a legal personality that distinguishes them from other types of bodies. This distinct legal personality gives such bodies a number of rights and powers, including the ability and authority to enter into contracts, consummate property transactions, enjoy and enforce ownership rights and perpetual succession in relation to their existence. Such bodies continue to exist until such time that they are dissolved through a specific, legislative process laid
down in an existing act (akin to the winding up of a company as set out in the Companies Act, 1956) or through a further enactment specifically to bring its existence to an end.
Executive Commissions, on the other hand, do not appear to have a distinct legal personality and do not enjoy the rights that flow from this. Further, these bodies can cease to exist through executive action alone, without the need to follow a legislative process. Also, the scope of their authority can also be altered by such executive action.
If it is the intention that the NSDI be established as a permanent repository of spatial data, it is important that it cannot be dissolved through the simple process of an executive order. Accordingly, in the event that it is considered important to bestow the NSDI with a legal personality such that it can enjoy the rights mentioned above, it would be preferable for the NSDI be set up as a body corporate in order to have a legal identity distinct from its constituent departments, organisations and other bodies. This would go a long way towards ensuring that the NSDI is constituted as and remains an independent body governed by its enabling statute.
Constitution
The constitution of such commissions is specified in the respective acts and executive orders which establish them. Both Executive Commissions and Legislative Commissions may and generally do have ex-officio as well as other members nominated by the Central Government. From our review it appears that Legislative Commissions set out with greater clarity the manner in which its members (and other office bearers) are selected. Specific qualification requirements for different posts are provided in the respective acts and members of Legislative Commissions are appointed by the Central Government either on its own or through a high powered recommending body as for the CERC.
We understand that the following are some of the important features pertinent to the constitution of the NSDI body
- it should have a two tier organisational structure, consisting of a plenary body comprising all participating agencies and a smaller, top tier body empowered to make decisions on behalf of the NSDI as a whole on operational issues;
- the top tier body will comprise of members nominated by the Central Government from the participating agencies as well as a few eminent personalities from relevant fields;
- it would be preferable for the top tier body of the NSDI to remain relatively lean (not more than 5-8 members), such that it is able to take effective and quick decisions.
Given the number of likely participating agencies, it would be preferable for the enabling act or order to clearly set out the process for the appointment of members of the NSDI with provisions for appointment of eminent personalities. This would clearly be easier and more certain through a legislative enactment than an executive order. One way of achieving this would be by specifying that the members of the NSDI would be appointed by the Central Government based on the recommendations of the concerned Ministries and having due regard to appropriate representation of all concerned agencies. Further, we would recommend that the enabling act specifies the exact number of members that a Ministry would be entitled to nominate.