The CONFLICT of Artificial Intelligence with Indian Constitutionalism: A Normative Critique

Updated: Jun 21

Samridhi Talwar.

University School of Law and Legal Studies, GGSIPU.

Introduction

Artificial Intelligence has transformed its footing from being science fiction to mushrooming to an extent where it has become a part and parcel of our lives. This technology has paved its way to India and the government is embracing AI in an unprecedented manner. Artificial Intelligence refers to the proficiency of a machine to replicate and perform functions of prudent human behaviour. The core reason for the development of AI was the dire need for the automation of tasks that were performed by the human workforce. This technology has resulted in better conduction of critical and complex chores more efficiently and effectively with a lesser room of error.


In this article, the author seeks to discuss the scope of Artificial Intelligence with respect to certain aspects of the Constitution of India. The article will also highlight the application of AI in India and its impact on constitutional values.

Applying AI in India

Artificial Intelligence has the potential to contribute approximately 15.7 trillion dollars to the world economy by the next decade.[1] Today, we are on the verge of a technological revolution that has already started impacting our lives and will eventually completely metamorphose the way we live.

The Government of India has had a proactive attitude in making endeavours to adopt, develop, and promote AI in India. This attitude is visible with the numerous steps taken by the government over the years. India’s tryst with Artificial Intelligence began in 2017 with setting up a task force with the aim of exhibiting the potential of AI in multifarious sectors, its importance in the country, and the hurdles that India faces in implementing AI.[2] In 2018, considerable funds were allocated by the government for research and training in the technologies in vogue, including AI.[3] Moreover, four committees were also established by the Ministry of Electronics and Information Technology. These committees were formulated to devise a roadmap for an Artificial Intelligence program.[4] NITI Aayog has also begun work on a national strategy with regards to Artificial Intelligence - #AIFORALL to duly harness this technology.[5] Recently, in 2020, an Artificial Intelligence-explicit computer framework i.e. AIRAWAT was recommended by the NITI Aayog. This framework is intended at satisfying the processing requirements of start-ups, innovation hubs, research scholars, and students.[6]

Despite the efforts from the Government, the private sector has a head start in using and implementing AI. Private sector entities such as Netflix, Flipkart, Amazon, MakeMyTrip, Google, etc have already been using the weapon of Artificial Intelligence to learn the online behaviour of the consumers to make smart suggestions. However, this is just the tip of the iceberg; the private sector has been harnessing the power of AI in kaleidoscopic ways including the field of healthcare, law, hospitality, automobiles, gadgets, etc.

Artificial Intelligence and the Constitution

Artificial Intelligence has reached zero hours in the technological fruition in India, as our reliance on AI for decision making is growing by the second. However, any decisions on the implementation of AI have to be conscious of the multifarious aspects of this technology, which will have a profound impact on various constitutional issues such as privacy, freedom of speech, ethical conduct, etc.

As India is becoming all-embracing for Artificial Intelligence, this technological weapon raises several questions about its harmony with the Constitution, or the lack thereof.

The first issue that arises is that of the legal personality of AI. Legal personality is an attribute of individual autonomy under Article 21 of the Constitution of India.[7] Though legal personality isn’t exclusive to humans; a piece of technology has not been granted this status in India. Moreover, a precedent for granting AI legal personality, roots from the Companies Act where corporates have been granted the status of a separate legal entity.[8] However, the differentiating factor for AI and corporates is that corporate entities, though independent, are held liable by virtue of their stakeholder, in contrast to AI which is actually independent.

The issue of granting legal personality to Artificial Intelligence rests on a basic question i.e. can AI can be subjected to legal duties and be granted legal rights.[9] In case AI is not granted legal personality, another stumbling block in its use is that it cannot be held individually liable for its misdoings. A legal person is always penalized for his/her wrongdoings but the same cannot be said for a bot who merely can act and react based on the environmental stimulus sans the emotional qualities present in humans.[10] This issue can be a cause of problems as self-driving cars such as Tesla, voice assistants like Siri and Alexa, fully automated machines, chatbots such as Lyft and A.L.I.C.E, etc are around the corner. The culpability arising from the misdoings of this technological tool is yet not adequately determined.

The next constitutional conflict with AI revolves around the right to privacy under Article 21 of the Constitution of India.[11] The imminence of Artificial Intelligence, with its data-driven multifaceted realms, push the buttons on the burning concerns for privacy and security of data. The models of Artificial Intelligence, their application, and solutions hinge on the generation, accumulation, and processing of mammoth quantities of data and societal behaviour. However, when the accumulation and processing of this data are bereft of due consent or suffers from selection bias which subsequently leads to the hazards of discrimination and undue profiling, it leads to an infringement of the right to privacy under Article 21. Additionally, Artificial Intelligence is ambiguous and non-transparent. These features are forcing privacy to walk the plank. [12] For instance, the Aarogya Setu app, China’s social scoring system, the case of Cambridge Atlantica in US elections, and the collection and dissemination of personal data by Facebook, Google, Microsoft, etc. have impacted the privacy of citizens and users of the AI software.[13]

The concerns of AI around privacy rest on the fact the organization's cache elephantine magnitude of data from consumers and harness it for illicit and inappropriate motives, merely to garner sapience on these consumers.[14] Moreover, these data hoarding organizations have been stockpiling and selling the data thus creating an unfair competitive advantage for themselves in the market. To combat this issue, establishing a legal data protection framework is imperative. The Justice B.N. Srikrishna Committee report had released a draft Personal Data Protection Bill in 2018 which was aimed at creating a cohesive data protection regime for India.[15] The dire need for privacy and thereby a data protection bill was also discussed in the landmark Puttaswamy judgment.[16]

Another issue around the AI is about the freedom of speech and expression. Freedom of speech and expression is a fundamental right enshrined under Article 19(1)(a) of the Constitution of India.[17] Artificial Intelligence has an abject brunt on the freedom of speech and expression due to our mushrooming dependence on AI software and applications.[18] There is a nexus between freedom of speech and expression and technology such as Artificial Intelligence. This was also recognized in the case of Shreya Singhal v Union of India[19] where the court declared Section 66A of the IT Act[20] unconstitutional because this provision was vague, offensive and had a chilling effect on freedom of speech. This judgment re-established the imperativeness of informed citizens, culture of dialogue and democracy while emphasizing on the reasonable restrictions to Article 19(1)(a) in the context of technology. The plans of the government regarding the mass implementation of AI in India cannot be analysed without this context.

A hazardous trend has been emerging wherein governments and corporations have started using AI as a cure-all medicine for grave problems such as fake news, hate speech, violence, and other forms of extremism.[21] However, this is marred with the incompetence of a machine to understand human emotions and tones thus resulting in undue censorship and blocking of justifiable notions of people. Moreover, AI surveillance has a chilling effect on the freedom of speech and expression as it blears the distinction between private and public. For instance, YouTube removes several videos that might be the sole evidence of horrific human rights violations and crimes despite the videos falling in the exception of having pertinent educational or documentary value.[22] Similarly, Facebook, Google, and Netflix have AI-powered algorithms that influence the content consumption of the consumer thereby adversely affecting media pluralism and diversity of opinions.[23] Artificial Intelligence, when used for regulation and censorship of content even with the use of sentimental analysis tools, is not well accepted by the citizens of India in the private or governmental actions.[24]

Artificial Intelligence is immersed with the potential to transform India at the global level, by adding to the economy and bringing never witnessed before efficiency, accuracy, and speed. However, there is considerable friction between this contemporary technology and the Constitution of India. To ethically and justifiably implement this technology in India, it must be balanced with the provisions of the Constitution.

Conclusions

Artificial Intelligence has emanated as the cynosure of development in India. A blooming AI industry has already entered the country and the government is taking zealous initiatives. It is cardinal at this point, to consider this burgeoning industry with the constitutional provisions of India. The analysis of the conflicts AI faces with the constitution as done by the author, highlights that AI cannot be evaluated as secluded mathematical or scientific algorithms; or as propitious tools due to their effectiveness and efficiency; or even as a neutral technology. Instead, this technological weapon is a perplexing social system that India cannot afford to merely consider on the grounds of efficiency, effectiveness, and accuracy and must be balanced with the Constitutional provisions.

References

[1] AI, Machine Learning & Big Data Laws and Regulations | India | GLI, (Jun 12, 2020, 3:50 PM) https://www.globallegalinsights.com/practice-areas/ai-machine-learning-and-big-data-laws-and-regulations/india. [2] Ibid. [3] Marda Vidushi, Artificial Intelligence Policy in India: A framework for engaging the limits of data-driven decision-making, SSRN, Philosophical Transactions A: Mathematical, Physical and Engineering Sciences (2018). [4] Agarwal S, IT Ministry has formed four committees for Artificial Intelligence: Ravi Shankar Prasad, THE ECONOMIC TIMES, (June 12, 2020, 4:06 PM), https://economictimes.indiatimes.com/news/economy/policy/it-ministry-forms-four-committ ees-for-artificial-intelligence-ravi-shankar-prasad/articleshow/62853767.cms. [5] Ibid. [6] National Strategy for Artificial Intelligence #AIFORALL, NITI AAYOG. [7] INDIAN CONST. art 21. [8] Companies Act, 2013. [9] Tavawalla Huzefa, India: Can Artifcial Intelligence Be Given Legal Rights And Duties?, MONDAQ, (June 12, 2020, 4:34 PM), https://www.mondaq.com/india/new-technology/712308/can-artificial-intelligence-be-given-legal-rights-and-duties. [10] Indian Strategy for AI and Law, 2020, INDIAN SOCIETY OF ARTIFICIAL INTELLIGENCE & LAW, (June 12, 2020, 4:17 PM), https://www.isail.in/strategy. [11] INDIAN CONST. art 21. [12] Ibid. [13] Ibid. [14] Ibid. [15] The Personal Data Protection Bill, 2018. [16] K.S. Puttaswamy v. Union of India, (2014) 6 SCC 433. [17] INDIAN CONST. art 19, § 1, cl. a. [18] Burrell, J. How the machine ‘thinks’: Understanding opacity in machine learning algorithms. BIG DATA & SOCIETY, January - June 2016, pp. 1-12 (2018) [19] Shreya Singhal v. Union of India, AIR 2015 SC 1523. [20] The Information and Technology Act, 2000 § 66A. [21] Marda, V. 2018 Facebook Congressional Testimony: “AI tools” are not the panacea. ARTICLE 19, (June 12, 2020, 4:23 PM), https://www.article19.org/resources/facebook-congressional-testimony-ai-tools-not-panacea/. [22] Kate O’Flaherty, YouTube keeps deleting evidence of Syrian chemical weapon attacks, WIRED, (June 12, 2020, 4:20 PM), http://www.wired.co.uk/article/ chemical-weapons-in-syria-youtube-algorithm-delete-video. [23] Human Rights in the Age of Artificial Intelligence, ACCESS NOW, (June 12, 2020, 4:37 PM), https://www.accessnow.org/cms/assets/uploads/2018/11/AI-and-Human-Rights.pdf. [24] Ibid.

 

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