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Published : May 27, 2016 | Author : Deepti Bajpai
Category : Miscellaneous | Total Views : 1177 | Rating :

  
Deepti Bajpai
Currently pursuing, BA, LLB (Hons), IV Year, Dr. Ram Manohar Lohiya National Law University, Lucknow
 

The Geospatial Information Regulation Bill, 2016 (“Bill”)

The Government of India has drafted The Geospatial Information Regulation Bill, 2016 to regulate the acquisition, dissemination, publication and distribution of geospatial information of India which is likely to affect the security, sovereignty and integrity of India. The Bill extends to whole of India and is also applicable on citizens outside India, persons on ships and aircraft, registered in India and persons in service of Government, both in India and abroad.

Wide ambit of “Geospatial Information”

The Bill defines geospatial information to mean geospatial imagery or data acquired through space or aerial platforms such as satellite, aircrafts, airships, balloons, unmanned aerial vehicles including value addition; or graphical or digital data depicting natural or man-made physical features, phenomenon or boundaries of the earth or any information related thereto including surveys, charts, maps, terrestrial photos referenced to a co-ordinate system and having attributes. According to the bill a person is “an individual, a company, a firm, a trust, an association of persons or a body of individuals, whether incorporated or not, every artificial juridical person, not falling within any of the preceding sub-clauses, and any agency, office or branch owned or controlled by any of the above persons mentioned in the preceding sub-clauses.”

The definition of geospatial information is so wide that it includes everything and from satellite imagery, to atlases, books, magazines, car navigation systems; GPS enabled devices like cameras, smart phones and tablets sending / distributing data. It includes almost everyone as the definition of persons covers acts done by an individual, a company, a firm, a trust, an association of persons or a body of individuals, etc. Thus, the ambit of licensing of all these items for ‘persons’ is very wide. Also it may cover GPS services given by car manufacturers, Google maps, smart phones, etc. Not only this journals and foreign geospatial magazines like National Geographic or IEEE Transactions in Geosciences, books on maps, etc may also be covered. It may require a subscriber (as he has acquired such information) and publishers and editors also to get a license as they are disseminating information. It may also hinder researchers who wish to publish information or possess research on geospatial information. The Bill may also require licensing of schemes like Smart City, Clean Ganga, etc. The personnel working on these projects will require licenses and project reports which will have to be vetted by the Authority. Even scientists in the private businesses and in industry working on these projects now have to carefully vet each application. Even entities like Google Maps, Ola, Uber and other e-commerce websites which use maps may require licenses. The proposed bill, thus makes "every person" associated with the business offering map service an accessory to a crime in case of any violation, intended or unintended. However, it provides certain exemptions. The exemption to government entities from the provisions is a concern.

Extra- territorial jurisdiction

The Bill has also given extra-territorial applicability in terms of jurisdiction. It is applicable to any person even situated abroad. Thus, the powers and the jurisdiction of the Bill are very wide and may not be feasible. Foreign entities may not be willing to be subject to the jurisdiction of authorities under the Act, hindering business and trade. It may act as a deterrent to new businesses who wish to set up a place of business in India or disseminate information related to geospatial information even when the place of business is in a foreign country.

Multiplicity of Authorities

Bill provides for an Apex Committee that shall oversee and administer the implementation of the Bill in accordance with the prevailing policies of the Government such as Remote Sensing Data policy, Map Policy and such other policies related to the objective of the Bill. A Security Vetting Authority (Authority) shall be set-up to carryout security vetting of the geospatial information of India, provide permission and licenses in a time bound manner and as per the regulations framed by the Apex Committee. An Enforcement Authority shall be set-up to monitor compliance of the terms and conditions of the licenses granted. The Enforcement Authority may confiscate all the computers resources and publications used for violation of the Act, impose such financial penalty and suspend or revoke licenses on receipt of any complaint. The Government shall also constitute an Appellate Authority to adjudicate the appeals against the decisions of the Security Vetting Authority or the Enforcement Authority. Any person aggrieved by any decision or order of the Appellate Authority may file an appeal to the High Court.

Thus, there are four authorities under the Bill:
1. Apex Committee,
2. Security Vetting Authority,
3. Enforcement Authority and
4. Appellate Authority.

As discussed above, the Apex Committee will make regulations, decide on fees and oversee the entire process of implementation. The Committee may delegate responsibilities but not the regulation making power. The Authority will be a three member committee headed by a bureaucrat, a technical expert and a security expert and they can delegate its responsibilities except the power to grant license. Both the Committee and the Authority shall be burdened with work given the wide ambit and scope of the definition of geospatial data and persons. The appellate authorities may also be burdened with work as many people will approach the forum against refusal or revoking of licenses by the Vetting authorities or enforcement authorities. Also, a number of authorities will create confusion and may also result in a tussle for power among the authorities themselves.

Licensing Raj

Any person who wants to acquire, disseminate, publish or distribute any geospatial information of India has to make an application to the Authority for security vetting of such geospatial information and license thereof to acquire, disseminate, publish or distribute such geospatial information in any electronic or physical form. Permission is also required for information that has already been acquired before the commencement of the Bill and also for distributing the information in places outside India. The license can be revoked if the licensee fails to comply with the terms and conditions of the same.

The licensee shall be supplied with security vetted information within a specified time and he shall display the insignia of the clearance by the Authority while distributing information. He shall indemnify the Authority for any consequential loss or damages whatsoever that might be caused to any person or agency in India or abroad, due to the use or supply of security vetted geospatial information. There are no rules, regulations or provisions which give criteria for providing or refusing a license. This may lead to confusion. There might be arbitrariness in providing and revoking licenses. Also, there are no checks to overlook the process by the Authority and hence, this may further lead to arbitrary decisions.

Existing Data Licensing

It also requires permission for using already acquired data. Every person who has already acquired any geospatial imagery or data of any part of India either through space or aerial platforms such as satellite, aircrafts, airships, balloons, unmanned aerial vehicles or terrestrial vehicles or any other manner including value addition prior to coming of effect of the Bill, shall within one year from the commencement of the Act, make an application to the Authority for retaining such geospatial information and grant of license. The Bill also provides that an Authority shall, within three months from the date of receipt of such application either grant a license with such conditions as may be specified thereon or reject the application.

High Penalties

The Bill bars depiction, dissemination, etc of any wrong or false topographic information of India including international boundaries through internet platforms or online services or in any electronic or physical form. It provides forpenalties on illegal acquisition, illegal dissemination, publication or distribution, wrong depiction of map of India, violation of terms and conditions of a license and use of geospatial information of India outside India without permission. A penalty imposed under the Bill, if fail in lieu of penalty, shall be recovered as an arrear of land revenue and the license shall be suspended till the penalty is paid. The Bill imposes a penalty ranging from rupees One Crore to Rupees hundred Crores for the illegal acquisition of the geospatial information of India and also for illegal dissemination, publication and distribution of the geospatial information of India. The Bill imposes a penalty of Rupees Ten lakh to Rupees Hundred crores which shall be applied in any instance of wrongful depiction of India’s map or for the violation for the terms of the license. These may not be in sync with the way technology and the internet is growing. Such high penalties may further hinder functioning of business entities especially the home grown indigenous companies which use the information as they will be the one’s most affected by this decision and not the major companies like Google.. Even entities registering small profits may become subject to such high penalties and hence, the huge amount of fines is not feasible.

Handling of data if license refused/ revoked:

The Bill also provides that a person shall not possess any geospatial information of India, after rejection of the application by the Authority. The Bill does not provide how the disposal of information shall take place if the license is rejected and if the information needs to be given to any Authority for safe disposal. It does not even provide for destruction of physical or digital data.

Conflict with Information Technology Laws

The Bill is in contravention of the provisions of the Information Technology Act 2000(“IT Act”), because both it and the earlier IT Act deal with not just physical but also digital data. Furthermore, the IT Act is a special law which deals with digital information and cleary states that in case of conflict between it and any other law, then it will prevail. However, the draft Bill has also been awarded a special status under Section 33, which states that in the situation of a conflict its provisions shall be considered over and above any other law in effect. This results in the creation of a loophole as the jurisdiction regarding the application of which of the two laws in the case of a conflict hasn’t been clearly established.

Conclusion
The scope and ambit of the Bill is very wide. It essentially requires almost all industries to take a license for sending, distributing and possessing information. In the light of the above-mentioned problems, Bill needs amended so as to reduce the scope of the Bill. It will consequently affect the small businesses and start-ups who will require to adhere to the provisions in the Bill.

In its attempt to cover all bases it has been made so broad based and encompasses so many elements that rather than promoting the development of geospatial information, it may actually impede the progress of work on geospatial systems and therefore impact key Government programmes and projects. The Bill does not take into account the fact that with the advent of the Cloud Computing, Data as a Service, Software as a Service and Platform as a Service there is no need for ‘persons’ to possess data in its actual forms. They can just access data, do their work and retain only the final results. This Bill does not, in fact cannot, even begin to comprehend the paradigm shift in geospatial technologies which makes it a non-starter.India does need a Bill to curb the spreading of geospatial information, on the contrary it needs an encouraging Act that makes for faster and better implementation of programmes, not a regressive and punitive Act as the proposed one.

End notes:
[1]http://mha.nic.in/sites/upload_files/mha/files/GeospatialBill_05052016_eve.pdf( last accessed on 11th May, 2016)
[2] Section 2(e), The Geospatial Information Regulation Bill, 2016
[3] http://economictimes.indiatimes.com/tech/internet/geospatial-bill-will-impact-tech-giants-like-google-uber-as-well-as-indians-using-gps-enabled-smartphones/articleshow/52214514.cms
[4]Section 8, The Geospatial Information Regulation Bill, 2016
[5]Section 7, The Geospatial Information Regulation Bill, 2016
[6]Section 23, The Geospatial Information Regulation Bill, 2016
[7]Section 9, The Geospatial Information Regulation Bill, 2016
[8]Section 12, The Geospatial Information Regulation Bill, 2016
[9]Section 13, The Geospatial Information Regulation Bill, 2016
[10]Section 15, The Geospatial Information Regulation Bill, 2016
[11]Section 16, The Geospatial Information Regulation Bill, 2016

 

 




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