The Proposed Legislation Constituting the National Spatial Data Infrastructure Legal Issues – Concept Note
Rahul Matthan, Trigal, Bangalore Email : rahul.matthan@trilegal.com It has been decided that the National Spatial Data Infrastructure (“NSDI”) be established under a legislation that will set out essential operational features of the NSDI including its composition and administrative structure, decision making powers, and the broad policy issues on which the NSDI will be entitled to make rules and regulations, etc. This Concept Note on Legal Issues seeks to discuss and address various legal issues arising out of and pertaining to the preparation of the legislation for the establishment of the NSDI. Section I-General Objects The stated objective of the NSDI is the creation of a national infrastructure for the generation, availability of and access to organised spatial data to be used at community, local, state, regional and national levels to meet the requirements of spatial data for sustainable development. It is proposed that the NSDI be established as a statutory body, empowered to carry out various functions necessary in order to achieve the broad objectives stated above. Accordingly, the NSDI will be established through a legislation and will have adequate powers and authority to achieve the following
Feasibility The establishment of the NSDI could take place either through the passage of a legislation or through an executive order of the central government. In the event the NSDI was to be established through an executive order, the relevant ministry or (where the subject matter of the executive order involves the inputs of more than one ministry) ministries, that is/are competent to issue such executive order, will create the proposed body through the administrative act of issuing an appropriate order constituting the body. However, any administrative or executive authority so constituted will be subject to dissolution through a similar process. In the context of the NSDI, where vast quantities of data are proposed to permanently stored in a repository, it is advisable that the authority with control over such data, be relatively permanent in nature and not subject to dissolution at the executive whim. Accordingly it is advisable that the NSDI be established through a legislation. A legislation is introduced to parliament in the form of a Bill. This Bill is usually prepared by the concerned ministry or by a specially appointed parliamentary committee. Any Bill which is not a Money Bill may be introduced into either houses of parliament. Once the Bill is passed in the house in which it is introduced, it is then produced before the other house. If both houses agree, the Bill is presented to the President of India for his assent. Once Presidential assent has been received, the Bill is notified in the Official Gazette. The Bill becomes a law on the date on which it is notified in the Official Gazette. 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
Decision making In Executive Commissions, it appears that the convention or aspiration is for decisions to be taken unanimously. At the same time, in the event that unanimity is not achieved, the chairman of the commission is usually empowered with a veto right in relation to any decision (sometimes a veto right is also given to the member for finance). Consequently, the chairman’s opinion is final in the event of any difference of opinion. On the other hand, decisions in Legislative Commissions are usually taken by majority and only in the event of an equality of votes does the Chairman has a casting vote. Funding Legislative Commissions have well defined arrangements and structures in relation to the source and method of use of their finances. These could involve either the preparation of budget by such commission and the procurement of funds from the Central Government on the basis of the budget, an initial or yearly grant from the Central Government and/or the ability to generate funds independently to meet costs. Executive Commissions appear to have restricted financial powers. The financial powers of Executive Commissions are usually vested in the member for finance in these commissions. In exercising the financial powers given to him, the member for finance in such commission exercise the powers of the Central Government (i.e. the department of the Central Government in which such commission is located). Such commission does not function as an independent cost center or financial decision making body and does not have the ability to raise funds, even to meet costs. For a body such as the NSDI, it would be advisable that its financial powers be clearly set out as we believe that it is contemplated that it may operate on an independent cost recovery basis. Even if this is not the case at the beginning of the life of the organisation, the legislation or order setting it up should clearly specify that it will have such ability. In addition to being a body corporate, the independence of the NSDI would be furthered through a higher degree of financial independence. For example, the TRAI can be considered largely autonomous because it is allowed by the TRAI Act to establish a fund, which is used for its general functioning as opposed to its expenses being met from the Consolidated Fund of India. Additionally, the NSDI could be granted powers to borrow with the consent of the Central Government or in accordance with any general or special authority. Such power has been given to the NHAI. In fact, the NHAI is authorised to issue bonds, debentures or such other financial instruments for this purpose. These powers could be significant in ensuring that the NSDI has the independent ability to meet its expenses, to invest in setting up and extending the national spatial data infrastructure and in making such other investments as it is permitted. On the other hand, the CERC is required to meet its expenses through the Consolidated Fund of India and has no specific powers to generate its own revenues. It is required to prepare in each financial year a budget for the next financial year, showing estimated receipts and expenditure and to forward it to the Central Government for approval. Functions Executive Commissions appear to have a greater degree of advisory functions rather than having actual policy making and implementing authority. Also, though Legislative Commissions have well defined functions including, at times, limited judicial powers, their functions too may be curtailed by legislation. For example, though the TRAI has wide authority including dispute resolution, its recommendations are not binding on the implementation arm, i.e. the Department of Telecommunications. Here, we would recommend that for the NSDI, the enabling legislation provide it with the power to not only to frame policy but also a mechanism whereby such policy is implemented. One way of doing so would be by providing that the recommendations of the NSDI would be binding on the Government and the Government would only be entitled to ask the NSDI to reconsider its policy decisions. However, it is likely that the Government would retain the ability to override any policy decision on issue of public policy and security concerns. Funding The NSDI will require a clear mandate relating to finance issues. The options relating to financing and funding of statutory bodies are typically through either:
Further, the Central Government, which would initially fund the NSDI either through a grant or the Consolidated Fund of India, is likely to wish to retain control over the subsequent funding and financing matters of the NSDI. In this regard, the Central Government would ensure that the accounting issues of the NSDI be dealt with in accordance with its directions in consultation with the Comptroller and Auditor General of India (CAG). The Central Government is also likely to direct that the audit function of the NSDI be undertaken by the CAG and that the audit report be placed before Parliament. In respect of additional funding for the NSDI, the following options may be considered Consolidated Fund of India In this mechanism, the expenses of the NSDI including salaries would essentially be charged to the Consolidated Fund of India. Thereafter, the NSDI could be required to prepare, in each financial year, a budget for the next financial year, showing estimated receipts and expenditure and forward it to the Central Government. The budget could also provide for contingency and non-planned expenditure. We would assume that this mechanism would largely be regulated by the Central Government through the recommendations of the CAG and by audits. Establishment of a fund In this mechanism, the legislation establishing the NSDI could have enabling provisions for the creation and administration of a fund by the NSDI to meet its expenses such as salaries, allowances and other expenses in accordance with the objects and terms of the enabling legislation. The creation of the fund would help to ensure that the NSDI has greater discretion in financial matters and also the ability to handle the proceeds of such fund independently. The NSDI fund could be financed through sanctions of the Central Government, fees and charges received by the NSDI while discharging its functions or any other source such as revenue sharing arrangements, if possible. In the event that it is planned to make the NSDI financially self sufficient at some point in time, the Central Government is likely to have an indirect control as the audit of the NSDI would remain the responsibility of the CAG and the audit would be placed before Parliament. Borrowings Under this option, in addition to either of the above methods, the enabling legislation could empower the NSDI to raise funds through the issue of bonds or debt instruments. Also, the NSDI could be empowered to invest its funds in specified Government securities. We would assume that the Central Government would insist that investments and also issue of debt instruments and the use of their proceeds be in accordance with directions or guidelines issued by the Central Government. We would recommend that a financial review be carried out by a reputed financial consulting firm with the objective of identifying the financial implications of establishing, the subsequent functioning and the funding of the NSDI and also recommending the options available to the NSDI. Other Legal Issues Definitions The various terms utilized in the Bill will have to be specifically defined to avoid ambiguity. In this regard, definitions will be required in respect of terms such as Data, Information, Metadata, the NSDI Standard, etc. Dispute Resolution Since it is proposed that the NSDI Data be placed in the public domain, the NSDI Bill must address potential dispute and dispute resolution mechanisms. The NSDI could also be granted powers to resolve disputes concerning two or more data providers. This issue will require careful consideration because on the one hand, NSDI would have the ability to frame policy while on the other it may also interpret such policy in the event of the above dispute. Further, in such circumstances, dispute resolution through a court process may also not be an ideal solution given the technical and dynamic nature of the sector and the tedious and time consuming court process. Section II-Legislation Specific Composition The legislation should state specifically, the qualification requirements for as well as the process for the appointment of the members of the NSDI. Typically these members will be appointed by the Central Government either on its own or through a high powered recommending body that would include representation of the concerned ministries. Since there are several participating agencies, it may be relevant to state the number of appointees each agency is entitled to appoint. Typically, each agency should be allowed to appoint one member to the NSDI. It may be considered important to include provisions for the appointment of eminent personalities as members of the NSDI. It may be important to state that the NSDI will have certain ex-officio appointees. In this connection, the chairman of the NSDI could be the Minister, Science and Technology. In addition, the NSDI should have the power to create a sub-committee that would take decisions on operational matters. This sub-committee should comprise members of the NSDI Board but should not exceed 6-8 members in strength. Operational Issues The NSDI Bill will also specify various operational issues including the frequency with which the NSDI will meet, the requisite quorum for meetings of the NSDI, the manner in which the funds of the NSDI will be utilised, etc. Decision Making The participating agencies are likely to comprise different ministries and departments, statutory organisations and other bodies. Ideally, the decision making mechanism of the NSDI should be such that all participating agencies have an equal say in the functioning of the NSDI and the NSDI should in turn address all their concerns without deviating from its objectives. However, given the wide nature of the NSDI’s membership it is quite likely that on most policy decisions, unanimous decisions or decision making by consensus may not be attainable. Accordingly, we would recommend that a relatively democratic mechanism of decision making be adopted to ensure that the specific requirements of the participating agencies are addressed without marginalising the objectives of the NSDI. Further, we understand that the structure of the NSDI should follow the principles discussed in Section I(4)(B) of this Concept Note. We proceed therefore on the basis that there will be a two tier structure with the top tier being the primary decision making body, drawing its authority from either the legislative enactment or the (ideally one time) delegation of powers to it from the “plenary” or full membership of the NSDI. Consequently, we are setting out various options below which could be considered individually or in combination with one or more of the others. Here, reference to the “NSDI” is to the top tier body. Unanimous consent The NSDI can consider taking decisions on the principle of unanimous consent of all the members present at its meetings. However, unanimous consent may be difficult to achieve in sensitive matters where other concerned agencies have conflict of interests with those of the NSDI. Simple majority The simple majority rule may be adopted for the NSDI. Though this is often considered a safe mechanism for deciding policy matters, there could be instances where an equal say on some major policy issues may not be appropriate. For example, an issue which conflicts with the functioning of any participating agency or which is prejudicial to a participating agency, may require special consideration and not merely majority decision. Special majority The NSDI may consider adopting a special majority rule where for certain selected and defined issues, a majority of 2/3rd or 3/4th or unanimous consent would be required while for others a simple majority alone would be required. Majority with veto power The decisions of the NSDI can be based on the rule of simple majority amongst the participating agencies while at the same time the Chairman of the NSDI could be vested with a second or a casting vote in case of any equality of votes or as in the case of special majority in relation to certain specific issues. Majority with special veto rights One of the other options includes having a list of special matters which are considered sensitive. The decisions on these items will compulsorily require the assent of either one of the members so identified in the list. For example, an ISRO nominee member of the NSDI may be given a casting vote on certain specified matters that may have a significant bearing on ISRO’s primary functions. It is acknowledged that such sensitive matters may not always be easy to identify. Powers and Functions Given the scope of the objectives with which the NSDI would be established, the enabling legislation should give it a broad scope of authority. The NSDI should be independent in carrying out its functions, and should have sufficient power to issue rules, regulations and guidelines. For the NSDI to be independent the objectives and role of the NSDI must be clear and the legislation must be wide enough to encompass all areas in which the NSDI should have the ability and the power to regulate. Further, it will be necessary to ensure that the powers, particularly in relation to rule making ability, of the NSDI are flexible enough to take into account the likely dynamism of the sector particularly in relation to the use of technology and the role of the internet. In particular, care must be taken to ensure that mistakes made in previous technology driven legislation such as the Information Technology Act, 2000 are not repeated and that the NSDI legislation remains technology neutral. In order to achieve the above, the statement of objects and reasons in the legislation must also be detailed, open ended and inclusive in nature. Ideally, organisational independence would also require that the Central Government has the minimum required powers to issue directions to or otherwise interfere with the NSDI. However, it is likely and reasonable that the Central Government would wish to retain for itself the power to issue directions to the NSDI in “public interest” and for security reasons. The enabling legislation could specify wide powers for the NSDI, which could include the following general powers
Rules and Regulations With a view to ensuring its efficient functioning, it is recommended that the NSDI be granted powers to makes rules and regulations, not only on policy issues, but also its internal functioning and management. The NSDI Bill should specify the areas over which the NSDI would have rule making powers. A power could also be conferred on the NSDI to appoint committees and task forces to examine specific issues. Accounts, Audit and Reports The NSDI Bill should stipulate the accounting processes and other compliance requirements pertinent to the control of the funds of the NSDI. Accordingly, the NSDI will be required to maintain proper accounts and other relevant records and prepare an annual statement of accounts in such form as may be prescribed by the Central Government in consultation with the Comptroller and Auditor-General of India. The accounts of NSDI will typically be audited by the Comptroller and Auditor-General at such intervals as may be specified by him and any expenditure incurred in connection with such audit shall be payable by the Central Government in consultation with the Comptroller and Auditor-General. The accounts of NSDI, as certified by the Comptroller and Auditor-General or any other person appointed by him in this behalf, together with the audit report thereon shall be forwarded annually to the Central Government by the NSDI and the Central Government shall cause the audit report to be laid, as soon as may be after it is received, before each House of Parliament. The NSDI shall prepare, in such form and at such time in each financial year as may be prescribed, its budget for the next financial year, showing the estimated receipts and expenditure of the NSDI and forward the same to the Central Government. Liability Most legislation have specific provisions that protect officials and functionaries appointed under those legislations from the consequences of all acts undertaken by them in good faith. Similar language should be adopted for the NSDI Bill in order that all acts of the NSDI or any of its functionaries cannot be questioned in any court of law unless it can be proved that such actions are malicious or negligent. However, since the NSDI will act as a repository of data based upon which the public will base various commercial enterprises, there is a very real threat that any defect in the NSDI data could result in loss or damage to commercial enterprises. This could result in law suits, possibly in the form of a public interest litigation, filed against the NSDI or any bodies or authorities created or operating thereunder. In order to protect the NSDI from the consequences of such litigation, it is suggested that the following be incorporated in the NSDI Bill
The NSDI could also be granted powers to resolve disputes concerning any area of its activity. This issue will require careful consideration because a situation could arise where on the one hand, NSDI would have the ability to frame policy while on the other, it may also be required to interpret such policy in the event of a dispute. Further, in such circumstances, dispute resolution through a court process may also not be an ideal solution given the technical and dynamic nature of the sector along with the tedious and time consuming court process. Template Clauses Most Indian legislations have a number of standard clauses. Some of the appropriate template clauses have been listed here
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