Mishi Choudhary Associates

Understanding Indian Constitutionalism and Technology Aesthetics: A Brief Introduction

Authored by Mr. Abhivardhan , Chairperson and Managing Trustee at the Indian Society of Artificial Intelligence and Law. This blog is a part of the RSRR Blog Series on Artificial Intelligence, in collaboration with Mishi Choudhary & Associates. Read more at RGNUL Student Research Review (RSRR): rsrr.in/2020/09/08/indic-artificial-intelligence-constitutionalism-2/

The Indian Constitution, by its preambulatory understandings, focuses on delivering the commitments of social welfare, democratic and administrative federalism, distributive justice and secularism. Various pronouncements and interpretations in declared judgments and commentaries/scholarly writings pose over the same model of Indian Constitutionalism. Since most of the administrative components in the Indian polity were inherited by the British Raj, we have a common law system, and our bureaucratic governance has a special focus on vertical hierarchies. Taking this into consideration, the packets of judicial activism and socialism shape the anatomy of interpretations over the laws, which are enacted here[i]. Most of our inspirations have been based on the regulations and documentation from the European Union and the Organisation for Economic Co-operation and Development, and the notions of distributive justice are put in a spatial balance with the newly designed and improved conceptions of national security and sovereign interests. The foreign policy angle, therefore, is attributable to India’s constitutional nature, if we have to understand how India’s constitutionalism is dealing with the aesthetics of technology.

Our constitutional ideals towards technology can also be translated from India’s recent candidature statement with regards to the non-permanent membership of the United Nations Security Council, which is a significant brochure[ii]. Nevertheless, even in the Responsible AI Draft Paper written by the members of NITI Aayog, which was published on July 21, 2020, an open-ended approach to Artificial Intelligence (“AI”) was central to the localization of technology and its resources to strengthen the national market, with better economical approaches to the rule of law — to empower India going global amidst the COVID-19 pandemic. While making significant and sufficient conclusions on such matters is not something one can affirm within absolute capacity, it is certain that a libertarian economical approach to constitutionalism would be important, where privatization fosters individualistic empowerment of industries and sectors, considering the disruptive nature of AI[iii]. Another angle to this issue is cultural, and not ideological, since AI is disruptive, and much of the approaches related to management sciences and AI Ethics are Americanized. The generic problems of the Americanized and European approaches to AI Ethics are that they are:

  1. Ethnocentric and limited to monolithic workspaces;
  2. The approaches they employ to endorse diversity and inclusion are technocratic[iv] and not based on geographic and ground realities, because without empowering the economic precept of equality of opportunity, imposing equality of outcome will not be feasible and;
  3. Heavily politicized and since they are fit for Global North countries, they are just imposed on Global South countries such as India, the African continent and others.

This article is a premise on how we can develop our own means and methods of constitutionalism, emanating modern virtues from the libertarian-conservative model of governance coalesced with the economic approaches to the Indic culture and history, benefiting the democratization of AI altogether.

AI and Constitutionalism in Indian Jurisprudence: A Take

Indian jurisprudence is not immune to the adoption of jurisprudential conceptions created, professed and practised around the world. Our courts, legislative bodies and executive branches are capable enough to endorse different conceptions, keeping certain ideals intact, in order to attain harmony in interpretation and reasonability. The important problems that emerge amidst all of this are related to the philosophizing of rule of law and constitutional morality, in order to maintain public interests as well as the sovereignty cum security of the state[v].

In order to understand the role of AI in Indian Constitutionalism, let us get into the jurisprudence as the legal recognition of AI will be central to algorithmic politics and diplomacy, thereby deciding how politically and legally balanced India’s constitutional values and foreign policy would be in the coming future. The status of Artificial Intelligence can be demarcated by understanding these points:

  1. Status of AI as an actor or a non-actor;
  2. Status of AI as a product or service;
  3. Status of AI as a state actor or a non-state actor;
  4. Status of AI as a juristic personality or a legal corpus;

AI as actor/non-actor

There is no doubt that AI can be either an actor or a non-actor. There is no probable dichotomy in ascertaining the same matter. There exist certain examples which show that AI can be an involved actor, or perhaps be limited as a diplomatic/political/administrative/business tool[vi]. When AI does not possess characteristics of being an involved actor, it can be considered to be a tool, product or service.

AI as product/service

AI can be a product, and it can disrupt the conundrums of liability mechanisms in certain formulations. When AI is considered to be a service, the influential morphology of the liability framework then rests a lot of the life cycle of the AI system, especially on the Machine Learning processes[vii].

AI as a state actor/non-state actor[viii]

AI can be a state actor by virtue of diplomatic, administrative, juridical or parliamentary channels, where it is utilized. Even in the matters of espionage, contended questions on AI being a state actor can be asked. Alternatively, AI can also be categorized as a non-state actor wherein possible, such as in events of cyber warfare, soft power or cybercrimes.

AI as a juristic personality/a legal corpus

AI cannot be a legal corpus in an immediate manner, because of the fact that its conundrums are being studied. A 3-tier classification of narrow, super-intelligent and general AI is the basis of how a legal corpus can be established. In general, giving AI a juristic status can be based on declared judgments or limited notifications, and therefore the same can be expanded and transformed on a more economic basis. It simply means that the economic scope of using, accepting and rendering AI would be based majorly on private activities, but the economic understanding must not be limited to neoliberal economics. Rather, it should be accorded with a cycle of wealth distribution & creation, which respects the status quo of the collective rights of indigenous communities, who require AI in due support, and at the same time, protects and reckons the economic liberty of individual creators and entities.

The Indic Angle to AI and Legal Regulation Regimes

Any regulation and regularization initiative would be central to the angle of interpretation which is settled upon. AI is no different in this matter although we can adopt philosophized constitutionalist approaches to legal regulation and governance of AI. This can be translated from the General Data Protection Regulation or the Algorithmic Accountability Act of 2019. In the West, scientists are figuring out how to construct monolithic notions of procedural regularity, such as automated fairness/discrimination[ix], omnipotent & omnipresent AI[x], consumer experience (CX)[xi], explainable AI[xii] and more. The contentious claims about the triad of AI, that is (1) Artificial Narrow Intelligence (or Strong and Weak AI); (2) Artificial Super Intelligence (or superintelligence); and (3) Artificial General Intelligence (AGI), and the rise of AGI are nothing but indeterminable. The indeterminacy of the same stems from the dialectic definitions and approaches towards AI[xiii] which are enumerated as follows:

  1. AI’s triad classification requires a deeper study of how intelligence is automated. Most of the domains that involve AI’s dynamics are based on the philosophized neoliberal notions of western libertarianism-conservatism in management sciences and computer sciences;
  2. The dialectical methodology of approaches that stem AI Ethics and Policy discourse is isolated, since AI fails to understand (1) economic realities and the macroscopic relevance behind the democratization and responsible possession of disruptive tech; (2) geographic realities, which despite automation and augmentation, require multi-experiential perfection, and neural research still has to condone the practicalities of metaphysics and how can they work in physical and cyber realities; and (3) the trans-omnipotence in the replenishment and growth of human identities and pluralities;
  3. The current post-liberal approaches to economics, humanities and sciences are deeply politically motivated, and fail to understand the contexts and harmonious diversity of regions such as India, Africa and even the rest of the East.

An Indic approach to AI and Constitutionalism therefore can be based on some short-term suggestions, which from time to time, will grow and improve:

  • The Vedic and Modern Indic interpretations and conceptions of Indian culture, according to verified historians[xiv] is deeply rooted in the sociological inheritance of nature and geology, which can guide us towards a newer understanding of naturalism in law;
  • The Puranic texts, such as Shrimad Bhagavad Gita, emphasize on rolling back any superficial definitions of natural persons, civil liberties, individualism and positive law. In due connotation with Indic traditions, Gita, for example, can pave way for policymakers in India to at least study and formulate geographically cultural and individualist means to enforce non-binding measures to open up AI and its variants with better data quality standards, based on

(1) the geological physic of the Indian society;

(2) the process of cultural inheritance of disruptive technology and its uses in real life; and

(3) mending the potential and capabilities of AI through aesthetic and physical means.

  • Works by thinkers such as Vishnugupta Chanakya, Rabindranath Tagore, Swami Vivekananda, BR Ambedkar, Rahul Sankrityayan and others can, in a suggestive manner, pave distinctive ethical conundrums between the dynamic relationship of AI & human and corporeal entities;
  • Indic literature is definitely traditional, and timeless to a limited extent, due to the disconnect in the enculturation from the past history of the current Indian society. Thus, in case where Western/European/American libertarian approaches to rule of law, accountability and data liability and proceduralism are needed, the Indic literature and research focused on the cultural-geographic ethos of the Indian society will
  • harmonize the industrial, economic and social disruption caused by AI;
  • enhance training policies and strategies to advance and improve skill rejuvenation initiatives in the field of education, where as per the National Education Policy of 2020, the integration of AI with other disciples is put into use; and
  • construct better coalescence between the centralized top-to-down approach of rule of law, constitutional morality and civic nationalism and the communitarian, decentralized, incremental and long-term efforts to sustain cultural nationalism, civilizational morality and individual economic libertarianism, when any issue would be dealt through legislative, juridical or administrative means.

Conclusion

The approach proposed is based on the simple understanding that India’s strategic and geographic capabilities can be beautifully reflected with the libertarian-free-market constitutionalist approach of the Indian state – which itself can enable us to utilize AI like any other disruptive technology as a strategic moat. India is capable of developing low-cost yet efficient and workable frugal innovation. Our courts and bars must, therefore, be keen to change the economic evaluations to rule of law by expanding the horizons of Indic constitutionalism through internalizing the cultural-geographic capabilities of the Indian people, in order to make AI useful and helpful instead of simply cloning and replacing human skill. The approach therefore takes into note the indigenous skills and diversity of the Indian society and its capability to reform their approaches towards frugal innovation with better rule of law.

We must be clear that the approach hinted is neither exhaustive nor perfect. However, technology disruption, constitutionalism and economic libertarianism must be at the center of the procurement and utilization of AI. Through relevant incremental means, we can hope to shape our training and education strategies for AI regulation in the field of law, if we recognize the Indic ethos of India as a constitutional and civilizational state.

References

[i]At present, considering the technology ecosystem, India has seen various liberal changes after the passing of the IT Act, 2000 and we are shifting our reach from mere e-commerce-related laws to smart contracts and advanced and feasible compliance measures with regards to drones (for example), which is appreciated.

[ii] While India endorses a reformed multilateral UN system, it is clear that India’s support to the US-EU-UK bloc over interpretations on the legality of Lethal Autonomous Weapons and Cyber Espionage and the founding membership of the Global Partnership on Artificial Intelligence is a relevant step to go far in AI Diplomacy.

[iii] This is usually published in Harvard Business Review, Wall Street Journal and other notable management sciences publications. For example, please refer to this link to understand the cultural-aesthetic aspects of AI in management studies: https://hbr.org/2016/11/how-artificial-intelligence-will-redefine-management.

[iv] Please refer to How Capitalism Drives Cancel Culture published in The Atlantic; How ‘cancel culture’ has turned liberals against each other and is rocking newsrooms published in ThePrint.

[v] For example — most of the think tanks and research organizations, which profess for the absolutism of Privacy as a Fundamental Right emanating from the interpretation of Article 21 of the Indian Constitution, focus on the physiological model of Privacy, where a technocentric, individual-centric, legal formalist model of Privacy regulations must be encouraged. Some organizations differ on the same and cater an anthropomorphic model of Privacy, where they regard fusion of cultural values, geographical disparities and realities and equity in human responsibility. The dilemma we usually face is that in this issue also, the Central Government has some limited lack of expanding how national security infrastructure and privacy jurisprudence can coalesce.  Perhaps that is one of the essential reasons why the Supreme Court has now decided to restore 4G services in the UT of Jammu and Kashmir, on a trial basis with incremental measures, for example.

[vi] Please refer to the Strategic Implications of Openness in AI Development (Bostrom, N. 2016. (Technical Report #2016-1). Future of Humanity Institute, University of Oxford).

[vii] Please refer to the Policy Briefing on the European Commission’s Paper on Excellence of AI, February 2020.

[viii] Please refer to the DiploFoundation report on Mapping AI’s challenges and opportunities for the conduct of diplomacy.

[ix] Please refer to Wachter, Sandra and Mittelstadt, Brent and Russell, Chris, Why Fairness Cannot Be Automated: Bridging the Gap Between EU Non-Discrimination Law and AI.

[x] Please refer to “Omnipotent and Omnipresent AI is likely if not already exists.” Published on Medium.

[xi] Please refer to The Impact of Emerging Technology on CX Excellence – Oracle.

[xii] Please refer to Explainable Artificial Intelligence (XAI): Concepts, taxonomies, opportunities and challenges toward responsible AI.

[xiii] Please refer to Abhivardhan, The Ethos of Artificial Intelligence as a Legal Personality in a Globalized Space: Examining the Overhaul of the Post-liberal Technological Order, May 29, 2020, IFIP Advances in Information and Communication Technology book series (IFIPAICT, volume 584).

[xiv] Please refer to Diana Eck, India: A Sacred Geography (2012), Harmony; Sanjeev Sanyal, The Incredible History of India’s Geography (2017), Penguin Books; Gurcharan Das, India Grows At Night: A Liberal Case for A Strong State (2013), Penguin Global; V S Naipaul, India: A Wounded Civilization (2011).