This post has been authored by Jhalak M. Kakkar and Nidhi Singh
In July 2020, the NITI Aayog released a “Working Document: Towards Responsible AI for All” (“NITI Working Document/Working Document”). The Working Document was initially prepared for an expert consultation held on 21 July 2020. It was later released for comments by stakeholders on the development of a ‘Responsible AI’ policy in India. CCG responded with comments to the Working Document, and our analysis can be accessed here.
The Working Document highlights the potential of Artificial Intelligence (“AI”) in the Indian context. It attempts to identify the challenges that will be faced in the adoption of AI and makes some recommendations on how to address these challenges. The Working Document emphasises the economic potential of the adoption of AI in boosting India’s annual growth rate, its potential for use in the social sector (‘AI for All’) and the potential for India to export relevant social sector products to other emerging economies (‘AI Garage’).
However, this is not the first time that the NITI Aayog has discussed the large-scale adoption of AI in India. In 2018, the NITI Aayog released a discussion paper on the “National Strategy for Artificial Intelligence” (“National Strategy”). Building upon the National Strategy, the Working Document attempts to delineate ‘Principles for Responsible AI’ and identify relevant policy and governance recommendations.
Any framework for the regulation of AI systems needs to be based on clear principles. The ‘Principles for Responsible AI’ identified by the Working Document include the principles of safety and reliability, equality, inclusivity and non-discrimination, privacy and security, transparency, accountability, and the protection and reinforcement of positive human values. While the NITI Working Document introduces these principles, it does not go into any substantive details on the regulatory approach that India should adopt and what the adoption of these principles into India’s regulatory framework would entail.
In a series of posts, we will discuss the legal and regulatory implications of the proposed Working Document and more broadly discuss the regulatory approach India should adopt to AI and the principles India should embed in it. In this first post, we map out key considerations that should be kept in mind in order to develop a comprehensive regulatory regime to govern the adoption and deployment of AI systems in India. Subsequent posts will discuss the various ‘Principles for Responsible AI’, their constituent elements and how we should think of incorporating them into the Indian regulatory framework.
Approach to building an AI regulatory framework
While the adoption of AI has several benefits, there are several potential harms and unintended risks if the technology is not assessed adequately for its alignment with India’s constitutional principles and its impact on the safety of individuals. Depending upon the nature and scope of the deployment of an AI system, its potential risks can include the discriminatory impact on vulnerable and marginalised communities, and material harms such as the negative impact on the health and safety of individuals. In the case of deployments by the State, risks include violation of the fundamental rights to equality, privacy, freedom of assembly and association, and freedom of speech and expression.
We highlight some of the regulatory considerations that should be considered below:
Anchoring AI regulatory principles within the constitutional framework of India
The use of AI systems has raised concerns about their potential to violate multiple rights protected under the Indian Constitution such as the right against discrimination, the right to privacy, the right to freedom of speech and expression, the right to assemble peaceably and the right to freedom of association. Any regulatory framework put in place to govern the adoption and deployment of AI technology in India will have to be in consonance with its constitutional framework. While the NITI Working Document does refer to the idea of the prevailing morality of India and its relation to constitutional morality, it does not comprehensively address the idea of framing AI principles in compliance with India’s constitutional principles.
For instance, the government is seeking to acquire facial surveillance technology, and the National Strategy discusses the use of AI-powered surveillance applications by the government to predict crowd behaviour and for crowd management. The use of AI powered surveillance systems such as these needs to be balanced with their impact on an individual’s right to freedom of speech and expression, privacy and equality. Operational challenges surrounding accuracy and fairness in these systems raise further concerns. Considering the risks posed to the privacy of individuals, the deployment of these systems by the government, if at all, should only be done in specific contexts for a particular purpose and in compliance with the principles laid down by the Supreme Court in the Puttaswamy case.
In the context of AI’s potential to exacerbate discrimination, it would be relevant to discuss the State’s use of AI systems for the sentencing of criminals and assessing recidivism. AI systems are trained on existing datasets. These datasets tend to contain historically biased, unequal and discriminatory data. We have to be cognizant of the propensity for historical bias’ and discrimination getting imported into AI systems and their decision making. This could further reinforce and exacerbate the existing discrimination in the criminal justice system towards marginalised and vulnerable communities, and result in a potential violation of their fundamental rights.
The National Strategy acknowledges the presence of such biases and proposes a technical approach to reduce bias. While such attempts are appreciable in their efforts to rectify the situation and yield fairer outcomes, such an approach disregards the fact that these datasets are biased because they arise from a biased, unequal and discriminatory world. As we seek to build effective regulation to govern the use and deployment of AI systems, we have to remember that these are socio-technical systems that reflect the world around us and embed the biases, inequality and discrimination inherent in the Indian society. We have to keep this broader Indian social context in mind as we design AI systems and create regulatory frameworks to govern their deployment.
While, the Working Document introduces the principles for responsible AI such as equality, inclusivity and non-discrimination, and privacy and security, there needs to be substantive discussion around incorporating these principles into India’s regulatory framework in consonance with constitutional guaranteed rights.
Regulatory Challenges in the adoption of AI in India
As India designs a regulatory framework to govern the adoption and deployment of AI systems, it is important that we keep the following in focus:
- Heightened threshold of responsibility for government or public sector deployment of AI systems
The EU is considering adopting a risk-based approach for regulation of AI, with heavier regulation for high-risk AI systems. The extent of risk factors such as safety, consumer rights and fundamental rights are assessed by looking at the sector of deployment and the intended use of the AI system. Similarly, India must consider the adoption of a higher regulatory threshold for the use of AI by at least government institutions, given their potential for impacting citizen’s rights. Government use of AI systems that have the potential of severely impacting citizens’ fundamental rights include the use of AI in the disbursal of government benefits, surveillance, law enforcement and judicial sentencing.
- Need for overarching principles based AI regulatory framework
Different sectoral regulators are currently evolving regulations to address the specific challenges posed by AI in their sector. While it is vital to harness the domain expertise of a sectoral regulator and encourage the development of sector-specific AI regulations, such piecemeal development of AI principles can lead to fragmentation in the overall approach to regulating AI in India. Therefore, to ensure uniformity in the approach to regulating AI systems across sectors, it is crucial to put in place a horizontal overarching principles-based framework.
- Adaptation of sectoral regulation to effectively regulate AI
In addition to an overarching regulatory framework which forms the basis for the regulation of AI, it is equally important to envisage how this framework would work with horizontal or sector-specific laws such as consumer protection law and the applicability of product liability to various AI systems. Traditionally consumer protection and product liability regulatory frameworks have been structured around fault-based claims. However, given the challenges concerning explainability and transparency of decision making by AI systems, it may be difficult to establish the presence of defects in products and, for an individual who has suffered harm, to provide the necessary evidence in court. Hence, consumer protection laws may have to be adapted to stay relevant in the context of AI systems. Even sectoral legislation regulating the use of motor vehicles, such as the Motor Vehicles Act, 1988 would have to be modified to enable and regulate the use of autonomous vehicles and other AI transport systems.
- Contextualising AI systems for both their safe development and use
To ensure the effective and safe use of AI systems, they have to be designed, adapted and trained on relevant datasets depending on the context in which they will be deployed. The Working Document envisages India being the AI Garage for 40% of the world – developing AI solutions in India which can then be deployed in other emerging economies. Additionally, India will likely import AI systems developed in countries such as the US, EU and China to be deployed within the Indian context. Both scenarios involve the use of AI systems in a context distinct from the one in which they have been developed. Without effectively contextualising socio-technical systems like AI systems to the environment they are to be deployed in, there are enhanced safety, accuracy and reliability concerns. Regulatory standards and processes need to be developed in India to ascertain the safe use and deployment of AI systems that have been developed in contexts that are distinct from the ones in which they will be deployed.
The NITI Working Document is the first step towards an informed discussion on the adoption of a regulatory framework to govern AI technology in India. However, there is a great deal of work to be done. Any regulatory framework developed by India to govern AI must balance the benefits and risks of deploying AI, diminish the risk of any harm and have a consumer protection framework in place to adequately address any harm that may arise. Besides this, the regulatory framework must ensure that the deployment and use of AI systems are in consonance with India’s constitutional scheme.