Regulatory Sovereignty in India: Indigenizing Competition-Technology Approaches, ISAIL-TR-001 by Indian Society of Artificial Intelligence & Law

Regulatory Sovereignty in India: Indigenizing CompetitionTechnology Approaches, ISAIL-TR-001 Abhivardhan, Editor Abhivardhan, Aditi Sharma, Megha Hurkat, Sanad Arora, Mridutpal Bhattacharyya & Ishan Puranik, Authors

Indian Society of Artificial Intelligence and Law Technical Report Series

Year: 2021 Date of Publication: October 23, 2021 ISBN (online): 978-81-947131-5-9 ISBN (paperback): 9798486468117 Editor: Abhivardhan. Authors: Abhivardhan, Aditi Sharma, Megha Hurkat, Sanad Arora, Mridutpal Bhattacharyya & Ishan Puranik All rights reserved. No part of this publication may be reproduced, distributed, or transmitted in any form or by any means, including photocopying, recording, or other electronic or mechanical methods, without the prior written permission of the publisher and the authors of the respective manuscripts published as papers. except in the case of brief quotations embodied in critical reviews and certain other non-commercial uses permitted by copyright law. For permission requests, write to the publisher, addressed "Attention Permissions Coordinator," at the address below. Printed and distributed online by Indian Society of Artificial Intelligence and Law in the Republic of India Regulatory Sovereignty in India: Indigenizing Competition-Technology Approaches, ISAIL-TR-001, First Edition 2021. Price (Online): 200 INR Price (Paperback). 10 USD (Amazon.com) Indian Society of Artificial Intelligence and Law, 8/12, Patrika Marg, Civil Lines, Prayagraj, Uttar Pradesh, India - 211001 The authorship of the book is retained with the authors of the technical report, while the ownership is retained by the publishing organization. To cite, please follow the format for the list of references as follows 2021. Regulatory Sovereignty in India: Indigenizing Competition-Technology Approaches, ISAIL-TR-001, Prayagraj: Indian Society of Artificial Intelligence and Law, 2021. You can also cite the book through cite this forme.com (recommended) For Online Correspondence purposes, please mail us at editorial@isail.in. For correspondence purposes, please contact at: 8/12, Patrika Marg, Civil Lines, Prayagraj, Uttar Pradesh, India - 211001

Regulatory Sovereignty in India: Indigenizing CompetitionTechnology Approaches, ISAIL-TR-001

Preface This is a Technical Report published by the Indian Society of Artificial Intelligence and Law, authored by Abhivardhan, Aditi Sharma, Megha Hurkat, Sanad Arora, Mridutpal Bhattacharyya & Ishan Puranik. The report gives a background analysis on a longer initiative for the Strategic & Civilised AI Programme, to suggest policy solutions in the domain of technology law, especially artificial intelligence and law. The following important areas covered in this background work, will be complemented by another technical report, suggesting policy solutions largely, which are: • Digital Coloniality and Competition Policy in India • How Digital Coloniality Impacts First Principle Rights of Economic and Social Nature in India • The Indian State and Technology Governance • Deciphering the Key Role of Artificial Intelligence & Disruptive Technologies as Sectoral Issues for CompetitionTechnology Policies • Knowledge Economy Problems • Indian Foreign Policy: Technology-related Avenues and Lack of Geostrategic Cores • Role of Indic Knowledge Systems in Indigenising the Competition-Technology Policies • Laying Down a Framework of Dispute Resolution as Starters in Competition-Technology Policies in India Office of the Secretariat Indian Society of Artificial Intelligence and Law

Indian Society of Artificial Intelligence and Law Technical Report Series

Table of Contents Introduction .................................................................. 8 How Algorithms as Agents of Information Impact Rule of Law ................................................................................ 8 The Lackadaisical Position of Competition Law in India and the United States ..................................................... 12

Comparison with the European Union’s Competition Policy ................................................................................................... 16

Digital Coloniality and Privatizing the Degradation of the First Principles Rights cum Economic Conditions . 19

How Digital Coloniality Privatizes the Advanced and EverEvolving Components of First Principles Rights ................ 21 Digital Coloniality and Corporate Exceptionality in Utility: Corporate Hostage of Specialities ......................................... 26 The Epistemic Monopolization of “Needs” and “Wants”: Privity and Public Vicinity ..................................................... 30

The Problem of ‘Omnipotence’ and ‘Omnipresence’ in Sectors and their Intersectional Relationship ............... 35

What are Omnipotence & Omnipresence? ........................... 35 How algorithms are shaping our life ..................................... 36 Ubiquitous Computing............................................................ 37 The Problem with Omnipotence and Omnipresence .......... 39 The importance of safeguards................................................ 39 Differentiating Neoliberal Materiality and Technological Evolution .................................................................................. 40

India’s Position and Status Quo ................................. 42 The Transformation of Competition Law in India Related to Disruptive Technology ................................. 42

History of Competition Law Policy in India ........................ 42 How Indian Courts have approached Comparative Competition Law?.................................................................... 44 Competence of the Current Competition Law Regime ....... 46

Scope of the Information Technology Act, 2000 on Disruptive Technologies ................................................ 52

Disruptive technology............................................................. 53 What becomes a disruptive idea: Three litmus tests .......... 54

Regulatory Sovereignty in India: Indigenizing CompetitionTechnology Approaches, ISAIL-TR-001 IT Act, 2000 and Disruptive Technology............................. 55 Scope of IT Act on Disruptive Technologies like Blockchain ................................................................................ 56 Scope of the IT Act and Internet of Things ......................... 59 Scope of IT Act in the Case of Artificial Intelligence ......... 61

India’s Technology Diplomacy and Polyvocality in Policy Adaptations .......................................................... 77

A Coherentist Approach to Regulation................................. 78 NITI Aayog and the Judiciary: Roles .................................... 78 Lack of Geostrategic and Geopolitical Core in Technology Diplomacy ................................................................................. 79

The Personal Data Protection Bill: Scope for Transnational Regulatory Sovereignty in Data Law ..... 80

Introduction ............................................................................. 80 Objective of the bill ................................................................. 82 Data sovereignty ...................................................................... 83 Dilution of Specifications for Data Localization (Sec. 33 and 34 of the Bill) ............................................................................ 84 The Right to Be Forgotten (Sec. 18 of the Bill) ................... 84 Union Government may order data trustees to disclose anonymous personal data/non-personal information (Sec. 91 of the Bill) ............................................................................ 85 Application of the Act ............................................................. 87 Doctrine of data sovereignty .................................................. 90

Policy Paralyses in India’s Approach Towards Algorithmic and Information Governance..................... 91

Information Governance Issues ............................................. 91 Algorithmic Governance Issues ............................................. 94

The Lackadaisical Position of India on Knowledge Economy ........................................................................ 100

Condition of India’s Knowledge Economy.......................... 100 Knowledge Economy in the age of Disruptive Technologies ................................................................................................. 103 Effect of Poor knowledge economy in the age of DT ....... 104 Analysis of the impact of poor knowledge economy in relation to disruptive technology at 3 different levels...... 105 Disadvantage to local knowledge workers and firms........ 107 Creation of ‘knowledge vacuums’ ........................................ 108 Responsibility and accountability........................................ 109

Indian Society of Artificial Intelligence and Law Technical Report Series The Need to Indigenize Knowledge Economy ................... 110

The Proposals for Newer Approaches ...................... 113 Decolonization of the “Coherentist” Approach towards Technology Law ........................................................... 113 Decentralization and Pseudonymization of References of Action Related to First Principles Rights ................... 117 Reform Common Law Machineries in Public Law and Technology ................................................................... 119

Typology of Regulation throughout our history ............... 120 Technological transition ...................................................... 121 Technology effects on common law regulations ............... 121 Role of ICTs in Judiciary and public sector ....................... 122 Technology in judicial matters ............................................ 124 Role of Case Management Systems ..................................... 125 Government Regulatory Functions in Technology ........... 125

Recommendations on Dispute Resolution Mechanisms ....................................................................................... 126

Competent Parties ................................................................. 127 Assessment of Certain Existing Mechanisms of Dispute Resolution and their Applicability ...................................... 132 The Question of Third Parties ............................................ 135 The Question of Privity, Privacy and Confidentiality in Dispute Resolution Mechanisms ......................................... 136 Conclusive Assessment ......................................................... 138

Conclusions and Additional Recommendations ....... 142 The Recommendations ................................................. 142 Conclusion ..................................................................... 145

References ................................................................. 146

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Indian Society of Artificial Intelligence and Law Technical Report Series

1 Introduction Algorithms play an important role in deciding the scope and progress of various kinds of coherent and parallel economies, which are canvassed through the global commons. Artificial intelligence ethics is an important field – which is emerging in the domain of international technology law steadily. India, one of the emerging Global South countries, is adopting newer competition legal and technology law approaches to transform its sovereign imperative and its strategic interests in the realm of global governance. This report analyses, where India requires proper and implementable competition-technology law approaches, which act in due proportionality to defend two kinds of sovereign imperatives, i.e., algorithmic & information-related. Algorithmic sovereignty simply refers to the issue of regulatory considerations in the domain of artificial intelligence ethics, where AI technologies need scrutiny, judicial and executive – both, with effective redressal and dispute resolution mechanisms. Information sovereignty alludes to the problem of data law and how India should and has been adapting and developing nuanced practices of data protection & data-related regularization frameworks. The approach of this report is clearly to provide optimistic and practical alternatives to the current legal and policy framework of algorithmic and information sovereignty in India. We are not suggesting a complete overhaul. However, we have surely suggested appropriate policy solutions wherever rendered.

How Algorithms as Agents of Information Impact Rule of Law Algorithms as the agents of information, in the context of this report, must be understood taking into consideration the lack of

Regulatory Sovereignty in India: Indigenizing CompetitionTechnology Approaches, ISAIL-TR-001

explanability, transparency and foreseeability by design, that the Artificial Intelligence systems generally have. Explanability stems from the understanding along with transparency that by default and design, any algorithmic infrastructure must be prepared and tacit in avoiding conflicting circumstances, in human environments. Now, the relationship cannot be established directly because the dependence on algorithms varies from sector to sector, and even in various domains of law, the liability of the owners of such systems, would be case-to-case based. Hence, we have adopted a balanced approach in determining the following: • How are algorithms the agents of information in the context of the report? • How are algorithms capable to impact rule of law as a politico-legal phenomenon? • How are algorithms capable to render economic impacts due to its effect on law and order & rule of law-related situations? Now, algorithms can be agents of information, because they can process information in the most tangible form they can process, and then even democratize the information. The most obvious and apparent example comes from social media-based algorithms. However, the proliferation of algorithmic activities is visible, wherever the ML algorithms are reasonably involved. The involvement of algorithms means, that under the SOTP classification adopted by the Indian Society of Artificial Intelligence and Law (Abhivardhan, et al., 2021)1, the algorithms are enabling the AI system or infrastructure as a subject – (it is using humans as data subjects) since it is learning and enabling better effective tasks to be achieved. Now, no subjective analysis can be granted on how exactly this is played out because there are various kinds of algorithmic-data infrastructures, which cannot be of course marginalized. However, there is no doubt that algorithms can act as the agents of information, nevertheless.

The first mention of the classification is in the 2020 Handbook on AI and International Law. 1

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With respect to the second question, it is important to estimate the definitive and deterministic aspects of rule of law. Rule of law means the adherence of the law, as well as the order created by the law, based on the clinical basis involved. Algorithms of course are assumed to be law-agnostic and order-agnostic because they are human-made, not human-conscious. This is an important reason why the context of human rights is brought up to focus on academic consensus for human-centred AI Ethics (Christley, 2020). Human-centric AI, however, as a concept, is based on the rights-based approach, which makes it limited to the focus of positive legal hierarchies, through extending human rights law expansion. That maybe is a juridical way to impart a positive law (even hard law) approach to achieve goals. However, it is not necessary that the goals have become productive enough. There are serious problems with the rights-based approach, due to ample lack of practicality and the sentimental basis of the construct (Douzinas, 2019). However, the moral component of the rights-based approach should always have been on embracing various ethical considerations which form an engaged and informed perspective. This affects the principal credibility of what constitutes rule of law as well, because the positivist character of the system itself is either submerged that makes it invisible, or the construct has over-delegated the responsibilities it should have beholden to. Roger Brownsword explains it clearly under his proposed trifecta of stages of administrative law and technology governance (Brownsword, 2018) as follows: • Coherentist – Governments enforce their positive legal approaches, which are primarily expanding the administrative scope of the existent laws to scrutinize the emerging technological phenomena. Courts also contribute to the process through their vertical approaches to hard law. • Regulatory-instrumentalist – Nuances are developed in the regulation of technological phenomena. There are different ways and factors, through which proper and transparent regulation is expected. For example, data law regulation and the regulation of competition of markets are two distinct cases, which can possibly apply on the same technological phenomena per se. • Technocracy – Establishing that doctrinal integrity is not the goal, and the system itself if is not complied by the legal

Regulatory Sovereignty in India: Indigenizing CompetitionTechnology Approaches, ISAIL-TR-001

subject, then the system should subject to hard-line interventionist approaches. One example with Brownsword mentions in his article is of immobilizing a car if the seat belt is just not worn by the driver (Brownsword, 2018). Basing formulations of his understanding of regulatory theory in the domain of administrative law and technology, it is clearly discernible to assert that the regulation of AI technologies, considering AI as a juridical entity (Abhivardhan, et al., 2021), should be strictly based on doctrinal integrity, and effective regulatory frameworks. It means that Coherentist and Regulatory-instrumentalist approaches can go hand in hand, as approaches develop with time. In the context of even Indian administrative law, this approach of combining doctrinal integrity with nuanced approaches to regulatory theory would be of utmost help. The third question is answerable, throughout the sections of the report, of whose cardinal basis, is enumerated as follows: • The report focuses with a competition law perspective in the Indian context on how AI technologies are used by companies (especially multinational companies and foreign companies) to subject to digital colonialism, violating competition law practices. • The report also focuses on the Indo-US legal and political ties, in the context of their competition policies and approaches. • The report assesses the limitations in the Indian systems of competition law, technology law and data protection law, especially the I.T. (Intermediary Guidelines and Digital Media Ethics Code), Rules, 2021 notified by the Government of India in March 2021. • The report thereby analyses the aspects of corporate governance where compliance and resource distribution by technology companies (especially AI-reliant and AI-serving companies) can be reasonably achieved to counter digital coloniality and ensure that the impact of AI technologies is avoided as being counterproductive.

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The Lackadaisical Position of Competition Law in India and the United States In an economic structure, a state can play numerous roles. The three that can be identified as most essential are: (1) producer of marketable goods and services; (2) supplier of “public goods” and “merit goods” like primary education and public health; and (3) regulator of the system. The diminishing role of the state as a producer of marketable goods and services and the growing role of the market in such areas concurrently boosts the role of the state as a “regulator” and “facilitator.” The regulatory role is essential to ensure competitive conditions in the market are maintained and that everyone follows the elementary rules of the game. The yield and efficacy linked to markets can only be procured if the market remains competitive. Competition laws across the world, therefore, seeks to: a) bar anti-competitive agreements, including associations that tend to regulate prices, bound, govern, or stake markets, or marks bid-rigging; b) bar exploitation gained through dominant position, unfair or biased prices, or conditions, including predatory pricing, restraining or confining production or denying of market access; and c) regulate groupings, i.e., mergers, acquisitions, etc., which may cause a substantial hostile effect on competition. As always, there is a typical debate between the behavioral and structuralist approaches. Market concentration and barriers to entry are two crucial elements of market structure. An action by a firm that increases either of the two will be deemed, under the structuralist approach, as violative of the maintenance of competition. Conversely, the behavioral approach gazes at the conduct of the firm instead of structural infringements. The structuralist approach reduces the cost of enforcement as it eliminates the requirement to demonstrate that an arrangement is harmful. Though, there is no approach through which competition or regulatory authority can get away minus establishing that a specific action has had a hostile effect on competition. Establishment of the fact defining what activities and under what conditions will they constitute abuse of the principles of competition is necessary.

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The other problem is on how to achieve stability between industrial policy and competition policy. Many debates highlight that global size players like national champions are necessary to be able to contest in the international economy, while others argue that fleet-footed players will also be able to compete in the global economy. For national champions, the instances from post-war Japan and Korea can be referred to, which secured their domestic commerce by tariff protection, regulated entry, and consequently formed national champions. However, with decent retrospection, it can be observed that they endorsed a huge number of domestic companies in sectors such as steel, automobiles, and electronics, thus creating healthy competition at home. This made the Korean and Japanese manufacturers become competitive in the international economy. However, the circumstances have transformed enormously since then because now the competition is aided by international organizations like the World Trade Organisation (WTO), etc., countries cannot take analogous tactics in raising their industrial sector. Local firms face competition at the domestic level, and only those that win are able to compete internationally, or else if the state has to stretch extra security or leverage for them, it may result in crony capitalism. While the competition authorities happen to preserve competition, for various sectors, regulatory authorities have also come to conquer an important place. Historically, the Indian economy was regarded as significant because the association of government was manifested by supremacy over the large state-owned public sector enterprises. India embarked on the track of economic reforms during the 1990s when it shifted to market-driven economic policies. The drive of reforms was to preserve and endorse competition as a means to confirm effective sharing of resources, thereby ensuing in the best probable choice of quality, satisfactory supplies to consumers, and at the lowest price. Above all, contrasting many other reforming economies, India adopted a mixed-economy approach, which means where the public sector competes with the private players, instead of offering the public sector entities like airlines, telecom, etc., to the private sector entirely. However, there are exceptions like the

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electricity sector, among others, that are being introduced steadily. At one end of the band, we have one of the lowest rates in the telecom sector, where there is a large number of private players. On the other end, we have the electricity sector, where there is barely any competition and thus reduced growth and an enormous supply shortage. This enigma raises two critical issues: first, competitive neutrality or providing a level playing field, and second, the intersection of the competition authority and sectoral regulators. Since the dawn of economic reforms, there have been substantial deviations in our policy arena, most of which included more and improved dependence on market forces. Along with policy changes, we have also espoused a new competition law as a supplement to our market-oriented economic reforms. Furthermore, we have regulatory laws in a number of sectors opened up for private players that were previously kept back for the public sector. The rise in interest in regulatory and competition laws reflects the extensive modifications that have been taking place in the policy pattern. The enactment of the competition law is not without its difficulties. Be with respect to anti-competitive agreements or the manipulation through dominant position or mergers and acquisitions, the serious question to examine is if a specific verdict or act has had the effect of reducing competition. When and if the competitive markets cannot exist, the regulatory authorities’ command is to ensure competitive outcomes are achieved to the scope as possible. Infrastructure sectors like energy fall in this class, largely. States largely use regulation with a wide-ranging and extensive meaning to accomplish a comprehensive non-market idea like confirming universal and equitable access, consumer protection, and maintaining standards for safety and well-being. Additionally, it recognizes and addresses subsidies and crosssubsidies in the delivery of services. This, nevertheless, is a probable zone of political intrusion. The government time and again finds means to get around regulator’s recommendations in relation to subsidies if they are politically problematic. Besides political interloping, the presence of a huge number of sectoral regulators in conjunction with a competition authority raises the matter of intersection and struggle.

Regulatory Sovereignty in India: Indigenizing CompetitionTechnology Approaches, ISAIL-TR-001

US competition policy, on the other hand, stems from laws passed at varied times in the history of the United States, and consequently, the objectives of these statutes are not alike. Overall, US antitrust policy is principally aimed to guard consumer welfare, i.e., yield a range of products at reasonable prices, with meek elements of impartiality or right of firms to be at liberty of coercion and of hostility to immense focuses on economic power. Through much of its past, US administrative agencies and courts were not very profound to claims of proficiency as they assumed that a vigorously competitive market would spontaneously be resourceful. Nonetheless, various modern analysts believe that efficacy claims are expected to be given more weight in the future. Refined economic scrutiny is the heart of American antitrust enforcement. ‘Industrial policy’ is defined by them as manifest efforts to build up domestic firms that would serve specific goals rather than focus on competition and proficiency. Objectives like successfully contending in international markets have not had much sway on US antitrust law. Hardly ever does industrial policy distresses like promoting research and development impact competition rules. Similarly, those concerns rarely outmanoeuvre antitrust policy entirely. Primarily, competition has been the industrial policy of the United States. In the US, free movement of goods was realized through a sensitive construal of the commerce clause provisions of the US Constitution that successfully shattered local or regional preferences and state barriers. US enforcement of competition policy is both intricate and litigation-oriented. The statutes are, in most cases, succinct, and the law has been made through legal interpretation. Occasions for the federal government to enact a law or regulate policy by decree or guidelines are restricted. However, difficulties in the American competition policy stem from the fact that there are countless sources of enforcement and by-law. At the central level, two agencies, the Antitrust Division of the Department of Justice and the Federal Trade Commission (FTC), have corresponding jagged jurisdiction. Nonetheless, the FTC has no criminal prosecution authority, the two agencies’ policies are not always harmonious. States and private parties damaged in their

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business and property also have access to the courts, and they commonly bring cases that go outside or are blatantly fickle with predominant federal policy. Lastly, competition policy is every so often prejudiced by the protectionist efforts of the Department of Commerce and the International Trade Commission, and procedures and subsidies that develop from an extensive range of departments and agencies, like, the Department of Defence pertaining to the defence industry and the Federal Communications Commission with regard to telecommunications. Establishing a competition authority by itself does not decipher all the hitches pertaining to the conception of competitive conditions. Unless there is a strong political will, even the competition and the regulatory authority possibly will not be able to function meritoriously. However, in order that competition may win through competition and regulatory laws need to be complemented by a fitting Competition Policy that guarantees a complete play of competitive forces. Such a policy must administer all Government policies so that there is no anticipated or accidental hostile impact on competition. Altogether, there must be no barriers to entry. In some parts, minimum criteria for entry could be recommended. These prescriptions, however, should strictly be in the nature of practical standards. To legislate clear directives for regulators and the competition authority can also be effective. It is paramount to leave the determination of competition principles to the competition authority. Across sectors, some common principles of competition must prevail. Comparison with the European Union’s Competition Policy It is the job of the European Commission to enforce European Union competition legislation. Regulation 1/2003, Article 4, Chapter II, gives the commission the authority to apply Articles 81 and 82 of the Treaty establishing the European Community. As a result of an investigation or on its own, the Commission may order the companies and associations of companies in question to stop violating Article 81 or Article 82 of the treaty by a decision. These remedies may include any behavioral or structural measures appropriate to the infringement committed and

Regulatory Sovereignty in India: Indigenizing CompetitionTechnology Approaches, ISAIL-TR-001

required to effectively stop it. This is the objective for which they are imposed on them. For urgent situations where significant and irreversible harm to competition might result, the Commission may impose interim remedies based on a prima facie finding of violation. The Commission is also entitled to issue interim measures. Comparison with Indian Laws – transnational application Due to ambiguity in legislation about the scope of the laws' jurisdiction, the EU devised several doctrines to broaden and exercise its power over other countries. The "Single Economic Entity Doctrine" is one of them. An organization's parent firm and its subsidiary are treated as one for the purposes of applying competition legislation under this theory. In A Ahlstrom Oy v. Commission (1993), often known as the "wood pulp case," the Implementation doctrine was used for the first time, laying out the EU's fundamental approach to extraterritorial jurisdiction. EU does not officially acknowledge US effects doctrine even though it is closely connected to European Union implementation doctrine. However, Article 102 of the TFEU, which deals with abuse of dominant market position, was violated in the case of Intel Corp. v. European Commission (2017). The MRTP Act lacked an unambiguous clause allowing extraterritorial jurisdiction, like antitrust legislation in the US and EU. But Section 14 of the Act said that an order might be issued under the Act for any activity outside of India that impacts Indian competition and is monopolistic, restricting, or unfair. Section 14 of The Competition Act of 2002, on the other hand, made it unlawful to operate a business in the United States. According to Competition Commission of India v. Steel Authority of India Limited and Another (Supreme Court of India, 2011), all actions before the Commission must be concluded "most quickly" and in a period even less than the demanding decisional limits stipulated in the applicable legislation. This mandate may be difficult or impossible for the Commission to carry out, and the Supreme Court may have a tough time enforcing it. That's been

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the case in the United States. The courts in the United States do not have the authority to compel the government to act quickly. However, despite having authority and responsibility to impose statutory deadlines on agency activities, US courts have been unable to do so successfully. The country's competitiveness criteria vary along with the international economic climate. Because society is not static, the law must be as well for a dynamic society to exist. Although our 2002 Competition Act attempted to curtail anti-competitive practices in our country, so far it has been unsuccessful. Because of this, our competition law needs a few tweaks to reflect the current state of the market. A few of these are as follows: •

The Commission would save time by including the idea of commitments in the Competition Act. However, even if the Commission is made up of experts, establishing an independent advisory committee would aid in its efficient operation. The Commission does not have the authority to examine the company accused of anti-competitive behaviour; if this authority is not granted to the Commission, the inquiry processes may be tainted. As a result, the commission should be endowed with such authority.

•

It is possible for India to make excellent use of the CCI's rulemaking authority by establishing regulations that define in detail how the CCI decides whether a certain form of activity is in violation of the CA. In several factual scenarios, guidelines like the FTC/DOJ merger guidelines may be highly useful in helping the public understand what the CCI is doing and forecast how the CCI would examine a certain kind of activity.

To empower COMPAT to pay treble damages to private parties damaged by CCI-determined CA violations, India should investigate revising the CA. U.S. competition law's triple damage remedy serves as a significant deterrence for companies contemplating breaking the law.

Regulatory Sovereignty in India: Indigenizing CompetitionTechnology Approaches, ISAIL-TR-001

Digital Coloniality and Privatizing the Degradation of the First Principles Rights cum Economic Conditions Digital Coloniality, for the purposes of this report, is a tendency of gaining influence, in the cyberspace, through digital technologies, which become an important means to organize and systemically distribute whatever is considered as “power” through the control of access to knowledge, moral and artistic resources by the “dominant group”. Coloniality since is a modern concept, and is related to colonialism, implying that there should be some entity of foreign origin and basis (vicariously as well as absolutely), this sub-section does not specifically cover digital feudalism – the phenomenon that companies in the realm of digital technologies feudalise and derogate or undermine national sovereignty of their host state by their corporeal actions, which supersede the scope of their actions defined by the law of the host state, and to some limited extent, if necessary – international law. However, the role of international law in such affairs since is not clearly defined anywhere, apart from the call for adapting business practices, which are ethical, fair, and reasonable, there is nothing specific on digital coloniality in public and private international law literatures. We have therefore, assessed in this sub-section carefully, with an approach to suggest legal, principle-based and policy solutions in the further sections of the report accordingly. Digital coloniality is based on specific and planned actions, which can lead to serious issues of not just undermining state sovereignty, but it can also deprive the people, whose host state is being subjected to the same, through commercial and other kinds of operations, of their constitutional rights, recognized by their basic law & even human rights – of individual, social and economic nature, which are recognized under public international human rights law. The UNESCO Recommendation on AI Ethics of 2021 (UNESCO, 2021) takes into consideration the adverse impacts of algorithms, with 4 perspectives – ontology, pragmatism, epistemology and explanability. The preservation of human rights as recognized constitutional rights is always central to the onus of the host state, whose citizens are impacted by any activity. Now, it also must be determined whether actions by private actors such as technology companies

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of foreign origin have anything to do with the onus of the state. There are two possible interpretations we have adopted: • The first approach is what various constitutional courts in India, including the Supreme Court of India has adopted, which is agreeing that in certain matters, public duty (Supreme Court of India, 2000; Supreme Court of India, 1989) and utility resembles the necessity to enforce the role of the state to protect the fundamental rights enshrined in the Indian Constitution. In education and service law, environment law and other legal issues-related cases, the courts have taken a rights-centric approach. Of course, the appropriateness and proximity of the interpretation has been taken into consideration, which is why the interpretation-inagreement is in principle and is subject to the case studies and illustrations given in the report, taking into consideration that even the judgments have taken nuanced approaches to the issues in the past. • Determining public duty might be considered a legal tool to endorse judicial overreach. However, we do not endorse any such approach, because our estimate is that constituting public duty should be clearly done with the approach of quantifying the role of artificial intelligence via estimating the effects of algorithms and ascertaining the design and default features behind the juridical persona of AI-based technology put into use. Beyond the question of “public duty” and “public utility”, we have also adopted the second approach, which means that self-regulation (a part of soft law) is a tendency among companies, which, in the name of abiding ESG compliances (for example), or at least at face value, indicates a sense of corporate governance. Now, this sub-section does not directly delve into corporate governance issues, but indeed critiques the ontological and therefore, foundational premises and backgrounds behind the corporate governance approaches which companies might be keen to adopt by assessing examples. Companies using such approaches can show or pretend that they are filling gaps in the services they are providing, which transcend with the peripheral of public duty due to their large-scale impact (which is omnipresence and omnipotence, discussed in the further sections of the report) and the technocratic nature of

Regulatory Sovereignty in India: Indigenizing CompetitionTechnology Approaches, ISAIL-TR-001

the proceduralist manifestations which cause the transcendence. There are even politico-commercial and even other strategic-tactical aspects related to such phenomena of transcendence, which has been assessed accordingly. How Digital Coloniality Privatizes the Advanced and EverEvolving Components of First Principles Rights We are living in strange times today and one of the most agreeable sentiment about our life today is that “something big is going on with data” (Couldry, et al., 2019 pp. 336-349) . Many academics are of the view that Big Data processing is ushering a new stage of capitalism (Cohen, 2018; Srnicek, et al., 2017; Zuboff, 2015). Such new world order has incessant amounts of data which supporting its foundations. These companies which developing such all-encompassing influence happen to have resources even surpassing middle income companies (Pinto, 2018). These companies having been able to stockpile such colossal resources can be boiled down to three reasons. Firstly, the amount of control they exercise over the digital space because of their ownership of state of the art hardware and the best intellectual and human capital; secondly it is the overall international legal order which has facilitated the rise of Big Tech especially Intellectual Property and International Free Trade Agreements which has led to a chilling effect on small countries of trying to domesticate such complex services which are performed by Big Tech; the third element is that these Big tech companies mostly belong to countries of the Global North and they had access to either cheap financial capital or venture capital or public private partnerships, since these countries are investing not only to maintain their lead in the industry but to also benefit from such companies by helping them expand into newer markets (Pinto, 2018). This monopoly which these companies exercise over data and the influence they are exercising in shaping our current needs to be explained through the lens of a phenomena which it can be best correlated to and that phenomena is ‘Data Colonialism’. Data colonialism is the term for the extension of a global process of extraction that started under colonialism and

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continued through industrial capitalism, culminating in today’s new form: instead of natural resources and labour, what is now being appropriated is human life through its conversion into data (Couldry, et al., 2020). The basic colonial move of appropriating data from human life works hand in hand with social arrangements and technological infrastructures, some that emerged during earlier capitalism and some new, that enable that data to be transformed into a commodity. An entire industry has been developed whose means of profit reside in the extraction of human data termed as the ‘social quantification industry’ (Couldry, et al., 2020). The original context was industrial capitalism’s progressive globalization in the late twentieth century through trade liberalization and extended supply chains as well as its financialization through an explosive growth of debt (both corporate and personal) and the acceleration of global capital flows. These information infrastructures were developed which aided people and processes to be connected to each other under conditions that facilitate data extraction (Couldry, et al., 2019). Even though the first example which comes to anyone’s mind when the word data processing is discussed is social media companies. However, we need to realise that such data extraction extends way beyond recommending users products based on their behaviour based on the social media platform. This sector includes companies like Apple, Microsoft and Samsung and other companies which manufacture IOTs; data brokers such as Acxiom, Equifax, Palantir, and TalkingData (in China) that collect, aggregate, analyze, repackage, and sell data of all sorts while also supporting other organizations in their uses of data; companies which use consumer data to personalise their services such Netflix, Amazon etc., (Couldry, et al., 2020). A key characteristic of the business model of these companies is that when the user agrees to their user end agreement to use the applications which are built by them they subject themselves to constant surveillance by these companies which is a polar opposite to the basic autonomy which is a fundamental right of every human. The technology which is built by these companies doesn’t just stop at mass surveillance but instead has even more grave and far reaching consequences. One such example is the ZunZuneo case, the United States Agency

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for Development (USAID) deployed a social media program called ZunZuneo in Cuba, and one of the objectives of this program was to create ‘smart mobs’ to protest Castro’s rule and eventually lead to a Cuban Uprising (Anderson, 2014). This example is a testament to how far Silicon Valley has come in its operations, as now its tech is being used to influence global politics. In light of the above example, it is also pertinent to note Shoshana Zuboff’s words in her article ‘Dark Google’ where she mentions how the governments are in a rush to connect the global poor would the tech and use that tech to their own geopolitical advantage (Zuboff, 2014) . Marx presumed that communism would be the obvious next for the society to venture after it had undergone capitalism but considering the past decade McKenzie Wark in capital dead ponders upon the question, “Whether our economy has transformed into something which is even worse than capitalism?” and Joel Kotkin while answering that question in an affirmative manner, terms this new economic phenomena as ‘Neo- feudalism’ (Dean, 2020). Neofeudalism marks the birth of this new world order which is governed by multinational technology and finance giants. Jaron Lenier who is the author of the book ‘You are not a tech gadget’, observed the emergence of peasants and lords of the internet. Such an environment has been the result of mass accumulation of wealth by organisations and then these organisations working in cahoots with the governments of the nation states where they have a market, using every politico-legal instrument to exercise control over the society which they have created. Such influence upon the world is only possible when the wealth which they have accumulated is situated beyond the reach of the governments in whose jurisdictions they are working. For example, Apple, Amazon, Microsoft, Facebook, and Google/Alphabet have trying to act as if these corporations were themselves sovereign states — negotiating with, trying to attract, and cooperating with them on their terms (Dean, 2020). These big corporations have managed to create a feudal system where they have created platforms which they have a monopoly over, generated profits by capitalising on the data which is provided to them by their consumers and created a notion that such data exists in nature for free but instead it is created by

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them. Essentially equating data with the concept ‘terra nullius’ or ‘no man’s land’, which was the justification used by the British to plunder the land and its resources according to their whims and wishes (Cohen, 2018). If historical colonialism occupied territories, their resources, and the bodies that worked on them, data colonialism is trying to capture the capture and control of human life itself through appropriating the data that can be extracted from it for profit. If that is the premise on which data colonialism is built on, then just as historical colonialism created the fuel for industrial capitalism’s eventual rise, so too is data colonialism paving the way for a capitalism based on the exploitation of data. Human life is quite literally being invaded to transform it into capital, by collecting extensive amounts of data on human activity which is being used as direct fodder to expand the capital of these Big Tech companies (Couldry, et al., 2020). This vision of big tech companies is further being realised by IOT devices. The most appropriate explanation of this nexus between IOT devices and data colonialism is given by IBM where they state that by turning the human environment into a network of listening devices that capture data about all activities, IBM suggests that they can “liquify” areas previously inaccessible to capital. The company put it this way: “Just as large financial marketplaces create liquidity in securities, currencies and cash, the IoT can liquify whole industries, squeezing greater productivity and profitability out of them than anyone ever imagined possible.” In this view, every layer of human life, whether on social media platforms or not, must become a resource from which economic value can be extracted and profit generated.” Data colonialism is concerned with the external appropriation of data on terms that are partly or wholly beyond the control of the person to whom the data relates. This external appropriation is what makes possible such data’s exploitation for profit. This is progressive opening up of human life to externally driven data extraction is what we mean by the capitalization of human life without limit. It is important to analyse the above

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statement in light of Marx’s established insight that capitalism has always sought to manage human life for the maximization of profit; at the same time, colonialism absorbs new aspects of human life streams directly into the productive process. It is not that social limits to life’s capitalization can no longer be imagined but as things currently stand, much corporate discourse fails to recognize any limits except those that it sets itself. Thus, resisting data colonialism becomes the only way to secure a human future not fused in dissoluble with capitalism, indeed, the only way to sustain the value that capitalism claims to promote that is human freedom. Bearing in mind the harms of ‘data colonialism’ - this portion tries to analyse the naturalisation of data which is a precondition to ‘data colonialism’, elaborates upon the digital domination and how such domination is used by big tech firms to collect data and articulates upon the considerations which need to be kept in mind when discussing the notion of ‘decolonising data’. The Naturalization of Data Capture of personal data of many sorts is appropriated for ends which are not themselves “personal.” Personal data includes all data of actual or potential relevance to persons, whether collected from them or from other persons or things. For personal data to be freely available for appropriation, it must first be treated as a natural resource, a resource that is just there. Extractive rationalities need to be naturalized or normalized, and, even more fundamentally, the flow of everyday life must be reconfigured and represented in a form that enables its capture as data (Couldry, et al., 2019). Jason Moore argues that capitalism historically depended on the availability of cheap nature: natural resources that are abundant, easy to appropriate from their rightful owners, and whose depletion is seen as unproblematic, but whose “availability to capital” itself had to be constructed through elaborate means of marketization. So too with what we now call “personal data,” but which is the outcome, not the precondition or prior target, of a newly “computed sociality” (Alaimo, et al., 2016 pp. 175-191). Natural resources were and are not cheap per se, but legal and philosophical frameworks were established to

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rationalize them as such, on the basis that they were “just there.” Only later did the costs to humanity of treating natural resources this way come to be appreciated. The apparent naturalness of data colonialism’s appropriations relies also on a large amount of ideological work, just as historic colonialism did. Consider the business cliché that data are “the new oil,” lost to humanity until corporations appropriate it for some purpose. This rests on the construction of data as a “raw material” with natural value, enabling data as a valuable resource of the 21st century becoming a new type of raw material that’s on par with capital and labour”. Through this informal comparison, the links of data back to a prior process of data collection (i.e., appropriation) are complicated. A blurring is achieved metaphorically through the common idea that data are “merely” the “exhaust” exuded by people’s lives, and so not capable of being owned by anyone. To accomplish the appropriation of personal data, data colonialism relies on other extractive rationalities as well. There is, as many critics have noted (Fuchs, 2017; Scholz, 2013)—and this is what we share with earlier debates a social rationality that treats much of the labour that contributes to data extraction as value-less, as “just sharing.” There is also a practical rationality that frames corporations as the only ones with the power and capacity to process (and thus appropriate) data. Simultaneously, a political rationality operates to position society as the natural beneficiary of corporations’ extractive efforts, just as humanity was supposed to benefit from historical colonialism as a “civilizational” project. Digital Coloniality and Corporate Exceptionality in Utility: Corporate Hostage of Specialities Digital Domination and Modes of Extraction Under digital colonialism, foreign powers, led by the US, are planting infrastructure in the Global South engineered for their own needs, enabling economic and cultural domination while imposing privatised forms of governance. To accomplish this task, major corporations design digital technology to ensure their own dominance over critical functions in the tech

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ecosystem. This allows them to accumulate profits from revenues derived from rent in the form of intellectual property or access to infrastructure and surveillance in the form of Big Data. It also empowers them to exercise control over the flow of information (such as the distribution of news and streaming services), social activities (like social networking and cultural exchange), and a plethora of other political, social, economic and military functions mediated by their technologies. The control of code is foundational to digital domination. In Code and Other Laws of Cyberspace, Lawrence Lessig famously argued that computer code shapes the rules, norms and behaviours of computer-mediated experiences in ways similar to architecture in physical space (e.g. imperial railways designed for colonisation) (Reidenberg, 1998). ‘Code is law’ in the sense that it has the power to usurp legal, institutional and social norms impacting the political, economic and cultural domains of society. This critical insight has been applied in fields like copyright, free speech regulation, Internet governance, blockchain, privacy, and even torts (Kwet, 2019 pp. 3-26). What has been missed, however, is how US dominance of code – and other forms of digital architecture – usurps other countries’ sovereignty. Digital forms of power are linked through the three core pillars of the digital ecosystem: software, hardware and network connectivity (Kwet, 2019). Software is the set of instructions that define and determine what your computer can do. Hardware is the physical equipment used for computer experiences. The network is the set of protocols and standards computers use to talk to each other, and the connections they make. Software functions as the coded logic that constrains and enables particular user experiences. For example, software determines rules and policies such as whether or not users can post a message anonymously at a website, or whether or not users can make a copy of a copyright-restricted file like an e-book. The rules that a programmer codes into the software largely determine technological freedoms and shape users’ experiences using their devices. Thus, software exerts a powerful influence on the behaviour, policies and freedoms of people using digital technology. Control over software is a source of digital domination primarily exercised through software licences and hardware ownership. Free Software

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licences allow people to use, study, modify and share software as they see fit (GNU Project for example). By contrast, non-free software licences grant a software designer control over users by precluding the ability to exercise those freedoms. With proprietary software, the human readable source code is closed off to the public, and owners usually restrict the ability to use the software without paying. In the case of Microsoft Windows, for example, the public must pay for the programme in order to use it, they cannot read the source code to understand how it works, they cannot change its behaviour by changing the code, and they cannot share a copy with others. Thus with proprietary licensing, Microsoft maintains absolute control over how the software works. The same goes for other proprietary apps, like Google Play or Adobe Photoshop. By design, non-free software provides the owner power over the user experience. It is authoritarian software. Control over hardware is a second source of digital domination. This can take at least three forms: software run on third-party servers, centralised ownership of hardware, or hardware designed to prevent users from changing the software. In the first scenario, software is executed on someone else’s computer. As a result, users are dispossessed of their ability to control it. This is typically accomplished through Software as a Service (SaaS) in the cloud. For example, when you visit the Facebook website, the interface you are provided executes on third-party hardware (i.e. on Facebook’s cloud servers). Since, users cannot change the code running on Facebook’s servers, they cannot get rid of the ‘like’ button or change the Facebook experience. ‘There is no cloud’, the saying goes, ‘just someone else’s computer’. Corporations and other third parties design cloud services for remote control over the user experience. This gives them immense power over individuals, groups and society (Stallman, 2018). In the second scenario, people become dispossessed of hardware ownership itself. With the rise of cloud computing, it is possible that hardware manufacturers will soon only offer low-powered, lowmemory devices similar to the terminals of the 1960s and 1970s and computer processing and data storage will be primarily conducted in centralised clouds. With end-users dispossessed of processing power and storage, software and data would be under the absolute control of the owners and operators of clouds (Pierce, 2018). In the third scenario, hardware is

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manufactured with locks that prevent users from changing the software on the devices. By locking down devices to a predetermined set of software choices, the hardware manufacturer determines which software is allowed to run when you turn on your device (Sullivan, 2008). Thus, hardware restrictions can prevent the public from controlling their devices, granting device manufacturers power over users. Control over network connectivity is a third source of digital domination. Net neutrality regulation proposes that Internet traffic should be ‘neutral’ so that Internet Service Providers (ISPs) treat content flowing through their cables, cellular towers and satellites equally. According to this philosophy, those who own the pipes are ‘common carriers’ and should almost never be allowed to manipulate the data that flows through them. This constrains the ability of wealthy media providers to pay for faster content delivery speeds than less wealthy providers (such as grassroots organisations, small businesses, and common people). More importantly, by treating traffic equally, net neutrality prevents network discrimination against various forms of traffic critical to civil rights and liberties. And political lobbyists manage to persuade their governments around the to abolish this principal which is protecting the users of internet from paying extra to access the internet as it is now, this will provide immense control to ISPs who can then censure the content which is watched by the general population. This monopoly over resources enables the big tech firms to freely extract mass amounts of data through the software which they employ and distribute to their consumers. For example, social media platforms such as Facebook and Twitter act as a domain where people can interact with other people essentially giving people a window as to what happens in their everyday life, much of which was outside the scope of these companies earlier. What they are doing is the appropriation of the social itself (Arvidsson, 2016 pp. 3-23). Since these social media platforms, to improve the engagement of their existing users, encourage their users to put out endless amounts of content, such a philosophy does away with a limit to facet of the human life which can be appropriated. As mentioned earlier about in this portion about the extraction of data via the means of IOT devices, this has given rise to a new trend of self-data or voluntary data

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collection as a requirement of their labour or other important contractual commitments, such as insurance or social security (Levy, 2015 pp. 160-74). For example - Amazon has been planning to introduce a four-camera system which will track their drivers and inform the management when the drivers look away from the road over speed or even yawn; a 2019 Insider Report claimed that Amazon is working on devices to track their workers activities with respect to the time they spend not working on their task when they are not working or when they are indirectly not working, so this way the company would fire the employees if they don’t match the productivity standards set by the company. Amazon has been able to get away with all these invasive practices without anyone batting an eye because the data they are collecting does not come under the definition of “private data” and does not lead to violation of their workers privacy under law and hence face no liabilities when they delve into such unscrupulous practices. Paraphrasing Frances Haugen, who is the whistle blower behind Facebook’s corrupt practices, in an interview revealed that there were conflicts of interest what was good for the company and what was good for the public and Facebook over and over again chose to favour their interest (CBS, 2021). In a report revealed by her they quoted themselves to be the best in the world at filtering out posts which incite hate and violence but they themselves chose to do nothing about it because they know that such posts increase user engagement. A 2019 internal report by Facebook which was obtained by Haugen, claimed that a few parties complained to Facebook to re-write its algorithm which was forcing to add more negative words on their communications on Facebook leading them into more extreme policy positions, thus leading to the creation of more polarised world as long it benefits the interest of Facebook. The Epistemic Monopolization of “Needs” and “Wants”: Privity and Public Vicinity Decolonizing data Even before the eruption of the Facebook/Cambridge Analytica scandal, there were signals of a growing willingness of regulatory bodies, especially in Europe, to challenge the great powers of data colonialism (for example, Google and Facebook). However, the Cambridge Analytica scandal provoked a crisis of

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higher intensity: instability in tech-sector share prices, a popular movement (on social media, of course) to #leavefacebook, calls in the mainstream press to learn again the lesson of how the nineteenth century restrained the raw injustices of early capitalism, and even an editorial in the Financial Times that entertained the case for “everyone to leave Facebook” (Couldry, et al., 2020). It could be proposed to step aside and let the government fix the problem, with the help of robust regulation. But this response risks missing the bigger picture entirely. Suppose regulators did tame the raw force of data colonialism into a more measured pattern of data extraction. Suppose that users generally did become less trusting of data corporations’ motives, puncturing the more obviously self-serving ideologies of the social quantification sector. Suppose that Facebook or even Google’s data harvesting power was opened up to various forms of public use and benefit. What these changes still would not touch would be the strategy of data colonialism as a whole to build a new social and economic order based on data appropriation. It is this larger narrative of transforming life through data that we are told is impossible to halt, because it is driven by a “technological momentum” that is “inevitable.” (Kelly, 2016). The notion that datafication is inevitable is, as we noted previously, a myth of data colonialism. But how to resist it is a relevant policy question altogether. As already stated earlier in the portion, colonialism is about appropriation; whereas historical colonialism appropriated land, resources, and bodies, today’s new colonialism appropriates human life through extracting value from data. Platforms play a key role in making our participation in data relations seem natural. In the initial portions, it was emphasised that there was something even more fundamental to digital colonialism: the drive to capitalize human life itself in all its aspects and build through this a new social and economic order that installs capitalist management as the privileged mode for governing every aspect of life. This annexation of human capital is what links data colonialism to the further expansion of capitalism. This is the fundamental cost of interacting with the world through the technology present in our hands.

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Confronting data colonialism as a whole is seriously inconvenient. That is because data colonialism’s model for organizing things underlies countless business models and everyday resources. Hence, the point of opposing colonialism was never immediate economic success. Over the past two decades, billions of people have started to organize much of their personal lives around the infrastructures of digital platforms and other services that depend on seamless flows of data. This problem of inconvenience drives the temptation toward partial solutions—for example, the idea that we just need better networks, perhaps networks with an element of public purpose or, indeed, that we should follow big tech’s own proposals for how to use their products in ways that enhance “digital wellness.” (Srnicek, et al., 2017). Better data-driven networks will not save us. However, by attempting to reform a particular network within a wider system of platforms, we are not challenging the foundations of the system but merely finding alternative ways to replicate it. It is no part argument to suggest that people should instantly and completely disconnect from the infrastructures of connection that have been built over the past two decades. Hundreds of millions of people have adapted their lives in response to the existence of platforms, and much use of social media and data processing is productive and well-meaning. But if the larger outcome of data infrastructures’ use of us is a wider order that over time dismantles human autonomy, there can be no neutral use of those tools; there can be no benefits from the use of platforms that don’t at the same time reproduce, at root, is the larger quotient of concern to develop risksensitive approaches. Hence to bring any substantive change we need to reimagine our data relations with the devices we choose to interact with. The order of data relations relies on the unlimited possibilities of data processing generated by the infinite connectivity of the contemporary world. Data relations rely on removing all limits to data appropriation and thus building an expanding, knowledge-based social and economic order. From simple starting points (computer’s data capture, the connect ability of computers, and the information processing and monitoring that together they enable), institutions and systems are acquiring the capacity to govern life in a completely new way.

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The unlimited targeting of persons by marketing messages is not “personalization”. The pursuit of continuous automated surveillance does not really bring the democratization of health or the educational promotion of digital citizenship. This reimagining of our existing relations to data is much more than saying no. Rejection of the idea that no obstructions must be allowed to the flow of data can be formulated positively as the affirmation of what Janet Vertesi calls this the principle of seamfulness (Vertesi, 2014). This is the idea that, instead of prioritizing the seamless movement of data, transfers of data must first always be responsible and accountable to those affected by that data. Affirming “seamfulness” as a positive principle also suggests the wider possibility of building a whole set of ecological principles that would challenge the naturalness of data colonialism’s so-called ecology. These would include defending the possibility of autonomous human agency and human relations, on which data practices have relentless effects (Couldry, et al., 2020). Data colonialism proposes a connected world that appears to know itself through its absolute connect ability and through unfettered data flows between all its points (whether living or not). But this methodologically clashes with a much older vision of how human life should be, an ecological view of human life, unchallenged until very recently, which assumes that human life, like all life whatever its limits, constraints, and deficits is a zone of open-ended connection and growth. This is the kind of view which argues for humans to have complete autonomy over their actions and it should be societal instruments and human forces which should influence the development of humans rather than a few corporations who have managed to monopolise this world’s data. Human centric Rationality How can human beings exercise freedom of choice in societies in which processes of discrimination and opportunity segregation operate in an algorithmic shadow zone? We have in this small part presented a general non-Eurocentric approach to

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rationality, for merely critical review and not to show any policy acceptance to the same. Critically, Amartya Sen considers that the account of freedom starts, from the question of whether daily life gives to an individual “the actual ability to achieve those things that she has reason to value.” (Sen, 1999). Economic thinking, he argues, assumes away much of the complexity of individual reasoning, just as do the hollowed-out models of human agency in much contemporary social science. Sen argues that we need a better and more inclusive model of human rationality if we are to avoid endangering “the conditions and circumstances that ensure the range and reach of the democratic process.” (Sen, 2002). In line with which data science, and the wider “science” of Big Data, can be construed to be in need of a similar challenge. The method and goal, then, is not to abandon the idea of rationality (or order) but to reanimate it in terms of different values. The goal is not to abandon rationality, order, or even the claim to universality but to reject the highly distinctive claim to absolute universality that characterizes European modernity (Couldry, et al., 2020). The West’s much heralded liberal “pluralism” has always, as Quijano explains, ruled out the pluralities that it found inconvenient (Quijano, 2007 pp. 168-178). The ideologies of data colonialism are no different, insisting that the whole world every part of the social world, on every possible scale, and at every possible layer of meaning can be organized in accordance with a single integrated scheme or totality that categorizes all people, acts, and possibilities singly and in opposition to one another. There is no empirical test that could verify this vision of social knowledge: it has authority only by virtue of being imposed on a world reconfigured to its own image. The practical starting point for resistance to data colonialism at last becomes clear. It is to articulate a vision that, against the background of Big Data reasoning, will appear counterintuitive to many, a vision that rejects the idea that the continuous collection of data from human beings is a rational way of organizing human life. From this perspective, the results of data processing are less a natural form of individual and societal selfknowledge than they are a commercially motivated “fix” that serves deep and partial interests that as such should be rejected and resisted. It may help here to listen to those who have fought

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for centuries against capitalism and its colonial guises. Leanne Betasamosake Simpson reflects on rationality but from the perspective of human meaning. She affirms a meaning that “is derived not through content or data or even theory but through a compassionate web of interdependent relationships that are different and valuable because of difference.” Why difference exactly? Because only by respecting difference do, we stand any chance of not “interfering with other beings’ life pathways” and their possibilities for autonomy. To add on the same, it becomes important to estimate the role of societies. There cannot be absolute technocratic aspects. There is also a big need to address such a kind of issue, which – at least for India being the target of assessment – must be dealt with developing solutions, which decolonise – and provide affirmative solutions catering to Indian interests, realities and ecosystems, combined. The same has been dealt in the forthcoming sections.

The Problem of ‘Omnipotence’ and ‘Omnipresence’ in Sectors and their Intersectional Relationship What are Omnipotence & Omnipresence? • Omnipotence is the quality of having unlimited or very great power. Omnipotence is a virtue that is associated with the idea of unlimited potential to execute. • Omnipresence is the property of being present anywhere and everywhere, unlimitedly. How that “unlimited” is defined and is structuralized, in both of the cases, is a matter of review. Ben Thompson proposes that the rise of computers made humans omnipotent (Computers can do anything), the rise of the internet made humans omniscient (Computers know everything) and the rise of mobile computers – most particularly smart phones – made humans omnipresent (Computers are everywhere) (Thompson, 2014). The undesirable aspects of omnipresence can be summed up by a simple hypothetical example that may not be hypothetical anymore: imagine a network of spies that are constantly measuring certain aspects of your existence, like your health, your emotions, what you are doing, and more. This information is then be sold to someone that may find value from it - like an

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advertising agency that can use this information to guess what products you are more likely to buy, and start sending you pamphlets and magazines related to those products. How algorithms are shaping our life From the moment we wake up to the moment we go to sleep, an algorithm tracks and logs details about us, and uses this information to suggest actions and activities to us (Exposure Labs, 2020). In 2018, a technology magazine titled The Verge reported on an internal video made by Google which envisioned a future where algorithms would have complete access and control of data, and how this data could help Google guide individuals to fulfil certain goals or actions that are in line with Google and the individual’s missions. For example, an environmentally conscious individual may be suggested to buy groceries from a local vendor and opt for an Uber Pool in order to minimize their carbon footprint. While the complete control of a user’s data is portrayed in a good light in this example, this video also touches on how the algorithm can shape user opinions ahead of major decisions like elections to bring the world more in line with Google’s vision. Algorithms are already doing something like this today by: - Telling us what news articles to read, and based on the ones we spend more time on, it’ll serve us ads later on in the day. These ads may shape our political perspectives, understanding of basic and complex issues and thus may even decide the outcomes of our country’s next election. - Algorithms that are being used in healthcare settings may decide which medicine we should be prescribed, and what health complications we may be prone to in the future. Recently an algorithm was deployed which could assess a patient’s risk of suicide (Goldhill, 2018), while algorithms are also being used to study and point out cancers and tumours on MRI scans and reports (Oren, et al., 2020). Your life may literally be dependent on an emotionless machine within the next 50 years. - Algorithms are also being used to make hiring and firing decisions, so in a few years your livelihood may also be dependent on how good your resume looks to a machine.

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The growing usage of algorithms everywhere has increased privacy concerns as well. How your data is captured and stored, and who has access to this data is a cause for worry for many different individuals. Imagine if the algorithm from the hospital wrongly marks you at suicide risk, and this information is passed on to the algorithm that is being used to select candidates for an interview for your dream job, another example is if an algorithm is used to analyse which employees or candidates have higher probabilities of undergoing a major life-change within the next year (like pregnancy, marriage, etc). These algorithms may discard your candidacy because it does not see you as a long-term addition to the workforce. Ubiquitous Computing Ubiquitous computing refers to the incorporation of technology “everywhere, everything, all of the time”, it bears the idea to make computing resources available anytime and anywhere, freeing the user from the constraint of interacting with ICT devices explicitly via keyboards and screens. Ubiquitous computing requires the creation of computers that are small enough to be embedded into everyday objects, which will subsequently augment the objects utility and purpose, making it more useful and capable, this is something that is becoming a reality already, progress in semiconductor design has enabled the miniaturization of computers to the extent that we can now wear them on our writs. The peak of ubiquitous computing will be when services are made available irrespective of the object or platform that is being used (Sen, 2010). Presently we are using computers to manipulate and access services in the world around us, ubiquitous computing will enable the transformation of the world into a network of computers itself, enabling humans to carry out those functions that were previously done with a desktop system to now be done without the need of any tools. While ubiquitous computing can be largely beneficial, there are certain challenges that are associated with it: 1. Impact on Privacy: Ubiquitous computing will require daily objects being embedded with computers that can procure, process and store sensitive user information and data. If the accessibility of this data is not strict then it will be immensely

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dangerous to all. For example, if a UC System is being used by a medical team then the who sees the information exchanged, how it is exchanged and where the information is stored will are issues that need regulating and safeguards to prevent the exposure of such information. If measures and safeguards are not baked into the systems from the beginning then the user security will be put at risk. 2. Impact on Society: While UC implementations themselves are not expected to have a negative social impact, it is more dependent on how these technologies are implemented. For example, if more surveillance computers are set up in one community compared to a different one, then the implications can result in over policing. The price and pre-requisites for the use of UCs will also play a factor in how these technologies impact society. Those that are not familiar with the usage and leveraging of UCs will be put at a disadvantage from an early stage. Further, those communities that do not have access to these technologies will also face repercussions for not having access to these disruptive technologies. 3. Impact on Economy: It is expected that UC will have a beneficial effect on industry, specifically in the areas of production, logistics and commerce. UC can help sellers target customers better and help buyers make better decisions, it can also help in the automation of certain processes that will make the production process more resource efficient. However, the potential downsides of the same are that many workers may be replaced by automated computers, even outside the factory setting, the implementation of UCs can transform the workplace into an area of high surveillance and blur the boundaries between private and personal life. The goal of ubiquitous computing is to make technology as omnipotent and omnipresent as possible, and while this has the potential to improve productivity and ease-of-living, it also has the potential to infringe on privacy and negatively impact the lives of many individuals. If ubiquitous computing is to come into then certain safeguards and regulations are necessary.

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The Problem with Omnipotence and Omnipresence As mentioned above, humans have historically had the power to modify or alter the instructions that they were handed, but the current Blackbox nature of algorithms and the institutions that deploy them, our power to assert control is limited (Paine, 2017), further the continuous development and incorporation of smart devices and technologies into our daily lives is reducing our autonomy over our own data and privacy. Further, there are pertinent questions in relation to the accountability and responsibility of disruptive technologies as a whole. The fact of the matter is that the current legal infrastructure of India does not give the subjects of these algorithms (i.e., the users of the services) the power to challenge these algorithms as they are mostly deployed by large corporate technology companies like Facebook, Google and Amazon. The pervasive nature of these algorithms in our daily life has begun influencing our decisions and interactions, and although true UCs are a way away, smart speakers, and other Internet-of-things devices are becoming more and more a reality every day. The importance of safeguards The implication of unregulated, omnipotent and omnipresent technologies are as follows: - Lack of regulated data standards can lead to wide scale spread of embedded biases – leading to loss of opportunity - Lack of regulated privacy standards can allow technologies to track, record and share personal details – leading to loss of ability to control one’s information, affecting other aspects of their lives - Dominance of algorithm-based content suggestion can censor out opposing viewpoints or perspectives, leading to radicalisation, incomplete understanding of critical social issues and perpetuate socially harmful or disrupting activities. o As a corollary the incorrect censorship of harmless content could lead to the detriment of those careers that depend on these technologies (influencers, freelancers, etc.) - Lack of safeguards can result in incorrect predictions that will have disastrous results.

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The adoption of algorithms in public functions like police allocation and recidivism prediction in the United States of America has led to inequitable and prejudiced policing and jailing. Similar effects may be felt in India as it has similar social divisions and prejudices. - Lack of guidelines on accountability and responsibility can potentially lead to aggrieved parties being harmed without recourse While disruptive technologies may unlock great potential for all individuals, there are problems that grow in severity and can be detrimental if not kept in check, especially when the novel problems and issues that have arisen after the development of UCs and IoT technologies. The effects of a lack of regulation is already visible in India through the increasing division on the basis of political and religious lines that is supported through the spread of fake, sensationalised and politically manipulated information, most notably on Social Media platforms operating in the country. We are reaching a stage in technological development where the reliance on algorithms has reached a high point, that is only rising. As many technology strategists have warned, technology may soon be controlling states, rather than the other way around, something similar was even visible in the Arab Spring phenomenon of the 2010s (O'Donnell, 2011). In order to prevent this and keep the omnipotence and omnipresence of disruptive technologies in check, adopting a regulatory approach is a deemed necessity. Differentiating Neoliberal Materiality and Technological Evolution Omnipresence and omnipotence are usually led through the phenomenon of neoliberalism coupled with materialism – that the advent of technologies like AI matters as to how much exertion of influence and dependencies can be created upon the data subjects – usually human consumers. The UNESCO draft recommendation on the ethics of artificial intelligence notes down this phenomenon as well quite reasonably (UNESCO, 2021). Now, technological evolution itself has many parallels. It means that the way evolution happens, is different from how it is observed. Nevertheless, technological evolutions in various

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countries show what kind of interests and visions are led behind such kind of transformation. Technological evolution and natural evolution are different, and must not be coincided. Now, the problem with a neoliberal approach to omnipotence and omnipresence is that it exploits human dignity and can also be considered responsible for deracinating the extent of technology distancing. Considering that the extent of the ontological and epistemic roots of neoliberal materiality is not controlled shows that while omnipresence and omnipotence are reasonable conceptions, in artificial intelligence ethics, a cautious approach must be applied in regulatory theory to handle the impact of the imposed omnipotence and omnipresence. The reason is that omnipresence and omnipotence can be considered as imagined perceptions under the neoliberal approach of technology ethics, which can possibly be weaponised to create conflict economies and polities. The examples of the Syrian civil war in 2011, the Blackberry riots in London in the 2010s, the situation in Afghanistan and other parts of South Asia, where riots occur show how the factor of “presence” and “potential” can be abused. Does it mean technological evolution must be prevented? No. There may not be the perfect methods of ensuring how such evolutions are not disruptive. The aesthetics would matter, but the pragmatic impact needs to be assessed carefully, which again – can have economic, social, individual, psychological, political and even legal impacts. Risks exist, and therefore, studying them in a much effective manner is important.

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India’s Position and Status Quo The Transformation of Competition Law in India Related to Disruptive Technology History of Competition Law Policy in India The concept of consumer welfare underpins competition rules. When evaluating suspected anti-competitive behavior, competition regulators should consider total consumer welfare and economic efficiency, according to the consumer welfare criterion. Monopolies and Restrictive Trade Practices Act, 1969 The MRTP Act, 1969, was India's first attempt at competition law. The Monopolies Inquiry Commission recommended passing the MRTP Act, which became law. To combat monopolistic practices, the MRTP Act was passed. The Act was founded on the premise that increasing a company's size would have a negative impact on competition. The Sachar Committee was formed in 1978 to examine the MRTP Act and make recommendations for improvements. The committee proposed that measures relating to unfair business activities, such as deceptive advertising, be included to safeguard consumers who have previously been exposed to such tactics. According to the MRTP Act of 1969, unfair trade practices, restrictive trade practices, and monopolistic trade practices were all outlawed. A restriction on the people or classes of people who can buy or sell products was covered, as was any arrangement that restricted or was likely to restrict them in any way. Since the Indian economy was liberalized, privatized, and went global in the 1980s and 1990s, this was a critical time for India. The new economic policy decreased the government's influence and opened the door for multinational corporations (MNCs) to

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make investments in India. The MRTP Act was viewed as an impediment to private investment once the economic reforms were implemented. Because of worldwide economic changes including competition laws, parts of the MRTP Act have become out-of-date. Rather than concentrating on breaking up monopolies, focus should instead have been to promote competition. According to the government's decision, the committee was set up to investigate these concerns and come up with a new competition legislation that would work in these circumstances. In 1990, the Raghavan Committee was formed to study competition policy and law issues. The committee concluded that the MRTP Act was out of date considering India's recent economic reforms catering to liberalization and globalization. According to the Raghavan Committee, enacting new laws was preferable than modifying the current law. The Competition Act, 2002 was drafted and approved because of the suggestions made in the report. Competition Act, 2002 The Competition Act was signed into law on January 13th, 2003, after receiving the President's approval. The MRTP Act was repealed under Section 55 of the Competition Act, and cases relating to it were transferred to the Competition Commission of India (CCI) because of this Act being established to replace it. It was mandated to execute the Competition Act (Sec.7) and regulate competition in India by establishing the Competition Commission of India (CCI). On October 14, 2003, the government announced rules and procedures for selecting the chairman and other employees to constitute the first-ever Competition Commission of India (CCI). A quasi-judicial organization established in accordance with the principles of rule of law under the Competition Act, 2002, the Competition Commission of India. The following are the Act's three most notable features: 1. Section 3: Anti-Competitive Agreements

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2. Section 4: Abuse of Dominant Position 3. Sections 5 and 6: Combinations Companies are prohibited by the Competition Act from engaging into arrangements that have the potential to significantly harm competition. Only the agreements listed under section 3(3) are forbidden under the act, which are as follows: 1. Fixing the price 2. restricting or regulating the market 3. Sharing of the market and manipulation of the bids This competition appellate body, called The Competition Appellate Tribunal, was also formed (COMPAT). Following the Act's passage, many amendments were made to it. Competition (Amendment) Act, 2007 Parliament passed the Competition (Amendment) Act, 2007 in September 2007 and the President of India gave his assent on September 24th, 2007. It was argued that the commission's legitimacy was questioned in Brahm Dutt v. Union of India (Supreme Court of India, 2005) before India's highest court, and the Indian government stated about modifications and the Act was significantly changed. The modification fundamentally altered the Competition Act's regulatory framework at the time. Competition (Amendment) Act, 2009 The Act was revised once again in 2009, and on December 22, 2009, the Competition (Amendment) Act 2009 was signed into law by the President of India. The most significant change brought about by this modification was the transfer to the Competition Appellate Tribunal of all outstanding MRTC and Monopolies Act proceedings. Furthermore, under the Consumer (Protection) Act 1986, monopolistic and restrictive business practices were moved to the CCI, while unfair business practices were assigned to the National Commission.

How Indian Courts Competition Law?

have

approached

Comparative

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As a result of Article 38 and 39 of the Indian Constitution, India's competition law is based on the idea that the state should strive to improve the well-being of its citizens while also making sure that a social request is met in the most effective way possible. This means that equity, social finances, and politics should inform every aspect of national life, and the state should specifically focus its strategy on ensuring: • •

The group's tangible assets are spread so that they can best serve the interests of all members. A monetary system that does not result in a concentrating of wealth and methods of production in the hands of those who would benefit from it.

The 'rule of reason' and the 'per se rule' are the two most important components of competition law. The Sherman Act of 1890 and the well-known case of Northern Pacific Railway Co. v United States and Others (US Supreme Court, 1958) had much impetus to make in. The case of Neeraj Malhotra v. Deustche Post Bank Home Finance ltd. and others (Supreme Court of India, 2011), commonly known as the payments loan case, shows the dimensions of 'Rule of Reason' and 'Per se Rule' in India. Rule of Reason Effective use of this authority allows the Commission to implement procedures that are up to task while avoiding endless delays that are common with FTC and judicial decision-making processes. Two decisions of the Indian Supreme Court have laid forth the essential principles that the Competition Commission must follow. When the Supreme Court ruled in Rangi International Ltd. v. Nova Scotia Bank and Others, (Supreme Court of India, 2013) it said that the Commission had to give reasons for its decisions. Any legal system managed by an agency must meet this criterion to be effective. There must be a way for the courts, Prime Minister, Parliament, and the public to understand why the Commission took the actions it did. Supreme Court of India said in Mahindra & Mahindra v. Union of India (Supreme Court of India, 1979) and TELCO v. Registration

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Tribunal (Supreme Court of India, 1977) that in these instances, the rule of reason should be operative since the phrase "Restricted Trade Practices" is very wide and non-inclusive in nature. The Supreme Court of India stated in Sodhi Transport Company v. State of Uttar Pradesh (Supreme Court of India, 1986) further ruled that 'Shall be inferred' is considered as an assumption and not as evidence itself, but only characteristic on whom the burden of proof falls. Section 3(4) of the Competition Act outlines exercises that must be examined as part of the "rule of reason" examination under the Competition Act. Rule per se It has been held in several court cases that the "per se rule" does not exist in India. However, Section 19 (3) of the Act disproves the provision of per se, which is accommodated by Section 3(3) of the Act. Although the per se norm is integrated into section 3(3) of the Act, the court ruled that its significance is diminished by its connection with section 19(3) of the Act, as was the case in Neeraj Malhotra v Deustche Post Bank Home Fund Limited (Deustche Bank) and Ors (Supreme Court of India, 2011). The indirect exception to this rule is provided by Section 19(3). Even though there were two judges who disagreed, the majority found no violation of Section 3(3) of the Act. Section 3(3) of the relevant Act, according to the learned opposing judge, establishes the norm of "per se". Competence of the Current Competition Law Regime The increasingly common term “Digital Economy” is used to denote a metaphorical umbrella which basically envelopes all markets utilizing digital technologies in their operations. Key features of digital platforms include the provision of a wide range of markets, social networking sites, search engines, and payment systems (Dessemond, 2019). Digital markets, in various ways, differ from traditional/linear business models. In case of transaction platforms, firms are able to utilize price leverages on both sides of the market that they operate on, in comparison to players who operate on one-sided markets and are constrained by a unidirectional structure of price. In addition to lower costs (both fixed and variable), platforms potentially can reach out to a

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large number of customers in a comparatively shorter frame of time (Russo, et al., 2016). Platform markets are also often referred to as ‘multi-sided markets’. In simpler words, multi-sided markets are the ones where firms act as platforms while selling different products/services to customers, and where the demand from one group of customers is reliant upon the demand from another (Singh, et al., 2020). In the case of traditional markets, suppliers face the need for coordination with buyers, whereas in the case of multi-sided markets, coordination is in fact, achieved through a platform itself and through the sharing of data (Kaushik, 2019). Such markets therefore generate what economists refer to as “reciprocal positive externality between two distinct groups'' (Bhattarcharjea, 2018 p. 218). However, multi-sided markets are not confined within the binds of digital platforms alone. Through the application of the same rationale, newspapers and credit card markets can be understood to be “offline” multi-sided markets as well (Wismer, et al., 2017). In India, one of the first cases relating to two-sided markets was the MCX - NSE case (Competition Commission of India), wherein the CCI elaborated upon the concept of Network - Effects. The CCI in fact, laid down an observation that network industries vary from traditional markets as they operate upon network effects, which means that the value of a platform may increase with increase in the number of users. Further, costs and prices in network platforms might not conform to trajectories akin to traditional markets, thus such industries cannot under all circumstances, be analysed utilizing traditional economic tools like normal supply-demand curves leading towards the determination of prices in the market. Since multi-sided markets actually involve distinct consumer groups, market definitions end up becoming more complex in such markets. Oftentimes, the competition authorities discover it to be challenging to attempt the demarcation of such markets as most competition laws have been drafted bearing in mind the traditional “one-sided” market logic, instead of emergent “two-sided”. Three primary areas that need regulation & oversight at all levels are Market Definition, Predatory Pricing & Dominance. The three areas are not only concerning in the Indo-Pacific but globally.

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The concept of Relevant Market is a very important one in Competition Law that needs to be understood. The relevant market is the filter that demarcates the commercial area confined to the boundaries of which a firm’s behaviour is. When describing relevant markets as an economic concept applied in competition enforcement by authorities, it is imperative that it be borne in mind that the term needs to be interpreted through the lens of law, in order to do away with legal ambiguities. Section 2(r) of the Competition Act, 2002 states that “relevant market means the market which may be determined by the Commission with reference to the relevant product market or the relevant geographic market or with reference to both the markets”. The defining of the relevant product or the relevant geographic market happens to be the first step in figuring out dominance. Section 19 (6) and Section 19 (7) of the Competition Act, 2002 lay down the parameters of defining the relevant geographic and product markets, respectively. Much alike competition law legislations across the globe, the Competition Act, 2002 as well lays emphasis upon “substitutability” as a test for discerning the relevant market. An important tool for determination of substitutability is the “Small but Significant, Non-Transitory Increase in Price” test or the SSNIP test. In layman’s terms, SSNIP evaluates whether, for a small, yet significant price surge (of about 5% to 10%), the consumers of a specific product would shift their choices to another product or not. If the transition occurs, the two products can be considered to be part of the same market. This test is also referred to as the “Hypothetical Monopolist” test - revealing whether a relevant market is worth monopolizing over (Raychaudhuri, 2019). Irrespective of the amounts or efficiency of the tests available, inaccuracy in demarcation of the relevant market is one of the most commonplace mistakes made in competition analyses. The tumultuous discerning of accurate determination of the relevant market increases manifold complexity when it comes to digital markets. For example, Amazon has a dual role as a market & an online retailer, whereas its own products compete with other merchants utilizing the same marketplace. How are the relevant

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market(s) to be determined in such a case is a complex problem. A further problematic aspect of two-sided markets is that there exist varying groups of consumers on either sided with interdependent demand, thereby making the application of an SSNIP test difficult, while considering the profits in one or both the sides of the market, & assessing the side on which the hypothetical monopolist would raise its price. Dominance - U/s. 4 of the Competition Act, 2002 ‘dominant position’ is defined as “Position of strength, enjoyed by an enterprise, in the relevant market, in India, which enables it to (i) operate independently of competitive forces prevailing in the relevant market; or (ii) affect its competitors or consumers or the relevant market in its favour.” While, Section 4(1) provides that “No enterprise or group shall abuse its dominant position.” & Section 4(2) provides that “There shall be an abuse of dominant position under subsection (1), if an enterprise or a group (a) directly or indirectly, imposes unfair or discriminatory (i) condition in purchase or sale of goods or service; or (ii) price in purchase or sale (including predatory price) of goods or service.” In matters concerning the abuse of dominance the key focus of the competition authorities is to ensure that the application of the law does not curb the efficiency. Firms might gain market power through efficient production or distribution methods, technological & other innovations & better entrepreneurial efforts. Therefore, it is not dominance per se which is frowned upon, but the abuse of dominance, through forms of conduct specified in the aforementioned statute. The legal requisites for determination of dominance vary from country to country. Some jurisdictions infer prima facie dominance through large market shares, whereas some countries do not stipulate market share thresholds. In the Indian sub context, Section 19(4) of the aforementioned Statute lists down factors which can effectively be considered by the CCI while determining dominance,

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including market shares, size & resources of the enterprise, size of competitors, dependence of consumers on the enterprise, etc. Although market shares are an important indicator of dominance, the law in India fails to stipulate market share thresholds. The CCI can in fact, take into account all or any of the factors laid down in the aforementioned provision & cases often reveal that it is a range of factors which are assessed or need to be assessed. Predatory Pricing - In simple terms, predatory pricing would refer to below-cost pricing with the intent of driving competitors out of the market - the thought process being that once the competition is eliminated, the predator can go on to monopolize the market & recoup the losses suffered during the period of the predation. Such cases can be traced back to the early 1900s. In the Brooke Group case, the US SC laid down a two-pronged test for predation. The first step for prices to be regarded as predatory, the prices should be below “an appropriate measure of costs” (Average Variable Cost as per the Areeda-Turner Test) & Secondly, there should actually exist a “dangerous probability, of recouping the investment in below-cost prices” (the recoupment test). In Europe, the first landmark case of predatory pricing was AKZO V. Commission, where the commission did not conform strictly to the Areeda Turner test. In this particular case, the Commission held that a price would be considered predatory when it is below AVC price or it is above AVC but there is an underlying intent to eliminate rivals (predatory intent) subject to being proved through documentary as well as circumstantial evidence. The recoupment of losses does not happen to be an essential criterion in Europe. The same was reiterated again in the Wanadoo case, where the Court decided that – “Demonstrating that it is possible to recoup losses is not a necessary precondition for a finding of a predatory pricing”. In India, Section 4(b) of the Competition Act, 2002 defines predatory price as “a price, which is below the cost, as may be determined by regulations, of production of the goods of provision of

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services, with a view to reduce competition or eliminate the competition”. The concepts of costs are further elaborated in the Determination of Cost of Production Regulations, 2009 adopted by the CCI. As per this particular regulation, cost can generally be understood as “AVC as a proxy for marginal cost”. However, the Commission may “Depending on the nature of the industry, market and technology used, consider any other relevant cost concepts such as avoidable cost, long run average incremental cost, market value”. Therefore, in India the AVC is used as the accepted measure of cost, barring exceptional cases. Although the Indian Law does not use the term recoupment & the CCI technically is not required to prove the same, cases decided by the CCI have considered the concept. The CCI has in fact, identified three conditions for predation. 1. That the prices of the goods or the services are below the cost of production, 2. This low price is charged with the “object of driving competitors from the market”; & 3. There is significant planning to “recover the losses if any after the market rises again and the competitors have already been forced out.” The Mystery of Assessment of Dominance & Abuse in Platform Markets - The Cab Aggregator Disputes On 3rd September, 2019, the Indian SC reopened an investigation into the Uber matter through the dismissal of an appeal filed by Uber against the order of the Competition Appellate Tribunal (COMPAT). Since 2015, the Commission has taken into account numerous allegations against Uber & Ola whose businesses are based on the aggregator model. This model is an example of a two-sided platform as well, which benefits two or more parties. The companies do not own the vehicles but use the internet & a smartphone-based application in order to connect drivers with customers seeking cabs. Out of the fare paid by the passenger, the company retains a percentage & the rest is retained by the driver. Cases filed against these companies have

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included allegations of abuse of dominance by means of predatory pricing & other anti-competitive behaviour. The CCI’s order in the Ola & Uber cases indeed reflect the challenges faced in regulation of the platform markets. The CCI rejected the claims in almost all of the cases, primarily on the ground that Ola & Uber did not enjoy dominance in the market. The decision of the Commission has caused much debate. In recent years, quite a number of reports have been published by antitrust organizations & authorities as well as independent experts all over the world. Notwithstanding, none of the existing Indian laws/regulations holistically award attention to competition issues in digital markets. In view of the rapid growth of the digital & disruptive markets, there is an urgent need for the framing of guidelines with respect to the same.

Scope of the Information Technology Act, 2000 on Disruptive Technologies In January 2005, the government established an expert group to examine the IT Act. The group consisted of members from the government, the information technology industry, and legal experts, among others. It discovered significant flaws in the current Act and issued a report in August 2005. It was recognized that several amendments to the current IT Act, 2000 were necessary considering worldwide and national trends, particularly in the field of data protection and privacy. They noted that the discipline of cyberlaw is still in its infancy, with expertise in its development and application still growing globally, and particularly in India. The committee proposed that the IT Act be technology neutral after careful analysis and debate. It reviewed data protection and privacy regulations and suggested stringent restrictions for the management of sensitive personal data. The committee examined the topic of intermediary responsibility and proposed modifications based on the European Union's E-Commerce Directive. It recommended harsh penalties to deter child pornography and offered suggestions about computer-related crime and electronic evidence.

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Disruptive technology The buzzword "disruptive innovation" appears to be snatching up a sizable portion of space in prominent newspapers and media publications. Ride-hailing applications such as Ola and Uber, online marketplaces like Amazon and Flipkart, instant communication apps such as WhatsApp and WeChat, and online hospitality platforms such as Airbnb, and many others, have become extremely pervasive in our lives. However, what does this popular term truly mean? Disruptive technology can be defined in the available literature as the introduction of a new product/service into a market that, in addition to satisfying the fundamental demands of an existing value network, also adds some extra value, therefore replacing the existing competitors and value network. These disruptive entrepreneurs generally prioritize "innovation" and are therefore able to rapidly build a huge user base and amass massive volumes of consumer data for their product or service. These disruptive entrepreneurs generally prioritize "innovation" and are therefore able to rapidly build a huge user base and amass massive volumes of consumer data for their product or service. The important topic that is being argued worldwide is whether such acquisition, access, and use of consumer data by digital companies, particularly disruptive innovators, might bestow market power on them, enabling them to misuse their market position. When examining the Indian competition landscape, the wave of digitization and ever-evolving technology has not only altered the nature of markets and consumer behavior, but also revealed the critical role of "innovation" in determining the degree of competition in markets, both in competition regulation and merger control. A close review of the Competition Commission of India's (CCI) jurisprudential trend in digital and innovation markets reveals that, except for a few instances, the regulator has largely taken a non-interventionist approach in evaluating anti-competitive

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harm and has recognized the critical role of information technology in nascent markets as a competitive advantage force. In the e-commerce arena, the CCI has repeatedly maintained that online marketplaces such as Amazon, Flipkart, and other B2C platforms, as well as offline marketplaces such as conventional brick and mortar stores, are just two distinct distribution channels inside the same retail trade market. Globally, the increasing increase in mergers and acquisitions activity in technology-driven sectors has generated concerns about competition legislation and data protection. Access to highly specialized consumer and other types of data by high-tech companies has condensed the interface between competition and data protection rules and demonstrated that, while disruptive innovation in digital markets could seem to have escaped full-fledged antitrust scrutiny with a few notable exceptions, it has not entirely evaded full-fledged antitrust scrutiny. The CCI has always recognized the complexities and immaturity of digital marketplaces in India, as well as the critical role of innovation in novel and creative business models and products. What becomes a disruptive idea: Three litmus tests Plenty of the early ideas that become sustaining breakthroughs might just as easily become disruptive business strategies with far more growth potential. However, the molding process must be handled actively and not permitted to run on autopilot. Executives must address three sets of questions to assess if a concept has the potential to be disruptive. The first examines if the concept has the potential to create a new market disruption. This requires the fulfillment of at least one, and in most cases both, of the following two conditions: •

Is there a significant group of individuals who have lacked the funds, equipment, or skills necessary to perform this task independently, and as a result have gone without or had to pay someone with greater experience to perform it for them?

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•

Is it necessary for customers to visit an inconvenient, centralized location to use the product or service?

If the technology can be evolved in such a way that a huge population of less skilled or wealthy people can begin owning, including using something which was previously only available to more skilled or wealthy people in a centralized, inconvenient location, then the idea has the potential to evolve into a new market disruption. The second set of questions examines the possibility of a disruption at the low end. This is feasible if the following two criteria are satisfied: Are there clients at the low end of the market who would gladly pay a lower price for a product with less (but adequate) performance? IT Act, 2000 and Disruptive Technology Can we develop a business strategy that enables us to generate attractive profits while maintaining the discount prices necessary to capture the business of these underserved clients at the bottom end? Frequently, the breakthroughs that allow low-end disruption include advancements in manufacturing, service, or business processes that enable a firm to make attractive returns on reduced gross margins, along with procedures that accelerate asset turnover. Once an invention has passed the new-market or low-end test, a third essential factor, or litmus test, must be applied: Is the technology disruptive to all the industry's key incumbent firms? If it looks to be profitable for one or more of the industry's major players, the odds will be set in that firm's favor, and the new player is unlikely to win. If a concept fails to pass the litmus tests, it cannot be transformed into a disruptive force. It may have potential as a sustaining technology, but in such a scenario, we would assume that it could not serve as the foundation for an entrant company's small business.

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Scope of IT Act on Disruptive Technologies like Blockchain What is blockchain and how safe is it? As the name implies, this technique is built on a chain of blocks. This technology dates all the way back to 1991. Stuart Haber and W. Scott Stornetta were the first to consider inventing a system that would use cryptography to encrypt data in tiny digital blocks. These blocks are composed of codes that safeguard the information not just for security purposes but also to date stamp it for future reference. Thus, not only the data itself is secured, but also the length, date, and temporal elements of the data. Blockchain technology is built on a peer-to-peer distributed ledger system. It is quite improbable that someone will tamper with the data that has been protected. In other terms, a peer-topeer system ensures that the information submitted to the ledger is accessible to and kept on any computer system connected to the network. Additionally, because information is contained in these digital blocks, any information that must be updated would require the user to change not just one block containing that piece of information, but all the blocks connected to that chain. If we continue discussing the technical elements for the sake of comprehension, it is critical to grasp a phrase called Hash Function. A hash function is a function that, when given an input, returns an output in the form of code that is unique for each input. This function is defined to the blocks produced via the use of Blockchain Technology. Thus, altering a block with its own hash function while also modifying the hash function of other blocks in the chain is a completely different ballgame. But without assistance from numerous persons or an incredible level of expertise in this sector, the concept of information being altered under Blockchain Technology cannot be implemented. Even though there is now no legal authority for blockchain technology, it poses numerous intriguing legal issues that should be explored. Generally, however, assessing the legal ramifications of the blockchain outside of a specific use case is

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more difficult than studying the same issue with Bitcoin. This is because Bitcoin is a specialized use of blockchain technology, but blockchain technology may be used in virtually any situation. When blockchain technology is used in regulated sectors, it triggers Know Your Customer (KYC) regulations and other reporting responsibilities such as anti-money laundering and counter-terrorist funding (depending on the country). These requirements will be difficult to satisfy when transactions are conducted on blockchains, at least in the way blockchains are currently utilized. The most likely answer to this is for players to be required to give up their anonymity on the blockchain to conduct commercial transactions. This is an issue that legislators might address. Security and Privacy The Indian Information Technology Act, 2000 (“IT Act”), for example, may be modified to do this. There are currently technical solutions in place that make this possible. Additionally, 'private' or 'permissioned' blockchains, in contrast to 'public' or 'permissionless' blockchains, govern who has access to and how they engage in the blockchain network. This is a common aspect of the several corporate blockchain solutions available on the market. The Chain Protocol, the previously described blockchain protocol aimed at financial organizations, is an example of a permissioned blockchain. The Reserve Bank of India (RBI) has imposed restrictions on virtual currencies based on Blockchain technology and issued a circular prohibiting the use of cryptocurrency in India. However, the element of tokenization-related actions is unclear. In banking legislation, it is necessary to comply with nonrepudiation standards through in-person verification, and it is difficult to apply technical solutions for such requirements, particularly for cryptocurrency based on Blockchain. Digital Signatures are a critical component of Bitcoin networks and applications. As there are currently no specifics in Schedule

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I of the Information Technology Act, 2000 on transactions involving immovable property, wills, or negotiable instruments, this clause precludes the technology from being used for such activities. Presently, Section 43A of the IT Act does not include any privacy precautions when it comes to Blockchain. The ‘Right to be Forgotten’, a prominent component of data protection law such as the Draft Personal Data Protection Bill, 2019, conflicts with the fundamental characteristic of Blockchain, which prevents data from being destroyed and ensures that its history is always available. Since the blockchain is a novel technology, most existing privacy regulations worldwide, including the Indian Information Technology Act, do not anticipate privacy safeguards for blockchain participants in this manner. Most Internet privacy regulations apply to situations in which a website or application gathers personal information from a user. For example, the IT Act governs the collection, use, and loss of private personal data or information by an organization that owns, controls, or operates a computer resource. Thus, while members would enjoy these standard Internet privacy and security, they are unlikely to apply to the blockchain due to the lack of a centralized body collecting data. According to the wording of the IT Act (section 43A), privacy on the blockchain is unlikely since there is no one "body corporate" collecting user data and "owning, managing, or operating" a computer resource (unlike a regular web service does, for instance). Rather than that, all blockchain participants exchange information, and power is decentralized. Enterprise implementations of commercial blockchain technology may thus seek to solve these privacy concerns by designing in privacy. Smart Contracts Smart contracts extend the ledger capabilities of blockchain technology by enabling for the programming of a variety of self-

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executing instructions on the blockchain. Smart contracts can automate approval procedures and clearance computations by using the blockchain as the single source of information and needing no manual verification. These operations are expensive and time consuming and are prone to delay and human error. While the term 'smart contracts' does not refer to formal contracts, they are an essential application of them. As previously stated, contractual responsibilities such as payment and delivery may be designed to self-execute when certain criteria are met, for example, payment can be made automatically after a delivery event is established (the delivery would be confirmed automatically on the blockchain). This significantly decreases the resources required for contract administration, which includes the continual monitoring and compliance with contractual commitments.1 The Information Technology Act, 2000: Sections 5 and 10A of the IT Act stipulate that a contract is assumed to be performed if it is authenticated using a digital signature in line with the IT Act's procedures. This type of authentication is accomplished using an asymmetric cryptographic system and hash function. Section 35 of the act specifies that an electronic signature may be obtained only through a Union Government-designated certifying body. As a result, a smart contract performed using a hash key intended to use this as an identifier for blockchain authentication will not be considered a digital signature, as the signature was not acquired in compliance with the IT Act. Scope of the IT Act and Internet of Things The internet of things (IoT) is a network of linked items, people, and systems that process and respond to real and virtual data. It accomplishes goals such as enhancing user experience or device and system performance. The term "Internet of Things" increasingly can be used to refer to items that communicate with one another. M2M is an acronym for machine-to-machine communication that refers to the automated transmission of data between machines, systems, individual modules, and systems – all without human involvement. The obvious

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distinction between M2M and IoT is that M2M is focused on machine-to-machine communication, whereas IoT is focused on human-to-human connection. On the other hand, the Internet of Things attempts to expand on this notion by connecting 'things' to 'systems', 'people', and the like. M2M, which has traditionally been utilized for managing inventory and fleet tracking, is increasingly acknowledged as a means of enhancing governance (Seth, 2020). By linking more objects and people to the internet via IoT and M2M, lives will be transformed, particularly in the fields of health, home automation, retail, and transportation, creating monopsonic chains of accessibility for people who will be exposed to emerging data infrastructures per se. Multiple devices communicating with one another and massive data transfer between their users would result in the exchange of personal information, causing privacy and data protection concerns. It is critical that such privacy concerns are addressed at the outset. The Indian government issued a draft ‘Internet of Things Policy' in 2015 to stimulate the invention and development of IoT-based goods particularly to meet Indian IoT demands. Agriculture, healthcare, water quality, and natural catastrophes were the primary topics addressed by the proposed policy. For the MeitY, this may be described as a dream-IoT world. The policy's aspirational draft was issued in 2015. Five years after its publication, the proposal has not matured into a real policy, nor have the organs concentrated on the demanding legal framework required for the IoT, despite widespread use. With a pandemic-affected world that is heavily reliant on the internet, artificial intelligence, the internet of things, and machine to machine (M2M), there are no explicit rules governing the latter three. While confined in the house, there is a noticeable rise in the use of various IoTs, indicating that users are exchanging a greater amount of data (Rao, et al., 2019). With many IoT devices communicating with one another via the internet, the risk of a data security breach is significant, and as more IoT devices are launched into the market, this issue will only become more complicated. Individual personal information is protected under the requirements of the Information Technology Act, 2000 ("IT Act") and the "Reasonable practices

Regulatory Sovereignty in India: Indigenizing CompetitionTechnology Approaches, ISAIL-TR-001

and procedures and sensitive personal data or information Rules, 2011" ("Rules") promulgated according to Section 43A of the IT Act (as amended). Section 43A of the IT Act addresses data protection in electronic media and provides that when a body corporate is negligent in implementing and maintaining 'reasonable security practices and procedures' in relation to any 'sensitive personal data that it engages with, possesses, or handles in a computer system that it owns, operates, or control mechanisms and such negligence results in wrongful loss Additionally, Section 72 of the ITA establishes a penalty for violating the confidentiality and privacy of acquired data. To secure the privacy and protection of the data gathered, the IoT service provider can have a custom-drafted privacy policy outlining the private information collected, the breadth and degree to which such information is used, and the safeguards in place to assure the data's security (Sarin, 2018). Additionally, the service provider may adopt carefully defined terms and conditions that generally govern liability limitations, the service provider's and consumer/responsibilities, user's indemnification, intellectual property rights, assignment/licensing, and dispute resolution. Additionally, to comply with Section 72 of the ITA, the service provider might enter into strict Non-Disclosure Agreements with its clients (Subramaniyan, 2019). Scope of IT Act in the Case of Artificial Intelligence One might claim that it is an intelligent machine capable of thinking, comprehending, and acting independently, as well as replicating some human behaviors. Thus, Artificial Intellect refers to a computer that possesses the potential and ability to solve issues that are often solved by humans using their inherent intelligence. To clarify further, the goal of developing AI is to meet the necessity and demand for automation in the fast-paced lives of humans. The repetitive activities, as well as the complicated jobs, are now being completed via the use of AI technology. The Indian legal profession is structured in such a way that the

Indian Society of Artificial Intelligence and Law Technical Report Series

whole process is carried out manually, as the nature of the legal sector is still regarded to be labor intensive. So, AI is in its infancy, since the majority of the older generation proponents believe that technology should be utilized sparingly lest it take over humanity, and thus are opposed to the notion of AI in legislation. There are several tech-savvy lawyers and large legal firms that are capitalizing on technological developments to get an advantage over their competitors. We are all aware that the Indian legal system is enormous, with our Constitution alone becoming the longest in the world; thus, in changing times, it is critical to adapt to the dynamic environment using artificial intelligence in law. By utilizing machine learning technology in the field of legal research, attorneys may get unprecedented insight into the legal realm in a matter of seconds. Cyril Amarchand and Mangaldas is one such firm that has acknowledged the AI's capabilities and is enthusiastically embracing them. CAM made history by becoming the first Indian legal practice to license "Kira," a machine learning program developed in Canada by Kira Systems. This AI-based software can do a variety of tasks, which eliminates the need for lengthy man-hours. The "Kira" system is used to analyze legal papers, detecting, and highlighting potential danger areas, as well as extracting provisions from a variety of legal documents. The 2000 Information Technology Act makes no reference to telephony or the internet. The Act's primary objective was to provide digital signatures and electronic documents with the same legal standing as paper records. The Indian Telegraph Act, 1885, is the sole piece of legislation dealing with telephony. While the internet is a late twentieth-century development, the applicable legislation dates all the way back to the nineteenthcentury colonial era. As recently demonstrated by TRAI's rejection of Microsoft's Free Basics program and heroic preservation of the concept of net neutrality, the Telecom Regulatory Authority of India (TRAI) has been forced to step in to fill the legal and regulatory gap. This begs the question about whether basic internet ideas such as net neutrality should be included into legislation rather than needing to be defined by the regulator in response to a challenge.

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While data is at the heart of AI, there is no regulation in India that protects data privacy rights. The IT Act was amended in 2009 to include section 43A, which establishes a private right of action for compensation against any business that is negligent in installing and monitoring reasonable security methods and processes for the handling of sensitive personal data, resulting in wrongful loss or gain. This clause, which established statutory tort responsibility, was intended to alleviate international data outsourcers' worries amid the outbreak of numerous identity theft cases. Apart from being confined to sensitive personal data, the clause is effectively unenforceable, as tort proceedings in India take decades to resolve. As a result, the chance of someone successfully suing a business and getting compensation under section 43A within a reasonable time is unlikely. Additionally, section 43A does not address problems such as whether individuals have privacy rights in their data, the purposes for which data may be used, and, most importantly, whether data may be sold or transferred. The IT Act's liability cap is likewise incompatible with the AI era. Section 79 of the IT Act reflects the notion, adopted from US law, that information technology service providers must be regulated similarly to telephone companies or the postal service. They are only content carriers and cannot be held responsible for the material they transport. As a result, except in very restricted situations, section 79 exempts intermediaries such as ISPs from liability for any thirdparty information, data, or communication connection made available or hosted by them. However, treating ISPs as wireless carriers is hopelessly unsuitable for emerging app-based technologies, as illustrated by Uber's assertion that it is only an aggregator and so cannot be held responsible for what transpires during the cab trip. Disruptive innovation theory has some interesting contradictions. The original idea has acquired broad acceptance

Indian Society of Artificial Intelligence and Law Technical Report Series

among practitioners, and the word disruption has been ingrained in the common corporate vocabulary. A related problem is the widespread usage of disruptive innovation/disruption as a synonym for any new danger (or significant continuing change) and the underutilization of disruptive innovation as a theoretical term. Numerous popular writers use the term "disruptive innovation" to refer to any latest tech or startup that aims to upend an industry and alter its competitive dynamics; previously successful incumbents that face difficulties or go out of business are frequently referred to as having been disrupted. Social media guidelines and IT Rules 2021 The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (Intermediary Rules 2021) were notified under Section 87 of the Information Technology Act, 2000 on February 25, 2021 by the Ministry of Electronics and Information Technology and the Ministry of Information and Broadcasting (MIB). By 2021, a soft-touch supervision mechanism for social media platforms, digital media, and over-the-top (OTT) platforms will be in place to replace the Information Technology (Intermediaries Guidelines) Rules 2011. Sec. 2(w) of the IT Act defines intermediary as any person who receives, stores, or transmits an electronic record on behalf of another person or provides any service related to that record, including telecom service providers, network services providers, internet services suppliers, web hosting suppliers and cyber cafes. Prominent social media intermediaries are those that have a notified number of registered users in India and have more than that. Additional due diligence is expected of SSMIs, including appointing specific personnel for compliance, enabling attribution of information on its platform to its first author under certain conditions, and using best efforts to identify specific types of content through the use of technology-based measures. The Rules lay forth a framework for the regulation of news and current affairs information published online as well as curated audio-visual content by online publishers. For the resolution of complaints from users or victims, all intermediaries must provide a grievance redressal process. Publishers have been given a three-tiered grievance redressal process with different degrees of

Regulatory Sovereignty in India: Indigenizing CompetitionTechnology Approaches, ISAIL-TR-001

self-regulation. Some of the key features of the Rules are mentioned below. Key features of the rules Grievance Redressal System: There is a grievance redressal system in the rules, which asks social media sites to have one so that complaints may be made to the Grievance Redressal Officer about any information published that violates public order or is not regulated in any way. A response to the complaint will be expected from the officer within 24 hours, and it will have to be resolved within 15 days. Cases involving crimes against women have a time limit of 24 hours in which to handle the complaint. Monthly reports: monthly reports on customer complaints and actions to be taken. SSMIs are expected to publish a report every month detailing how many complaints they have received and how they have responded to them. Code of Ethics: For news and current affairs publications, the following rules of ethics will be applicable: 1) the Press Council of India's journalistic behaviour rules, and 2) the Cable Television Networks Regulation Act, 1995, which outlines the programme code for cable television networks. The Rules establish a code of ethics for curated content web publishers. For example, this code requires publishing houses to: (i) classify content into ageappropriate categories, constrain children's access to ageinappropriate content, and enforce an age verification mechanism; (ii) exercise due discretion when featuring content that could jeopardise India's sovereignty or integrity, national security, or public order; (iii) consider India's many races and religions before featuring their beliefs and practises; and (iv) make content that could offend minorities available (Rajya Sabha, Parliament of India, 2020). Identify the first source of information: The first source of information must be able to be identified on the platform of an SSMI, which predominantly offers messaging services in India. Depending on the IT Act, this might be mandated by an order of a Court or a competent authority. Some of the reasons for issuing these orders will be to avoid specific offences such as those pertaining to national security, public order, and sexual assault such as those listed above. If the author can be identified with less intrusive methods, such orders will not be filled.

Indian Society of Artificial Intelligence and Law Technical Report Series

Tech-based detective mechanisms: To detect content portraying child sexual abuse and rape or (ii) information that is identical to the data previously prohibited by a court or government order, SSMIs will employ technology-based methods As a result, such measures: I must be proportional to users' rights in free expression and privacy, and (ii) must have human oversight and be evaluated on a regular basis. Key issues with the Rules A number of internet platforms have played a significant role in recent years in providing access to, easing the flow of information, and exchanging information at large scale. The function of many online platforms has evolved beyond that of information hosts to include companies that regulate how material is presented and exchanged online, as well as taking major activities in the areas of moderation, curation, and recommendations (European Parliamentary Research Service, 2021). Unease is spreading over social media's potential misuse in spreading unlawful or dangerous materials, such child sex abuse material, propaganda fueling terrorist attacks, and falsehoods and hate speech that influence elections. As a result, there have been debates over the duty and role of platforms in preventing the spread, identification, and eradication of such material. The publication of such content has been self-regulatory on several sites. However, this has sparked worries about the platforms' ability to act arbitrarily without regard for the rights of others. In light of these changes, the legal framework for intermediaries faces a significant problem in finding the proper balance between expanding the role of platforms and governments in detection, moderation, and curation, as well as protecting individual rights. Some of these concerns may be addressed by the 2021 Rules. The question of privacy: It is required by the Rules that major social media intermediaries, who primarily or exclusively provide messaging services, provide the identification of the first source of information within Indian borders (commonly referred to as traceability). Enabling this type of identification may result in a reduction in the level of privacy enjoyed by all users.If you want to track down the first person who posted anything on a messaging platform, you'll need the service provider to keep track of two pieces of extra information: one who sent the

Regulatory Sovereignty in India: Indigenizing CompetitionTechnology Approaches, ISAIL-TR-001

message, and second the exact message or specific details that define the item in issue. In order to track the original sender of every communication, this will be necessary for every message exchanged over the platform of the service provider. To be clear, it's not a technological requirement to save communication information indefinitely in order to provide messaging services over the internet. No time frame is specified in the Rules for when the message provider must verify to determine who was the original sender. As a result, messaging services will be required to retain more personal data, which goes against the spirit of the data minimization concept. When it comes to protecting personal privacy, minimisation of data collection implies just collecting as much as is absolutely essential to achieve a given data processing goal (Press Information Bureau, Government of India, 2021). New Regulations Introduced Without Proper Legislation New rules introduced without proper legislation have been criticised. Normally, only legislative action triggers new rules. Section 79 of the IT Act was used to "arbitrarily create" these new regulations without any input from the legislature. Furthermore, there was a dearth of public engagement. Section 79 of the IT Act provides 'safe harbour' protection for intermediaries, but these rules threaten that protection. In addition, the restrictions at all levels need greater expenditures and labour on the platforms' side. Preventing Access to Equal Recourse: An intermediary is required to remove content within 36 hours of receiving instructions from the government now instead of the previous 48 hours. As a result, if the intermediary disagrees with the Government's decision because of a tight deadline, it will have no recourse. In the end, the standards are aimed at social media platform users, whose growth is dependent on the platforms' growth. Enduser interests must come first, and laws and regulations must not be drafted in a way that undermines their fundamental rights. In addition, a significant requirement for law and order is needed to limit the spread of misleading information while simultaneously protecting the privacy of residents.

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Disruptive technology The buzzword "disruptive innovation" appears to be snatching up a sizable portion of space in prominent newspapers and media publications. Ride-hailing applications such as Ola and Uber, online marketplaces like Amazon and Flipkart, instant communication apps such as WhatsApp and WeChat, and online hospitality platforms such as Airbnb, and many others, have become extremely pervasive in our lives. However, what does this popular term truly mean? Disruptive technology can be defined in the available literature as the introduction of a new product/service into a market that, in addition to satisfying the fundamental demands of an existing value network, also adds some extra value, therefore replacing the existing competitors and value network. These disruptive entrepreneurs generally prioritize "innovation" and are therefore able to rapidly build a huge user base and amass massive volumes of consumer data for their product or service. These disruptive entrepreneurs generally prioritize "innovation" and are therefore able to rapidly build a huge user base and amass massive volumes of consumer data for their product or service. The important topic that is being argued worldwide is whether such acquisition, access, and use of consumer data by digital companies, particularly disruptive innovators, might bestow market power on them, enabling them to misuse their market position. Understood as "big data," this information is primarily collected from consumers or by analyzing consumer behaviour on the internet. It is then processed by self-learning algorithms to create highly specialized consumer information that can be used to raise the efficiency of existing products/services or to launch new product lines. For instance, each "keyword" entered into Amazon's search feature is recorded and analyzed in order to ascertain the consumer's shopping/viewing behaviour. Similarly, for a ride-hailing company such as Uber/Ola Cabs, it might be the frequency with which a user travels particular routes that become critical data from the service provider's perspective. When examining the Indian competition landscape, it is clear that the wave of digitisation and ever-evolving technology has not only altered the nature of markets and consumer behaviour, but also revealed the critical role of "innovation" in determining

Regulatory Sovereignty in India: Indigenizing CompetitionTechnology Approaches, ISAIL-TR-001

the degree of competition in markets, both in competition regulation and merger control. A close review of the Competition Commission of India's (CCI) jurisprudential trend in digital and innovation markets reveals that, with the exception of a few instances, the regulator has largely taken a non-interventionist approach in evaluating anticompetitive harm and has recognized the critical role of information technology in nascent markets as a competitive advantage force. In the e-commerce arena, the CCI has repeatedly maintained that online marketplaces such as Amazon, Flipkart, and other B2C platforms, as well as offline marketplaces such as conventional brick and mortar stores, are just two distinct distribution channels inside the same retail trade market. Globally, the increasing increase in mergers and acquisitions activity in technology-driven sectors has generated concerns about competition legislation and data protection. Access to highly specialized consumer and other types of data by high-tech companies has condensed the interface between competition and data protection rules and demonstrated that, while disruptive innovation in digital markets could seem to have escaped fullfledged antitrust scrutiny with a few notable exceptions, it has not entirely evaded full-fledged antitrust scrutiny. The CCI has always recognized the complexities and immaturity of digital marketplaces in India, as well as the critical role of innovation in novel and creative business models and products. What becomes a disruptive idea? Three litmus test Plenty of the early ideas that become sustaining breakthroughs might just as easily become disruptive business strategies with far more growth potential. However, the moulding process must be handled actively and not permitted to run on autopilot. Executives must address three sets of questions in order to assess if a concept has the potential to be disruptive. The first examines if the concept has the potential to create a new market disruption. This requires the fulfilment of at least one, and in most cases both, of the following two conditions: Is there a significant group of individuals who have lacked the funds, equipment, or skills necessary to perform this task independently, and as a result have gone without or had to pay someone with greater experience to perform it for them?

Indian Society of Artificial Intelligence and Law Technical Report Series

Is it necessary for customers to visit an inconvenient, centralized location in order to use the product or service? If the technology can be evolved in such a way that a huge population of less skilled or wealthy people can begin owning, including using something which was previously only available to more skilled or wealthy people in a centralized, inconvenient location, then the idea has the potential to evolve into a new market disruption. The second set of questions examines the possibility of a disruption at the low end. This is feasible if the following two criteria are satisfied: Are there clients at the low end of the market who would gladly pay a lower price for a product with less (but adequate) performance? IT Act, 2000 and disruptive technology Can we develop a business strategy that enables us to generate attractive profits while maintaining the discount prices necessary to capture the business of these underserved clients at the bottom end? Frequently, the breakthroughs that allow low-end disruption include advancements in manufacturing, service, or business processes that enable a firm to make attractive returns on reduced gross margins, along with procedures that accelerate asset turnover. Once an invention has passed the new-market or low-end test, a third essential factor, or litmus test, must be applied: Is the technology disruptive to all of the industry's key incumbent firms? If it looks to be profitable for one or more of the industry's major players, the odds will be set in that firm's favor, and the new player is unlikely to win. If a concept fails to pass the litmus tests, it cannot be transformed into a disruptive force. It may have potential as a sustaining technology, but in such a scenario, we would assume that it could not serve as the foundation for an entrant company's small business. Scope of IT Act on Disruptive technologies like Blockchain What is blockchain and how safe is it? As the name implies, this technique is built on a chain of blocks. This technology dates all the way back to 1991. Stuart Haber and W. Scott Stornetta were the first to consider inventing a system that would use cryptography to encrypt data in tiny digital blocks. These blocks are composed of codes that safeguard the information not just for security purposes but also to date stamp

Regulatory Sovereignty in India: Indigenizing CompetitionTechnology Approaches, ISAIL-TR-001

it for future reference. Thus, not only the data itself is secured, but also the length, date, and temporal elements of the data. Blockchain technology is built on a peer-to-peer distributed ledger system. It is quite improbable that someone will tamper with the data that has been protected. In other terms, a peer to peer system ensures that the information submitted to the ledger is accessible to and kept on any computer system connected to the network. Additionally, because the information is contained in these digital blocks, any information that has to be updated would require the user to change not just one block containing that piece of information, but all the blocks connected to that chain. If we continue discussing the technical elements for the sake of comprehension, it is critical to grasp a phrase called Hash Function. A hash function is a function that, when given an input, returns an output in the form of code that is unique for each input. This function is defined to the blocks produced via the use of Blockchain Technology. Thus, altering a block with its own hash function while also modifying the hash function of other blocks in the chain is a completely different ballgame. But without assistance from numerous persons or an incredible level of expertise in this sector, the concept of information being altered under Blockchain Technology cannot be implemented. Despite the fact that there is now no legal authority for blockchain technology, it poses numerous intriguing legal issues that should be explored. Generally, however, assessing the legal ramifications of the blockchain outside of a specific use case is more difficult than studying the same issue with Bitcoin. This is because Bitcoin is a specialized use of blockchain technology, but blockchain technology may be used in virtually any situation. When blockchain technology is used in regulated sectors, it triggers Know Your Customer (KYC) regulations and other reporting responsibilities such as anti-money laundering and counter-terrorist funding (depending on the country). These requirements will be difficult to satisfy when transactions are conducted on blockchains, at least in the manner in which blockchains are currently utilized. The most likely answer to this is for players to be required to give up their anonymity on the

Indian Society of Artificial Intelligence and Law Technical Report Series

blockchain in order to conduct commercial transactions. This is an issue that legislators might address. Security and Privacy The Indian Information Technology Act, 2000 (“IT Act”), for example, may be modified to do this. There are currently technical solutions in place that make this possible. Additionally, 'private' or 'permissioned' blockchains, in contrast to 'public' or 'permissionless' blockchains, govern who has access to and how they engage in the blockchain network. This is a common aspect of the several corporate blockchain solutions available on the market. The Chain Protocol, the previously described blockchain protocol aimed at financial organizations, is an example of a permissioned blockchain. The Reserve Bank of India (RBI) has imposed restrictions on virtual currencies based on Blockchain technology and issued a circular prohibiting the use of cryptocurrency in India. However, the element of tokenization-related actions is unclear. In banking legislation, it is necessary to comply with non-repudiation standards through in-person verification, and it is difficult to apply technical solutions for such requirements, particularly for cryptocurrency based on Blockchain. Digital Signatures are a critical component of Bitcoin networks and applications. As there are currently no specifics in Schedule I of the Information Technology Act, 2000 on transactions involving immovable property, wills, or negotiable instruments, this clause precludes the technology from being used for such activities. Presently, Section 43A of the IT Act does not include any privacy precautions when it comes to Blockchain. The 'Right to be Forgotten,' a prominent component of data protection law such as the Draft Personal Data Protection Bill, 2019, conflicts with the fundamental characteristic of Blockchain, which prevents data from being destroyed and ensures that its history is always available. Due to the fact that the blockchain is a novel technology, the majority of existing privacy regulations worldwide, including the Indian Information Technology Act, do not anticipate privacy safeguards for blockchain participants in this manner. The majority of Internet privacy regulations apply to situations in which a website or application gathers personal information from a user.

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For example, the IT Act governs the collection, use, and loss of private personal data or information by an organization that owns, controls, or operates a computer resource. Thus, while members would enjoy this standard Internet privacy and security, they are unlikely to apply to the blockchain due to the lack of a centralized body collecting data. According to the wording of the IT Act (section 43A), privacy on the blockchain is unlikely since there is no one "body corporate" collecting user data and "owning, managing, or operating" a computer resource (unlike a regular web service does, for instance). Rather than that, all blockchain participants exchange information, and power is decentralized. Enterprise implementations of commercial blockchain technology may thus seek to solve these privacy concerns by designing in privacy. Smart Contracts Smart contracts extend the ledger capabilities of blockchain technology by enabling for the programming of a variety of selfexecuting instructions on the blockchain. Smart contracts can automate approval procedures and clearance computations by using the blockchain as the single source of information and needing no manual verification. These operations are expensive and time consuming, and are prone to delay and human error. While the term 'smart contracts' does not refer to formal contracts, they are an essential application of them. As previously stated, contractual responsibilities such as payment and delivery may be designed to self-execute when certain criteria are met, for example, payment can be made automatically after a delivery event is established (the delivery would be confirmed automatically on the blockchain). This significantly decreases the resources required for contract administration, which includes the continual monitoring and compliance with contractual commitments (Seth, 2020). The Information Technology Act, 2000: Sections 5 and 10A of the IT Act stipulate that a contract is assumed to be performed if it is authenticated using a digital signature in line with the IT Act's procedures. This type of authentication is accomplished through the use of an asymmetric cryptographic system and hash function. Section 35 of the act specifies that an electronic signature may be obtained only through a Union Governmentdesignated certifying body. As a result, a smart contract

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performed using a hash key intended to use this as an identifier for blockchain authentication will not be considered a digital signature, as the signature was not acquired in compliance with the IT Act. Scope of IT act and Internet of Things The internet of things (IoT) is a network of linked items, people, and systems that process and respond to real and virtual data. It accomplishes goals such as enhancing user experience or device and system performance. The term "Internet of Things" increasingly can be used to refer to items that communicate with one another. M2M is an acronym for machine-to-machine communication that refers to the automated transmission of data between machines, systems, individual modules, and systems – all without human involvement. The obvious distinction between M2M and IoT is that M2M is focused on machine-to-machine communication, whereas IoT is focused on human-to-human connection. On the other hand, the Internet of Things attempts to expand on this notion by connecting 'things' to 'systems', 'people', and the like. M2M, which has traditionally been utilized for managing inventory and fleet tracking, is increasingly acknowledged as a means of enhancing governance. By linking more objects and people to the internet via IoT and M2M, lives will be transformed, particularly in the fields of health, home automation, retail, and transportation. Multiple devices communicating with one another and massive data transfer between their users would result in the exchange of personal information, causing privacy and data protection concerns. It is critical that such privacy concerns are addressed at the outset. The Indian government issued a draft ‘Internet of Things Policy' in 2015 to stimulate the invention and development of IoT-based goods particularly to meet Indian IoT demands. Agriculture, healthcare, water quality, and natural catastrophes were the primary topics addressed by the proposed policy. For the MeitY, this may be described as a dream-IoT world. The policy's aspirational draft was issued in 2015. Five years after its publication, the proposal has not matured into a real policy, nor have the organs concentrated on the demanding legal framework required for the IoT, despite widespread use. With a pandemicaffected world that is heavily reliant on the internet, artificial intelligence, the internet of things, and machine to machine

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(M2M), there are no explicit rules governing the latter three. While confined in the house, there is a noticeable rise in the use of various IoTs, indicating that users are exchanging a greater amount of data (Rao, et al., 2019). With many IoT devices communicating with one another via the internet, the risk of a data security breach is significant, and as more IoT devices are launched into the market, this issue will only become more complicated. Individual personal information is protected under the requirements of the Information Technology Act, 2000 ("IT Act") and the "Reasonable practices and procedures and sensitive personal data or information Rules, 2011" ("Rules") promulgated according to Section 43A of the IT Act (as amended). Section 43A of the IT Act addresses data protection in electronic media and provides that when a body corporate is negligent in implementing and maintaining 'reasonable security practices and procedures' in relation to any 'sensitive personal data that it engages with, possesses, or handles in a computer system that it owns, operates, or control mechanisms and such negligence results in wrongful loss Additionally, Section 72 of the ITA establishes a penalty for violating the confidentiality and privacy of acquired data. To secure the privacy and protection of the data gathered, the IoT service provider can have a custom-drafted privacy policy outlining the private information collected, the breadth and degree to which such information is used, and the safeguards in place to assure the data's security (Sarin, 2018). Additionally, the service provider may adopt carefully defined terms and conditions that generally govern liability limitations, the service provider's and consumer/responsibilities, user's indemnification, intellectual property rights, assignment/licensing, and dispute resolution. Additionally, to comply with Section 72 of the ITA, the service provider might enter into strict Non-Disclosure Agreements with its clients (Subramaniyan, 2019). Scope of IT act and AI By utilizing machine learning technology in the field of legal research, attorneys may get unprecedented insight into the legal realm in a matter of seconds. Cyril Armarchand and Mangaldas is one such firm that has acknowledged the AI's capabilities and

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is enthusiastically embracing them. CAM made history by becoming the first Indian legal practice to license "Kira," a machine learning program developed in Canada by Kira Systems. This AI-based software is capable of doing a variety of tasks, which eliminates the need for lengthy man-hours. The "Kira" system is used to analyze legal papers, detecting and highlighting potential danger areas, as well as extracting provisions from a variety of legal documents. The Information Technology Act makes no reference to telephony or the internet. The Act's primary objective was to provide digital signatures and electronic documents with the same legal standing as paper records. The Indian Telegraph Act, 1885, is the sole piece of legislation dealing with telephony. While the internet is a late twentieth-century development, the applicable legislation dates all the way back to the nineteenthcentury colonial era. As recently demonstrated by TRAI's rejection of Microsoft's Free Basics program and heroic preservation of the concept of net neutrality, the Telecom Regulatory Authority of India (TRAI) has been forced to step in to fill the legal and regulatory gap. This begs the question about whether basic internet ideas such as net neutrality should be included into legislation rather than needing to be defined by the regulator in response to a challenge. While data is at the heart of AI, there is no regulation in India that protects data privacy rights. The IT Act was amended in 2009 to include section 43A, which establishes a private right of action for compensation against any business that is negligent in installing and monitoring reasonable security methods and processes for the handling of sensitive personal data, resulting in wrongful loss or gain. This clause, which established statutory tort responsibility, was intended to alleviate international data outsourcers' worries amid the outbreak of numerous identity theft cases. Apart from being confined to sensitive personal data, the clause is effectively unenforceable, as tort proceedings in India take decades to resolve. As a result, the chance of someone successfully suing a business and getting compensation under section 43A within a reasonable time period is unlikely. Additionally, section 43A does not address problems such as whether individuals have privacy rights in their data, the

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purposes for which data may be used, and, most importantly, whether data may be sold or transferred. The IT Act's liability cap is likewise incompatible with the AI era. Section 79 of the IT Act reflects the notion, adopted from US law, that information technology service providers must be regulated similarly to telephone companies or the postal service. They are only content carriers and cannot be held responsible for the material they transport. As a result, except in very restricted situations, Section 79 exempts intermediaries such as ISPs from liability for any thirdparty information, data, or communication connection made available or hosted by them. However, treating ISPs as wireless carriers is hopelessly unsuitable for emerging app-based technologies, as illustrated by Uber's assertion that it is only an aggregator and so cannot be held responsible for what transpires during the cab trip. India has established itself as a global technological powerhouse, with Bengaluru competing with Silicon Valley. It is past time for law and adjudicative equipment to enter the AI era as well. Significant advancements are being achieved in a variety of disciplines, including information and communication technologies (ICT); artificial intelligence (AI), especially in the areas of learning algorithms and robotics; nanotechnology; space technology; biotechnology; and quantum computing, to mention a few. These discoveries are anticipated to be extremely disruptive and result in significant transformations in the way civilizations operate. Disruptive innovation theory has some interesting contradictions. The original idea has acquired broad acceptance among practitioners, and the word disruption has been ingrained in the common corporate vocabulary. A related problem is the widespread usage of disruptive innovation/disruption as a synonym for any new danger (or significant continuing change) and the underutilization of disruptive innovation as a theoretical term.

India’s Technology Diplomacy and Polyvocality in Policy Adaptations India’s lack of a policy on disruptive technology has rendered it victim to conflicting rules that have come into play through

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regulatory bodies and judicial decisions. This has resulted in an incoherent approach towards the regulation of these bodies, affecting the sovereignty of the state over issues of disruptive technologies. In this chapter India’s polyvocality and lack of clear stance on pertinent issues will be analysed. A Coherentist Approach to Regulation Law and legal thinking are to change with the society, and one of the biggest phenomena that are changing the way society functions is technology (Brownsword, 2018). The growth of technology has led to the obsoletion of certain services and functions that are no longer efficient or usable in the context of development. For example, India sent its last telegram in 2013, the service was discontinued as more and more people gained access to electronic communication services. As society progresses regulations must too, however regulations must also take into account different mindsets in order to make the regulations more effective and conducive to what needs to be accomplished (Brownsword, 2018). Although many believe the technocratic mindset is the best, there are sufficient criticisms against it as well, moreover, in order to arrive at the technocratic state, the law must pass through the prior two mindsets in order to gain sufficient information about how the third state will be implemented. India’s current technology policy exists in the form of documents produced by the policy actors like the NITI Aayog, existing policies and bills, and the treatment of disruptive technologies at home and abroad. The analysis of these different instruments displays to us the existence of discrepancies and inconsistencies. NITI Aayog and the Judiciary: Roles In early 2021, the then Chief Justice of India announced the launch of Supreme Court Portal for Assistance in Courts Efficiency (SUPACE). This is an AI tool which is intended to be used to make a Judge’s research work and judgement writing easier. The way this tool will function is by providing information like relevant case laws, legislations and other relevant information to the judges based on the facts at hand. As such the tool is a fact processing tool, and it has been mentioned several times that the effects of this tool will not ‘spill-over’ into

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decision making. However, the tool has also been said to adapt to the matter at hand, as well as the style of the judge that is presiding (S, 2021). The meaning of ‘style’ has not been mentioned anywhere, further, there has been no disclosure about the working of the tool itself. It is important to bring into the picture a document published by the NITI Aayog about ‘Responsible AI’ (NITI Aayog, 2021). This 64-page document focuses on the importance of setting up guidelines for the implementation of AI Systems to ensure inclusivity and unbiased results, so that once large-scale adoption of the AI systems take place, it will not result in detriment to any party. The document focuses on values like transparency, accountability and responsibility, and even goes as far as to explicitly condemn the potential, accidental inclusion of racial and other biases being embedded into the AI Systems without the inclusion of these values, and also mentions the effects on society, but does not mention real world examples of biased AI. On one hand the NITI Aayog is advocating for the development of guidelines and frameworks for responsible AI systems, while warning of the potential implications of not doing so, while the Supreme Court of India goes on to incorporate AI systems without these considerations being implemented or even touched on (Abhivardhan, 2021). While the benefits of such services will indeed help overburdened judges save time and perform their duties better, there are no active measures that are being implemented to ensure that the system is devoid of bias. Lack of Geostrategic and Geopolitical Core in Technology Diplomacy A bigger issue, which emerges with India’s technology diplomacy is the defeatist approach employed by the Ministry of External Affairs and the Ministry of Information Technology in the Union Government. The larger share of this approach’s basis must be given to the fact that while defining and leading as a power in various international organizations, India did not take interest in envisioning unique approaches, which are core to the anthropological realities in India. Plus, a reasonable assessment

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of the knowledge economy of India has started, but the strategic thinkers need to realize that the disruptive effects of technology reflect the dynamics of leadership, bargaining leverage and diplomatic salience, which makes the case of the negotiating parties accordingly. Having a defeatist approach, which denies cyber and geopolitical realities, is the reflection of a weak state. This also might be considered a reason why the Data Protection Bill is yet pending to be passed. Second, the Union Government, and its supporting/funded organizations are partnering with foreign entities on digital cooperation-related issues, either through sponsored events, or through some funded research projects. Creating a corporate pool of strategic investors matters under Invest India, which of course must have been done in the past. In the domain of technology and international law, India might adopt a West-centric approach. However, aligning with the European Union would be smarter and effective for India to become a regulatory superpower, as compared to the United States when it comes to digital cooperation. Also, the role of companies as a corporate community matters because their strategic approaches would shape the Indian startup ecosystem would emerge. There is no doubt that Indian start-ups are gaining their ground and relevance. The larger lack comes because of issues like flipping, where IANS had reported that out of 54 unicorns which were India-domiciled, 24 of them had flipped, because the depth in markets is not sustainable enough, there are stringent compliance requirements and then even the taxation framework is considered unsustainable (IANS, 2021). That is similar with India’s investment law approaches at a governmental level. The Model BIT has several flaws and the dispute resolution mechanisms in India have not become costeffective yet, for example – Arbitration.

The Personal Data Protection Bill: Scope for Transnational Regulatory Sovereignty in Data Law Introduction In the past few years, artificial intelligence (AI) has advanced at a tremendous speed. Nowadays, both commercial and public sector companies worldwide are increasingly using AI technologies. Today and soon, the capabilities of AI provide broad and significant advantages for people, organizations, and

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society. Even so, these same technical advancements pose significant problems, including concerns about the conflict between artificial intelligence and data protection regulations. As a consequence, we also have an option and a responsibility to assess the efficacy of existing data protection legislation in light of technical realities in the twenty-first century. We need data protection rules and policies that effectively safeguard privacy in an age of AI and the massive data on which it often relies, but also do not obstruct the future expansion of these new technologies. As numerous government and regulatory studies have emphasized, we cannot choose between the alreadyestablished advantages of AI and personal data protection: we must develop realistic methods to ensure both. Equitable and just process, purpose restriction, collection restriction, legal processing, notification, quality of data, file storage constraint, and accountability are all examples of data protection requirements. Additionally, the law creates a Data Protection Authority (DPA) composed of individuals nominated by the Union Government. The PDP bill was presented in the Lok Sabha in December 2019, after the submission of a report and draft law by a Committee of Experts headed by Justice B.N Shrikrishna in July 2017. The government established an expert committee to draft a data protection strategy and framework after the landmark judgment in K.S Puttaswamy vs Union of India. The law would apply to all organizations (States, businesses, and people) that handle personal data, including those that provide products and services in India and those that conduct profiling of Indian citizens. It describes personal data as "any information that enables an individual to be recognized directly or indirectly." As per the law, data processing must be permission-based and acquired no later than at the time data processing begins, and this consent must be freely given, informed, explicit, unambiguous, and revocable. The law provides identical rights to data subjects (principals) as the GDPR: access, rectification, data portability, and the right to be

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forgotten. Nonetheless, the right to be forgotten does not imply erasure, but rather the prohibition or limitation of a fiduciary's disclosure of personal data. Unlike the GDPR, which enables data subjects to object to judgments based purely on storage and processing, the Indian law does not have such a provision. As this assessment proceeds, kindly consider that the portion on the comments on the Personal Data Protection Bill might turn out to be outdated, in case in a foreseeable future, a Bill with changes is proposed in the coming months, from the date of publication of this report. Objective of the bill Numerous transparency and accountability provisions are included in the law. To begin, every data fiduciary must adopt Privacy by Design rules that include management, organizational, business, and technological systems with the goal of anticipating, identifying, and avoiding damage. Business objectives should be achieved without jeopardizing privacy rights, and data processing must be open. Additionally, a record of data processing should be maintained, and there is a need to perform data protection impact evaluations, as well as an annual audit of policies and practices. When a data fiduciary does large-scale profiling or utilizes sensitive personal data, like biometric data, an impact assessment is required. At least, such an independent analysis must contain a comprehensive explanation of the projected operation and its objective, as well as the data to be utilized; an evaluation of the possible damage to data principals; and methods for mitigating or avoiding such harms. The Data Protection Authority will conduct a review of these determinations and may impose further restrictions or order the fiduciary to cease relevant activity. Organizations that engage in such high-risk data processing are referred to as "major data fiduciaries" and must employ a data protection officer ("DPO"). Organizations with no physical presence in India that fall within the Bill's scope would be required to designate an Indianbased DPO.

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Data sovereignty The proposed law establishes exemptions for the Indian government's acquisition of data in the interest of India's sovereignty and integrity, national security, cordial relations with other states, and public order. The law defines and specifies terms relating to data collecting, data processing, and data storage. Localization of data, as defined in Section 33 of the law, mandates that all data gathered and processed in India be kept in India, thus prohibiting the movement of personal data beyond the country. This may result in a rise in expenses for multinational corporations, who often keep their data on a global scale. Another idea is Privacy Compliance, which is discussed in more detail in Chapter 6 of the proposed law. Chapter 6 contains provisions requiring data fiduciaries to be transparent and accountable to data principals. Consent of the data subject prior to collecting their data is a critical notion outlined in Chapters 2 and 5 of the law. On the overall, this measure demonstrates the law's grip over the digital economy's breakneck speed, which has outpaced previous laws such as the Information Technology Act 2000. Data protection is a legal term that refers to a legislation that safeguards personal information and prevents businesses from abusing or exploiting it. We give data to third parties and businesses when we fill out application forms or make online purchases. Apart from that, data is produced without our awareness. Data protection is critical for exercising the Indian Constitution's Article 21 right to privacy. The amount of data produced and processed, coupled with contemporary technologies like monitoring and artificial intelligence, demonstrates the critical need for strong regulation to guarantee the greatest security of data and to rein in companies. Additionally, the government must enact appropriate legislation to re-establish public trust in the businesses to whom data is disclosed. Along with data security from businesses, data must be safeguarded against theft, i.e., cybercrime. Cybercrime is

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defined as illegal behavior directed against or involving a computer, database server, or network resource. There are many kinds of cybercrime, including online fraud, corporate data theft and sale, cyber extortion, and cyberattacks. Dilution of Specifications for Data Localization (Sec. 33 and 34 of the Bill) The obligatory obligation under Section 40 of the Draft Personal Data Protection Bill, 2018 (“the Srikrishna Bill”) to store a mirror copy of all personal data in India has been repealed in the PDP Bill, 2019. The need for localization applies solely to sensitive and essential personal data (stored in India with conditions for transfer overseas). No sensitive personal data may even be handled outside of India [See Sec. 33(2)]. Sensitive personal data (“SPD”) may be transported outside India with explicit consent and a) if the transfer is made pursuant to an agreement or intra-group scheme (authorized by the data protection authority); or b) if the Union Government authorizes the transfer to a nation, institution, or intergovernmental organizations (requisite safeguards for the protection of such personal data are prescribed under these provisions); or c) if the Union Government authorizes the transfer. Likewise, transfers of essential personal data may be permitted for health or other emergency responders, or if the Union Government authorizes the transfer to a country, institution, or international body. While eliminating the obligatory mirroring requirement is an acceptable move, users/data principals should have control over where their personal data is stored and the state should not impose limitations on data transfer, particularly where express permission has been provided. The Right to Be Forgotten (Sec. 18 of the Bill) As under the right to be forgotten ("RTBF"), the Srikrishna Bill did not include a right to erasure (See Sec. 27 of the Srikrishna Bill). (“Key Changes in the Personal Data Protection Bill, 2019 from the Srikrishna ... - SFLC.in”) The PDP Bill, 2019 added the right to erasure to the right to data rectification [See Sec. 18(1)(d)]. When personal data is no longer required for the

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objective of processing, the data principal may request that data fiduciaries erase it. While data fiduciaries have the right to deny such requests for deletion, data principals may compel fiduciaries to take reasonable measures to indicate, alongside the relevant personal data, that they dispute it. This is a beneficial addition since it strengthens data subjects' rights to seek the deletion of data that is no longer required for processing purposes. This privilege was omitted from the Srikrishna Bill. A right to erasure should have been included in RTBF (Section 20 of the PDP Bill, 2019), since the RTBF now only contains a right to non-disclosure, not erasing. Union Government may order data trustees to disclose anonymous personal data/non-personal information (Sec. 91 of the Bill) The Srikrishna Bill, Sec. 105, authorized the Union Government to develop suitable policies for the digital industry in the context of 'non-personal data,' including steps to promote its growth, its security, its integrity, and its protection against abuse. That law did not specify what non-personal information meant or how the government should use it. The 2019 PDP Bill goes one further step, as defined by Sec. 91 – a) it describes nonpersonal data as data not covered by the definition of personally identifiable information (see Sec. 3(28) for the definition of personal data); b) allows the Union Government to direct all fiduciary/processor of personal detail or non-personal information... [See paragraph 91(2) of the Act]. Sec 2(b) of the PDP Bill 2019 provides, for the purposes of the Union Government, that the Bill still wouldn't apply to data that is anonymized, beyond those specified in Sec. 81. The Ministry of Electronics and IT has formed an expert group in September this year to discuss a framework for the management of data on the regulatory framework for 'nonpersonal information.' It would be inappropriate to provide government access to non-personal/anonymized information before publishing the findings of this expert committee for the 2019 PDP Bill. The Committee of Experts is called to welcome public suggestions and to allow civil society to contribute with

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non-personal/anonymized data on privacy concerns. With respect to the request by the Union Government of anonymous and non-personal data from any database trustee, this may represent a costly demand by data trustees. It may also be a difficult job to apply anonymization requirements, particularly for start-ups and SMEs. This clause does not include any protections. What if a data trustee does not anonymize personal information properly? Or do you provide non personal information which, by combining different data points, may be readily converted into personal data? To protect the privacy rights of the data directors, the Act does not offer protections for such circumstances. Data sharing transparency and consent management concept (Sec. 17, 21, and 23 of the Bill) Sec. 17(3) of the 2019 Bill of PDP provides the data managers rights in a location to obtain the identity of the data trustees with whom any (other) information fiduciary has been shared. This may allow data directors to examine the companies that exchange their personal data with a certain data trustee. The right to confirm and access has been added to the clause (this right was contained in Sec. 24 of the Srikrishna Bill). (“Key Changes in the Personal Data Protection Bill, 2019 from the Srikrishna ... - SFLC.in”) In the PDP Bill, 2019, this supports the legal foundation. Data managers are entitled to know all organizations that process/share their personal information. This strengthens the rights of the data managers in respect of their information privacy by having the ability to withdraw their permission. The PDP Project of Procedure 2019 additionally presents the idea of "consent managers," which is not in the Srikrishna Bill (See Secs. 21(1) and 23). The word consent managers is not set forth in the defining clause of the bill, but is described under Sec. 23 as a "data fiduciary," allowing a data principal, via an accessible, transparent and intraoperative platform, to obtain their permission, cancelled, reviewed and

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managed. The DPA should register any consent management systems [see Sec. 23(5)]. Reading the idea of "consent dashboards" as suggested in the report by the Srikrishna Committee, it appears as the PDP Bill 2019 presented. Considering this, dashboards may assist to reduce the weariness of consents, but they may raise new problems for the protection of privacy. A metadata trail produced via consent dashboards may assist build a comprehensive user commitment profile online. Metadata produced by such tools may help in the profiling of people when such management techniques are needed to be registered with DPA. Application of the Act Personal Data Processing The Bill regulates the processing of personal data that has been acquired, disclosed, exchanged, or otherwise processed inside the Indian territory by: 1. The government, any Indian corporation, any Indian citizen, or any individual or group of individuals incorporated or formed under Indian law; 2. Data fiduciaries or data processors located outside the territory of India, if the processing is carried out in connection with any business conducted in India or any systematic action of offering merchandise to data principals located within the territory of India; or (b) in correlation with any activity involving data principal profiling located within the territorial jurisdiction. 3. However, it would not apply to data that has been anonymized. In regard to personal data, anonymisation refers to any irreversible process of changing or converting personal data into a form in which the data principal cannot be recognized, which satisfies the Authority's criteria of irreversibility; Anonymized data is data that has been anonymized; Obligations of a data fiduciary A 'Data Fiduciary' (referred to as a Collector under GDPR) is any person, whether the State, a business, a juristic organization, or an individual, who decides the purpose and methods of

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processing personal data alone or in collaboration with others. The term 'Data Principal' refers to the actual person to whom personal data pertains. •

Prohibition of personal data processing - Personal data may only be processed for specified, explicit, and legal purposes. • Purpose limitation for personal data processing – Any person processing personal data of a data principal shall do so— (a) equitably in a manner that protects the data principal's private information; and (b) for the purpose given consent to by the data subject or for an intention that is incidental to or attached with such intent and that the data principal would reasonably expect. • Limitation on data collection- Personal data must be acquired to the extent required for the purposes of data processing. • Processed personal data quality - The data fiduciary must take appropriate measures to ensure that processed personal data is full, accurate, not misleading, and up - to date, in light of the processing purpose. • Retention of personal data - The data fiduciary must keep personal data for no longer than is required to fulfill the processing purpose and shall erase the personal data at the conclusion of the processing. • Data fiduciary accountability - The data fiduciary is accountable for adhering to the requirements of this Act with regard to any processing carried out by it or on its behalf. • Consent required for processing personal data - Personal data must not be processed without the consent of the data subject at the time of the data's collection. The Data Principal may revoke consent at any moment. The Data Fiduciary has the responsibility of establishing consent. Restriction on the export of Personal Data • Personal Data may be processed and stored on servers located outside India a. Sensitive Personal Data must be kept in India and may be moved beyond the country for processing only with the data principal's express permission and subject to certain additional restrictions, including the following:

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a. the transfer is undertaken according to an Authorityapproved contract or intra-group arrangement, and the Authority has made measures for the sufficient protection of the data principal's rights under this Act, including with respect to subsequent transfers to any other person; b. the Union Government, in deliberation with the Authority, has approved the transfer to a country or to such entity in a nation or to an international organization on the basis of its determination that— (i) such personal data shall apply to an adequate level of security in accordance with applicable laws and international treaties; and (ii) such transfer shall be made in a timely manner. c. Sensitive personal data must be handled and kept only in India. Any crucial personal data may be transported outside India only in the following circumstances: (a) to an individual or entity engaged in the provision of health care or emergency services, where the transfer is necessary for prompt action; or (b) to a country, or to any entity or class of entity within a country, or to an international organization, where the Union Government has determined that the transfer is essential for prompt action. (3) Any transfer made according to sub-section (2) clause (a) must be reported to the Authority within the time frame prescribed by regulations. Offenses The Bill establishes the following offenses: b. Any individual who willfully or intentionally— (a) reidentifies personal data that has been de-identified by a data fiduciary or information processor, as the case could be; or (b) re-identifies and procedures and mechanisms such personal data as stated in clause (a), all without consent of such data fiduciary or data controller, shall be punished with a term of imprisonment not exceeding three years. a. This Act's offenses are cognizable and non-bailable. b. Offenses committed by companies: any individual who

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was in control of and accountable to the company for the conduct of the company's business at the time the crime was committed, as well as the company, will be considered guilty of the offence and liable to be prosecuted and punished accordingly. c. State-sanctioned offenses: the head of these kinds of departments, authorities, or bodies shall be presumed guilty of the offense and shall be prosecuted and punished accordingly. The RBI guidance on data localization Banks in India have also been required to keep data locally throughout the years, and have usually consulted the RBI, India's financial regulator, prior to making any cross-border transfers. Additionally, the RBI issued a notice in April 2018 ordering payment system providers to guarantee that all data pertaining to payment systems, particularly complete end-toend transaction information, be kept exclusively in an Indian system. Payment transactions may be handled offshore if the payment system providers so wish. However, the full end-toend transaction information must be removed from systems located outside India and returned to India within one working day or 24 hours, whatever is sooner, and kept locally in India. A copy of both the local and international components may be kept overseas for cross-border transactions. Doctrine of data sovereignty The concept of sovereignty is predicated on the assumption of the state's internal and exterior autonomy. All members of the United Nations are guaranteed "sovereign equality" under the United Nations Charter. Furthermore, according to the UN General Assembly-adopted Declaration on the Principles of International Law Governing Friendly Relations and Cooperation Among States, sovereign equality includes territorial integrity and political independence, as well as the right of a state to freely choose and develop its political, social, economic, and cultural systems. Historically, the notion of state-controlled territory has been critical in comprehending the concept of sovereignty. This, however, is meaningless for online purposes. As a result, the idea of

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digital sovereignty developed to regulate the borderless internet. Digital sovereignty refers to a nation state's capacity to govern both the digital infrastructure and information assets located inside its borders. When applied to governments' ability and attempts to control data assets and technical infrastructures located beyond their borders, this notion may take on a variety of shapes. Initially, such efforts were restricted to adopting "long-arm" laws that ensured prosecution of crimes committed against a nation state or its people regardless of the accused's country or location. Subsequently, it began to take on additional forms, including (i) restrictions on cross-border data flows, (ii) hard or soft data sovereignty requirements, (iii) mandatory sharing, and (iv) local situs requirements – such as the formation of an incorporated entity or the appointment of officers within national boundaries, and others. As stated in the preamble, the Bill protects individuals' private information in relation to personal data, clarifies the flow and use of personal data, establishes a trust relationship among individuals and companies processing personal data, protects the rights of individuals for whom the personal data are processed, and establishes a framework for organizational and technical measures. Additionally, the Bill aims to provide remedies for unlawful and harmful processing and to create a Data Protection Authority of India to carry out the above objectives and those associated with or incidental to them. The Bill's fundamental concepts are substantially comparable to those found in the General Data Protection Regulation (Regulation (EU) 2016/679) ("GDPR").

Policy Paralyses in India’s Approach Algorithmic and Information Governance

Towards

Information Governance Issues The world is overflowing with data. Adoption of the internet, smart devices, and cloud-driven apps, followed by increasing use

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of AI-systems are the key causes because of which we are generating and consuming data at a blazing speed. Data generates economic value and wealth, in addition to social and public value. It is progressively taking the centre-stage in coretechnological businesses and economic sectors everywhere while also addressing numerous social and public administration issues. With the snowballing prominence and value that it generates, governments across the globe are realizing and comprehending the need to enable and regulate all aspects of data. World governments have suggested “Open Data Initiatives” and protocols related to personal data, like PDP Bill in India or GDPR in European Union. However, these governments, specifically India, has avoided to recognize technology sector as an independent area and its sectorial requirement. This is a new and emerging area of regulation and that is why there is a need to establish an authority that has specialized knowledge of data governance, knowledge of technology up-to-the-minute research and innovation and keep pace with the swiftly developing technological landscape. Information governance that guarantees that creation, storage, use, disclosure, archiving and destruction of information is handled in accordance with legal requirements and thereby maximize operational efficiency plays a vital role here. Currently, in India data protection and privacy is governed by Section 43A and Section 72A of the Information Technology Act, 2000 and the corresponding Information Technology (Reasonable Security Practices and Procedure and Sensitive Personal Data or Information) Rules, 2011. Additionally, the Policy on Open Standards for e-governance mandated by the Ministry of Communications & Information Technology is introduced with the objective to “provides a framework for the selection of Standards to facilitate interoperability between systems developed by multiple agencies… It aims for reliable long-term accessibility to public documents and information in Indian context.” (Government of India, 2010) This policy was intended to set out the principles of information governance across the country and to make clear the responsibilities and reporting lines for different organizations and the government departments that handle sensitive data. It is intended as an over-arching framework to give clarity about the scope of information

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governance and to highlight key information and related policies to the citizens. The government must understand that it is imperative for data protection to be applied to all forms of data. Since data is vast and there are various categories of NPD, it is expected that a regulation on NPD is likely to lead to increased transparency, better quality services, improved efficiencies, more innovation and public welfare. The Ministry constituted a Committee of Experts to deliberate on a Data Governance Framework which released its report that sets out the context and proposal for the forthcoming regulations on NPD. Based on consultation, public comments and feedback, a comprehensive data framework governing NPD in India may be introduced in the near future. Effects of Erroneous Data Governance The one and only effect of erroneous data governance by either the government or private entities is data breach and it costs the people. The increase in data exposure and data leaks from within the organization is very palpable anyways, and must be seriously addressed. In fact, the daily news of data leaks are witness even today. In the three quarter of 2020, it was reported that there were almost 2900 public breaches, in some of the biggest companies like Twitter, Wattpad, Microsoft, Estee Lauder, Broadvoice, and Whisper. Two breaches exposed over 1 billion records each and four breaches exposed over 100 million records. Together these six breaches accounted for approximately 8 billion exposed records, or 22.3% of the records exposed through the end of the third quarter (Henquriez, 2020). Security issues arise from any unauthorized behaviour, while privacy is by-product of processing authorized personally identified information. As a precaution, it is suggested that impact assessments is done to personal data processing, identifying, and mitigating risks. It analyzes how an entity collects, uses, shares, and maintains personally identifiable information, related to existing risks. Privacy Impact Assessments (PIA), on the other hand, used to protect privacy by design. It identifies and minimizes risks associated with the processing of personal data. Risk Assessment provides actionable threat intelligence about organizations that have experienced a

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data breach or leaked credentials. Therefore, it is imperative that the ones who collect data keep it with utmost responsibility and security. Need of a Well-Crafted Policy A well-crafted policy for information or data governance is something that India needs urgently right now. Such policy can fashions a governance framework that guarantees: a certain amount of oversight of the data resources of an organization based on its value and risk; steady, efficient and active supervision over the data resources of the organization, over time; and the protection and security planes for diverse groups of data, as established by the organization’s governance team. Such policy warrants that the enterprise data governance arrangement supports the organization's tactical vision for its data program, even while the aim is leveraging data to collect acumens that drive new profits or to utilize data to offer new facilities or to fuel digital transformation, generally. Even though each policy should be designed to the unique requirements of the enterprise, it usually should contain: the record of the data sources within the organization; the objectives of the organization's data governance program and metrics that would determine its success; the points in the organization that will administer essentials of the governance program; prospects around class of data and its lifecycle management along with data integrity and data integration; information regarding acceptable data usage; different classes of data like sensitive, confidential or publicly available accompanied by the stages of security required at the different levels; and finally, the laws that must be followed while accumulating and preserving that data and compliance requirements for the organization's data program. Algorithmic Governance Issues Practically, as per the 3 stages from coherentism to technocracy, India has some key problems to escalate. Here are the key issues with the Indian state which are elaborated further: • Indian Law is still incompetent to usurp or even digest the omnipotent and omnipresent nature of artificial intelligence due to the knowledge approaches as well as the economic ripples that such technologies can create.

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•

Indian Law does not comprehend how linear and cyclic consequentialism are to be even adjudicated, let alone arbitered or settled. A conscious legal system equipped by a mature jurisprudential literature is the need, which again escalates India back to the problem that there is a huge lack of experience in dealing with cases related to AI technologies. • India has not yet attempted to specify as to which approach to audit AI technologies should be adopted. In matters of global governance, it is real enough to observe when agreements are reached based on subjective consensuses of state parties being deliberated. Politically, diplomatically, and even legally, India’s legal acumen is skewed and much scattered. • Digital coloniality is being understood by the Union Government reasonably, but the methodology adopted has been quite lackadaisical as well as feudal, backed by procedural dysfunctionality. Digital coloniality and feudalism can encourage the privatisation and dilution of state capacity, and without engineering specialist approaches for even expecting to develop any Indian de lege ferenda, India cannot develop strategic considerations. The inability of the state machinery at both Union and State levels, when it comes to implementation, cannot be justified by their inability and tendency to become dysfunctional, simply because the exacerbation is backed by the feudal way of governance – which again would procedurally repeat if accessibility to improve is not taken into important consideration. There is no doubt that the Union Government motivates digitisation and encouraging avenues of digital knowledge economies and societies. There are urban and rural-level initiatives which have been successful. However, there is not much preparation as of now to address issues related to competency, potential for auditability & strategic approach towards transforming de lege ferenda yet. Each of the issues have been described in the sub-parts below:

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Why Omnipresence and Omnipotence Needs to Be Consumed in the Cycle of Policymaking and Deliberations In algorithmic governance, the role of AI technologies in strengthening and expanding the scope of governance of the institutions within a state in India is already happening. There are enough chat bots, or AI-based verification services operated by the Government of India, which have their own levels of efficacy and inefficacy. Some of them, are useful, while some of them do not have much usefulness. It could be a contentious question as to whether the source code and other technical details like them are owned by the Government and or not, and whether there is some backend process to ensure checks and balances or not. There are relevant government ministries, who handle such affairs in their own domain. However, instead of adopting an approach where AI technologies of minimal cause but significant reach and effect, should be taken into consideration not for the purposes of arbitrary scrutiny but to assess their effectiveness, and how they impact the all-comprehensiveness of the system of governance. Of course, the NITI Aayog and other Government bodies are concerned to some extent, and it is being assumed that some resourceful way of assessment could have been done to proceed with such AI technologies. In the interest of India’s foreign policy as well, in the domain of international relations and technology diplomacy, it is recommended that India focuses on developing a joint division/body (not committees or statutory bodies, considering the relevance of the subject matter, and the reasons if there should be some protocols to govern) on AI Resilience and QA, which assists the NITI Aayog or the Ministries concerned with AI technologies, including those of Law and Information Technology in at least assessing anthropological information of the stages of the omnipotence and omnipresence of such AI technologies. This can happen in the current constitutional law framework as well, not just because the Part III of the Indian Constitution is to be taken into consideration. Beyond fundamental rights, omnipotence and omnipresence are double-edged because they can lead to some kinds of instrumental and procedural exploitations, which are described as follows:

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•

Self-exploitation and externalised form of exploitation of human dignity and integrity, considerably a violation of the fundamental rights to life and personal liberty of the consumers • Exploitation of the already unprepared positivist (coherentist) legal regime, wherein only extended interpretations convinced by the juridical literature of constitutionalism could be taken into consideration • Data exploitation and quality issues, with respect to data protection, processing, localisation, and democratization (access) For none of the issues stated above, any restrictive or protectionist approach is needed per se. However, the Indian state must realise that the role of an integrating technology like AI, be it in whatsoever form – or manifest availability, must be naturalized, harmonised, and even audited regularly, to trace its algorithmic activities. There should be a light-handed approach, which must be central to data quality and efficacy – yet should also ensure that the regulators do have the mobility to act. The Limitations of Indian Jurisprudence in Understanding Algorithmic Governance The current jurisprudence of India has several flaws, both systemic and specific. There are elements of coloniality in Indian jurisprudence, which does not specifically open options for nuanced and better approaches. Further, constitutionalism, which is solely based on juridical interpretations, expands the scope of the jurisprudence to develop coherentist positions on legal issues. The same can be done in the domain of technology and administrative law. However, the efficacy would be in question because of a lack of skill to strategize and emphasize upon critical legal issues on which adjudication must happen. The lack of understanding is then another issue. Of course, there cannot be a one-size-fits-all approach. However, the reason it is important to understand is that due to coloniality, most interpretations are an outcome of copying the aesthetic and skeletal components of such jurisprudential concepts from other countries, which again can be done, provided that the judgments

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and orders passed are direct, crisp, specific and concise. The ratio decidendi and the obiter dicta of a judgment should be specific and must not be conflated if specificity is not decided. A third problem which can be observed is that in constitutional law, arguments are usually (and non-exhaustively) kept polemically, which is why the following is to be understood: • Policy interventions are usually done by the executive branch of the governments, and not the courts. In India, there is no proper form of separation of powers system, not because of the Indian Constitution, but because courts, in many ways – in the name of public interest, duty and even constitutional morality, have subjected themselves to policy interventions (Rajagopalan, 2021). Hence, when regulatory sovereignty would have to be strengthened, the courts would play a serious role in tackling disputes related to any disruptive technology, including AI, where their public law approaches are concise, clear, and reasonable. • Defining larger public interest is always a contentious matter in constitutional courts, which again, if gets polemical, then leads to problems, where public duty to protection is not properly safeguarded within the scope of the state, and there are very less mechanisms to even have balanced and adaptive form of interpretations. • Lack of literature in public law is a natural problem when newer cases would come in, and experiential considerations would form the precedents accordingly. It is therefore important that while comparative and international approaches are taken into consideration, a rigidly specific form of interpretation is adopted, which is consistent with policy projections that are developed in the state. Consultative approaches can be adopted as well. No Auditing or Regulatory Sandbox Approach has been Decided So Far India has not yet specified its position worldwide on many complex issues of AI ethics, except maybe some consultations on Responsible AI and even Privacy rights, to some extent (Roy, 2021). Beyond that, the explainability of artificial intelligence is a more contentious problem, which needs to be reasonably

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addressed to ensure that better auditing standards can be started to be achieved. There is a relevant lack of design making in achieving policy designs, despite some background research being developed by the government agencies. There also should be a regulatory sandbox framework, which can ensure that effective compliance standards can be achieved, at a preliminary level for better regulatory policy interventions. No Decisive Approach of the Second and Third Order Effects of Digital Coloniality Digital coloniality and the West-dominated understandings of AI ethics are being recognized by government institutions at the Union level (Roy, 2021). Yet, there is not much research produced about digital coloniality as of now. The inefficacy of the Indian state makes it feudal by its means of functionality and interaction, which also compromises its position on various tendencies which lead to digital colonization. An adaptive approach is therefore needed, where the Union Government clearly addresses adventurist policies of foreign digital-economic actors across the globe. The approach cannot be idealistic, and should assume principled realism as a foreign policy construct, based on ensuring human dignity and avoiding any tendencies of exploitation and reductionism in approaching and preventing innovation and R&D initiatives per se. Yes, predictability might not be expected much. There also cannot be an equilibrium approach to block avenues of action and cooperation. However, digital coloniality should be dealt with responsibility. The procedural role of digital feudalism has been tried to be dealt by the Union Government, when the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (PRS India, 2021) were implemented. However, such rules even have flaws in interpretation, implementation and even in matters related to checks and balances.

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The Lackadaisical Position of India on Knowledge Economy Condition of India’s Knowledge Economy India2 is primarily and agrarian economy, as per the 2018 Economic Survey of India, 50% of India’s Total Workforce is employed in the Agricultural Sector, however this sector only contributes 17 to 18 % of the Country’s GDP (Sunder, 2018). At the same time, India’s network of high-quality educational institutions generates 200,000 professionals in Science, Technology, Engineering and Mathematics (STEM) based fields, but the economic benefit of this addition is not realised as the employment opportunities for the same are not abundant. i.e., there is a mismatch between the number of Knowledge Makers and Knowledge Takers. The dependence of India’s population on agriculture is a cause for worry as agriculture is sector that is heavily dependent on natural conditions that humans cannot control in an effective manner. Thus, there is a strong reason to shift a portion of the agrarian workforce over to more productive sectors and knowledge economy centric activities. Doing so will: - Reduce dependence on Agriculture Sector The authors propose that a knowledge economy is composed of 3 essential pillars: 1. Knowledge Makers: Those that generate new knowledge This encompasses universities, think tanks, independent researchers, and other bodies that convert intellectual inputs into intellectual outputs. 2. Knowledge Holders: Those that store, distribute and disseminate knowledge This encompasses schools, universities, experts and communities as a whole, people or groups of people that have a large amount of knowledge on specific topics and have the ability to use it as capital. Knowledge holders also become a point of contact for the next pillar. 3. Knowledge Takers: Those that utilise, purchase or apply existing, or soon to exist knowledge Commercial Entities, universities and other community members that are willing to exchange knowledge for some monetary amount and then apply it or implement it. 2

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- Improve Knowledge Based Sectors - Reallocate Human Capital to more productive sectors The following conditions make India a prime candidate for the development of its knowledge economy (World Bank Finance and Private Sector Development Unit and South Asia Region And the World Bank Institute, 2005): 1. Large Number of skilled, multi-lingual knowledge workers – Especially in STEM Fields 2. One of the largest domestic markets for knowledge in the world a. Presence of entrepreneurial dynamism b. Presence of Start-Up Culture c. Presence of strong financial sector 3. Diverse Population – allowing the creation of valuable knowledge linkages and networks 4. Strong STEM Infrastructure 5. High level of demand for productivity solutions in unproductive fields like Agriculture These pre-existing conditions set the stage for India to boost its power as an influential knowledge economy. While research originating in India is making an impact at the global scale, only a small part of the population is engaged in it. India’s current education system is highly competitive due to the sheer size of its population, this accompanied with the country’s lack of opportunities creates a rat race in which students are forced to compete. Further the system is plagued by certain biases and unequal status given to different streams and subjects. 1. It glorifies a set of careers that not all individuals are capable of, and are already oversaturated, this results in: - Low quality educational institutions being approved due to the high demand of certain careers and creating varying qualities of graduates across the country - Large number of graduates that cannot find a place to apply their skills properly, resulting in lost potential to contribute to economy and extremely low returns on educational investment 2. There is not an emphasis on the development of essential skills that are important for today 's workspace:

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In 2021, the world is moving more and more towards solution-oriented careers, such as programming, marketing, etc. However, the main skills required to excel in such an economy are not present in the Indian classroom. Skills like communication, team work and effective resource sharing are not taught and even discouraged due to the high level of competition. Further, as more and more work move online, India’s education system fails to keep up with the needs of the modern workplace. Basic computer education is a luxury in most schools across the country and those that do provide it are usually out of date or under resourced.

3. There are gaps in the accessibility of education - Universal and compulsory education for all citizens has remained a goal for India since the inception of its constitution, however this goal stands unachieved half a century later. The recent recognition of Education as a fundamental right is a clear reflection of the State’s acknowledgement of this fact. - Government schools set up in several states across India are under staffed or under equipped - There are reports of teachers in government schools being corrupt or inattentive 4. Research based careers in India are making an impact on the world and country but only a small amount of the total population is engaged in research work. - Due to the competition and societal culture in India, students are primed and encouraged to learn in order to earn money instead of learning for learning’s sake (SiliconIndia, 2021). - The glorification of high paying careers has driven hundreds of thousands of students to expensive coaching institutions and universities that specialise in making better workers and exam takers instead of better thinkers, learners and teachers that can contribute to the development of the field (Nanda, 2019; Press Trust of India, 2017).

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Further government interference in areas like curriculum design and research approvals have hindered the willingness of PhD Professionals to work in those roles within India. Students opting for PhDs do not get the returns on the investment of time and money that can be expected from such a degree in other countries (Parishwad, 2019). This results in: o Overqualified employees doing unfulfilling jobs, their economic potential not being achieved o Brain Drain (Citizens moving to other countries in order to better utilise skills)

5. Although there exist top-quality universities in the country like IITs, IIMs and more, regulation and quality assurance is not up to the mark. o Standards should be upheld. These institutions should not be reduced to rubber stamps that only have value within the country (Kalra, 2019) o The curriculum in most universities is designed through long bureaucratic processes which creates a gap between what is being taught and what the world readily needs, o Further, many Indian Universities were designed first by emulating western universities , and the same has continued since then, without optimisation and restructuring to better suit the Indian Context (EPW Engage, 2019). Knowledge Economy in the age of Disruptive Technologies New inventions, discoveries and more are occurring on a much larger scale in shorter periods of times. Theoretically, Political Scientists and economists have remarked that the modern economy has seen ‘hockey stick growth’ (that is rapid growth after a period of linear growth). With the rise of disruptive technologies and their application in fields that was previously unheard, many believe that we are the nook of the hockey stick, i.e., our prosperity and progress is about take extremely tight turn towards the ceiling (Wait But Why, 2015). However, it is

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important to note that the current revolution is being led by private companies and countries that are outside India. Further, India still does not have strong legislations for issues like intellectual property infringement on the internet, thus having a strong policy to deal with field altering technologies is not expected. Both the issues of India’s lack of meaningful participation in the impending incline of progress, and the inability to pass meaningful legislation stem from the issue of India having a weak knowledge economy. Effect of Poor knowledge economy in the age of DT On the development front: As mentioned above, India generates a large number of potential Knowledge Makers every year, however these knowledge makers are either underutilized or leave the country in search of better opportunities. The lack of incentive and emphasis on research but high-quality employees have led to India being renowned for technologically capable citizens, but technologically lacking itself. The development of a domestic knowledge economy will lead to India carving out a better niche for itself. India has been ranked as a promising hub for global innovation in the past, and the development of stronger Knowledge Economy will only cement and support this fact. On the legislative front: In his paper, Roger Brownsword states the following: “Those who have regulatory responsibilities need to be able to think through the regulatory noise to frame questions in the right way and to respond in ways that are rationally defensible and reasonable.” (Brownsword, 2018 p. 1). Legislators cannot form effective legislations on issues that they do not understand because they do not understand what these technologies can do and how they can impact the Indian society. If reliable, comprehensive and India centric information on these new developments is made available to the policy and decisionmaking bodies then a better, more informed and more comprehensive legislation can be formed for the benefit of India and its position in the rest of the world. The result of poor policy on disruptive technologies will result in citizens either being harmed by, or inefficiently using newer technologies.

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The issue however does not end with a clear legislation as there needs to be clarity of approach on all 3 fronts towards an issue where disruptive technology is an important asset. This clarity can be achieved through the creation and establishment of a “Regulatory environment” instead of a regulatory document. While this environment will fundamentally be rooted in law and lawmakers it will also require the co-operation of private actors and the citizen body at large. Once again, such an environment will be better served when the members of the environment have the physical and mental tools and infrastructure to balance conflicting interests. The task of providing such tools and infrastructure will fundamentally depend on the knowledge economy. Analysis of the impact of poor knowledge economy in relation to disruptive technology at 3 different levels The following analysis will assess the impact of the poor knowledge economy in relation to disruptive technology at 3 different levels: 1. State Level 2. Private Actors 3. Individuals State level India has 29 different states that are spread across a vast and varied geographical area. These geographical differences as well as other factors have shaped the development of immensely different cultures, which have led to different positions and abilities to deal with different contemporary issues. Thus, leading a disproportional distribution of knowledge resources throughout the country. While Bengaluru receives international praise for being a Silicon Valley in itself (Saraogi, 2019), cities in Northern India are still under 75% literacy rates (Khurana, 2020). This discrepancy is largely due to the difference in the state’s knowledge economies. While Karnataka has been historically opted for technology-based industry like aerospace and engineering, northern states are more dependent on the agricultural sector. Apart from the obvious economic implications, a lack of a strong knowledge economy can result in detrimental social and legal

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outcomes. In her report for the Brookings Institution, advocate Melissa Whitney writes that as AI grows and becomes more and more involved with daily life and affairs, the possibility of legal disputes will rise until it is as normal as human disputes, and because of these reasons it is necessary to equip judges and other judicial bodies (juries, in the context of the report) with the ability to educate themselves as to specifics of never-seen-before technologies. One of the most important suggestions the author focuses on is the incorporation of ‘Technology Tutorials’ (TT) into the court room when judges and juries are tasked with making a decision on a matter arising out of a complex and disruptive technology. A TT will be a session, seminar or other mode of information dissemination which will help the decision makers understand the technology that has been used, how it has been used and what the matter at hand is. There is a necessity that this information should remain neutral, as any taint on the information will definitely impact the final decision. These TTs can be prerecorded sessions but the author recommends that they be live in order to facilitate the asking and answering of questions by the decision makers to ensure that proper understanding is achieved (Whitney, 2019). Along with TTs the author also recommends the incorporation of ‘technical advisors’ that can help the court understand an issue that may seem out of its depth. Such advice can be availed through motion by either side of the case or the judge on the bench. A similar system already exists in India, in which the court illicit the help of Amicus Curie, or ‘Friends of the court’. The need of these elaborate systems to help judicial decision makers learn about these technologies is much larger than ensuring aggrieved parties get justice, but also because the narrative and regulation of future technologies will be formed through the decisions of these courts. This narrative will be fundamental for the future development, adoption and promotion of these technologies. By educating judicial decision makers in these unforeseen realms, the system effectively takes the responsibility of narrative shaping from the hands of the lawyers

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and into the hands of a more responsible and accountable party. Further, it also reduces the scope of inconsistent and conflicting decisions given by different judges in different states, thus lending the judgements to the individual thought processes of judges. In a country as large as India’s this is a problem that is seen and realised frequently. The major barrier between present day Indian courts and the implementation of these suggestion is the lack of experts that can provide the expertise and information at the scale that is required by the Indian Legal System. Poor knowledge economies are also inconducive to the nation’s larger strategy of self-reliance and self-sustenance. In order to reach a state of self-reliance India must be able to compete with the outside world, especially in emerging areas such as disruptive technology and knowledge-based assets. Countries that are leading these fields have a ‘head start’ over India because of their existing infrastructures, however merely recreating infrastructures will not be enough, in order to improve the country’s competency there must be increased emphasis on the development of a population that can leverage this infrastructure properly. Private Actors Private actors refer to independent bodies that aim to leverage disruptive technologies in the form of goods or services in order to earn a profit. Private actors have greater incentives to invest in R&D because patents and other proprietary rights allow private actors to establish monopolies over their developments. However, Private actors also incur greater risk because, unlike the government, private actors do not have unlimited resources in the form of public revenue, private actors are thus continuously involved in efforts to reduce their investment while getting better returns. Disadvantage to local knowledge workers and firms It is important to note here that only those developments can be monopolised that classify as inventive or novel, and therefore the maximum return on R&D investment is obtained when something novel is created. This can only happen through the

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efforts of high-quality knowledge makers. In its present condition, private actors in India have incur significant investment to equip knowledge workers with the sufficient skills and knowledge that will enable them to become effective novel knowledge makers. In his book Deep Work, Computer Science researcher Cal Newport writes that in the present age of remote work and the experts-for-hire freelance economy, many businesses may prefer to pay a premium to hire a single person or group of people that can help the business achieve its goals in a shorter period of time, with high quality results, even if the said person or team is located somewhere across the world (Newport, 2016). Thus, the lack of a strong knowledge economy forms a disadvantage to domestic firms and knowledge workers and an advantage to foreign ones. Creation of ‘knowledge vacuums’ When a disruptive technology is created, but no local firm is able to leverage the technology properly, it creates a disproportionate ratio between demand and supply. While there is always a high demand for disruptive technologies, the lack of appropriate supply will create opportunities for foreign players to bring in their own products and services. This situation can be termed as a knowledge vacuum. A strong knowledge economy will be able to inform policy makers and other regulators to better regulate newer technologies that are introduced in India, the aim of the regulations should be allow citizens access to those technologies without the technologies posing a risk to the country or its people, and without depriving local firms of the opportunity to compete. A similar situation was observed in the mid-1900s in regard to the computer company – IBM. IBM held 80% of India’s computer technology market and was thus in a position to regulate the future of the country’s growth and development. IBM was refurbishing old products sold in the USA and other western countries and selling them in India, this put the Indian computer space at a disadvantage. After investigation and the subsequent removal of IBM’s operations in India, there was a group of highly

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talented computer engineers and operators that helped develop the Indian IT Space further (Sharma, 2011). Responsibility and accountability Private actors cannot effectively be held accountable by the users of technology or citizens. Private actors developing disruptive technologies or their implementations have the goal to earn a profit and thus they may not prioritise safety and other measures unless regulated to do so (World Economic Forum, 2020). In the absence of a strong knowledge economy that can be turned to rapidly and accurately review and perceive the implications and effects of a particular type of technology, technologies that are detrimental or inconsistent with the broader national strategy may find their way into India without the proper safeguards and security checks (Sloane, 2015). Also taking into consideration the IBM Example, giving the responsibility of developing a particular field or realm into the hands of private companies may prove detrimental to the country’s overall performance on the same. Individual The collection of data by private technology companies has been a hotly debated issue for quite some time now, and the rise of disruptive technologies and their implementation in day-to-day life, like management, healthcare and policy related works has just raised the concerns and apprehensions. Whether one illicit the goods or services provided by these companies is still an individual choice, however the problem is that a large part of the populace does not understand the implications of the choices they make on the internet and while interacting with these technologies. In such a case a poor knowledge economy has the following implications: 1. What, and how an individual’s data is being used is a subject of concern from the perspective of privacy rights 2. The supreme will of the platform over what goes on the platform may potentially stifle the voices of entitled citizens if not properly governed.

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3. The lack of knowledge in the minds of the general population can render them unable to differentiate between beneficial and harmful technologies that they may be required to choose between, and how they can be negatively impacted by the same 4. The lack of knowledge can lead to the lack of safeguards and protections for individuals. The Need to Indigenize Knowledge Economy There is an emerging need to have indigenous actors, who develop the curriculum as well as knowledge systems central to Indian needs, and Indian realities. Let us deconstruct and propose what does it really mean: • The need of scholarship and policy salience matters for every country when it comes to their knowledge economy. It defines their overarching risk and order management structures. It also defines their economic, knowledge, legal and other approaches. • India as a civilization has been a key centre in South Asia, when it comes to developing various knowledge systems, through various dissenting and consensus-based schools of philosophy. The contributions of various scholars in the fields of natural sciences, governance, logic, ethics, and warfare especially have had an impressive role to play in the multilingual Indian societies. As a nation-state, the Indian knowledge economy is composite, versatile, and diverse in representation. • Now, the Indic knowledge systems vary in languages and epistemic plus ontological constructs, which shows that embracing cultural heritage by means of skill-based education, and cultural entrepreneurship is needed, to not just foster cultural diplomacy successfully, but also to develop a region and knowledge-centric space for developing more culturally intelligent approaches in various fields, from management sciences to law, to ethics, to commerce, economics, and others. Of course, objective assessments are necessary, and the manoeuvrability of the knowledge proposals must be effectively put on test with an open-ended

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approach proving pragmatic effectiveness regardless of the un-Indian aspects of the “objective” systems put under challenge. In the domain of competition policy, there are two important perspectives that are required to be understood, when it comes to Indic knowledge systems: 1. Indian competition law’s policy is a mixture of American capitalism – which means the free markets policy of neoliberalism to reduce unnecessary compliances & the Asian model of a big state – where like Japan, China, Singapore, Republic of Korea etc., India also needs a stronger regulatory regime with much government representation, and accountability. Thus, having a clear anthropomorphic mosaic of both policies can work, where state-guided markets can work, provided the strategic interest of the governments and courts should be clear – to ensure that entrepreneurship at the level of MSMEs is boosted, with better returns, better redressal mechanisms and freedom to create global supply chains, with a sense of economic resilience under a legal structure. Of course, flipping should be avoided and any factors that discourage companies from leaving India must be scrutinized in the long run. 2. The second aspect to competition policy comes from estimating how these knowledge proposals from the Indic philosophical and ontological fold, with of course some epistemic basis, be practically transformed into real solutions as knowledge systems. This also has a lot to do with the field of knowledge management, where ventures adopt their strategic approaches to utilize and beyond utilizing – adding value to the knowledge and their biproducts cum precursors and the overarching system(s) of knowledge management in line with their corporate governance policies. The coherentist nature of the Indian legal system would surely resist. However, in the coming future, it is expected that the submergence of the system into the newly practical Indic knowledge systems (both government-led and decentralized (generally crafted by private actors)) would become possible, once the economic, financial, social and even the rights-centric backing would turn out to be convincing. That

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convenience would take time to counter digital coloniality, which at least in the domain of economy for starters, can fluctuate and impact the digital sources and platforms of income and reputation for the emerging MSMEs and other start-ups. The rights-based approach therefore should be coherent in making economic and ecological imperatives decided through effective dispute resolution mechanisms, which we have tried to cover in the further sections of this report. Self-exploiting the rights-based approach by arbitrarily expanding the scope of constitutional law and competition law principles should be avoided completely. The germination of positive legal notions and principles would have to accept nuances, and be clear with the realities, thereby making their transformation steeper.

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3 The Proposals for Newer Approaches This section focuses on proposing assertive solutions and options on the trajectory of related issues of digital colonialism and the limitations of the Competition Law regime in India, in line with proposing how India should shape its own considerations on digital colonialism, dispute resolutions, IP issues and other relevant matters in suggestion. We recommend proposals in the following schemes, at a limited preliminary level (for multiple stakeholders and not just government bodies and authorities): •

Decolonising Coherentist Approach towards Technology Law • Decentralise and Re-nationalise the privity of governing first Principles Rights • Reform Common Law Machineries • Assert Dispute Resolution Mechanisms None of the proposals are absolutist. Thus, we have adopted a reflective tone to suggest sustainable solutions.

Decolonization of the “Coherentist” Approach towards Technology Law Decolonization is assumed to be the utmost reverse of colonization. However, the possibilities do lead to the assumption of several issues of costs, which might be a bigger impediment. It is also important to realise that absolute decoloniality as a phenomenon, and absolute decolonisation as a policy reality is not possible, simply because the theory of decoloniality can be applied to specific problems, and generalist claims cannot be created anyways. Now, with respect to this report, the kind of

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decolonisation of the “coherentist” approach we are suggesting is clearly realist, and applicative. The ontological basis of the suggestions to “decolonise” the way technology law is understood to govern, is proposed as follows: • The Indian state has feudal public law machineries. Many at times it is a case that due to the ineptness or the unexpected lack of understanding of the norms and mores within the administrative machinery, the larger consensus related to changes and developing contemporary governance approaches fail. • Then, the way the relationship of the key actors, such as the government, the judiciary, the individual & the groups (identity and others) are not properly permeated. Sometimes, there becomes a need to define some basic relationship, while in many cases, reductionist ontologies cannot be developed to formulate those approaches. • There should be a test of assessing Permeable Indigeneity in Policy (PIP). This concept, simply means, in proposition through this report that whatsoever legal and policy changes happen, they must be reflective, and largely circumscribing of the policy realities of the country. PIP cannot be a set of predetermined cases of indigeneity in a puritan or reductionist fashion, because in both of such cases, the nuance of being manifestly unique from the very churning of policy analysis, deconstruction & understanding, is irrevocably (and maybe in some cases, not irrevocably) lost. Thus, we strongly recommend that PIP must be determined by determining that manifest reality in the following phases: a. Decide a specific subject-matter b. Check how much and what policy-matter is derivable or discoverable from the subject-matter decided. Once that is done, PIP cannot be extra-terrestrial or extravagant. It must be specific, even if largely related while a fashion of policy determination is accepted while some critical output is discovered/derived. c. Apply your thought processes/design thinking approaches and see how much amorphous and not reduced/deciphered form of indigeneity as a policy

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phenomenon in the environment is derived/discovered. In simple terms, how much complex adaptivity is discovered, which led you to conclude that manifest derivation/discovery. d. Now the derivation should not be considered indigenous, from a point of view whether it has pure cultural origins, but from whether the environment from where such derivation/discovery has happened relates to that kind of indigeneity to the policy itself. It means that something indigenous here is not being used in the context of cultural heritage in general, but in the case of policy realism, whether that derivation/discovery reflects and even in a real-time scenario, emulates the policy phenomenon. It is a different case that the phenomenon and the derivation/discovery, might be related with distinctive aspects of cultural conundrums, or historical assets per se. Since, we are dealing with how to become creative in making policies or seeking better policy ideas, the motive is not to focus on issues of research in anthropology, history, archaeology, sociology, and other fields related to, simply because we cannot opt a reductionist/puritan approach in policy determinism ab initio and ad infinitum. e. This also does not mean that design models based on Indic Knowledge Systems cannot be created ever. IKS can always be a complementary and suggestive field, which as relates or contributes largely to the design thinking approaches to derive/discover outputs, could render its own amorphous salience, and pragmatic value. This could be a much practical way to incorporate IKS in the field of technology law and policy, in general. Now, using the same PIP approach suggested, we would like to propose certain substantive and proceduralist changes which we term as “decolonization” of India’s technology law approaches: • Policy maturity comes by realising that derivation/discovery is at least done. When AI Ethics, is understood, and the intersectionality is developed in policy, it is important that the stakeholders do assess the amorphous considerations.

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•

The institutional leaps and bounds of a technology law framework, must be dynamic. How they are put into use, and why they do matter, is a case of evaluation. If the erstwhile problems of the Indian state machineries, are anywhere related to the colonial systems and laws, or the methodological biases in dealing with tech and internet governance, then a way to decolonise is to estimate the foreseen corruptibility of such norms and biases of colonial and even post-colonial (which means colonialism alone is not the reason that such norms exist, but that not much contemporary estimates have been realised to decrypt the biases, or the same have been used in perpetuation). A fungible formula could be manifestly created for specific issues, in specific contexts to delink with the policy causes and effects of such norms and biases, rendering their application immaterial and thus, irrelevant with time. It is a gradual process, which cannot be ignored. If the constitutional critique or approaches are heavily borrowed, or mis-originated from the norms of foreign countries, regardless of their colonial/non-colonial past, with India, then it means that the aesthetic and impact-based components of such legal policies are being blindly adapted – without indigenising them. Hence, the PIP framework might help here to declutter and indigenize them by virtue of policy realities. Adaptive comparative law approaches must be consultative, reflective and precise if not accurate in absolute terms. Language contributes to further indigenization. By ensuring to developing language and script-conscious environments of understanding policy interpretation, analysis, deconstruction & understanding, leading to optimal or real actualization, a larger populace of the Indian people can be made accessible to contribute to policy realities. In general, it can also shape the Union Government and the State Governments’ entrepreneurship initiatives because therein, a mature and emerging market of opportunities can be sought through people, who were earlier disabled due to limited use of languages. Hence, technology policies must be very sensitive towards knowledge economy realities, provided that the knowledge economy realities are

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•

central to democratisation via promoting Indic languages. Additionally, this must not be limitedly seen from the lens of opportunism. The Indian state is responsible to ensure that access to governance institutions becomes possible. Or else the enforcement machinations would contravene the intelligible considerations for anyone to even understand what economic and social rights under the Part III of the Indian Constitution they have and how they can, under pragmatically derivable indigenous constructs, can be enforced. How it is done also, is not an act of liability but of precision and due care. The relationship of any technology asset with relevant stakeholders in public law would change and transform, based on the way the vulnerabilities develop. Hence, the risk-based approaches must be understood to prevent collateral damage per se as vulnerability to indigenous environments is estimated.

Decentralization and Pseudonymization of References of Action Related to First Principles Rights The question of enforcing first principles rights, often also considered as basic human rights is taken aback, with a sense of conventional sentimentality, or misguided sensitivity. Or often the structure of enforcement is either heavily centralised, or discretely federalised, without clear policy estimates. The PIP formula suggested as before can be suitably applied even in this case as well to check how the Part III of the Indian Constitution can be constructively revisited, which does make proper sense after all. Since digital colonialism is the area of focus, we suggest the following: • There must be basic reforms in asserting rights-centrism at some practical level, because due to the exigencies of norms and biases which reenforce the post-colonial attributions of the Indian state, by its own ineptness, causing severe or limited or even minimal yet significant disregard of the fundamental rights or other legal rights of individuals and companies, must be avoided. Hence, some approaches, which are practical enough to be considered as objective in legal policy, must be reformed gradually.

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•

Once the same happens, the privatisation of rights-based shelter and protection by companies must be prevented. There will be uncomfortable commercial, technological, and legal exigencies that will emerge, which could contribute to the risks that the State might have to deal with. In that case, the State must adopt an approach of delimitation where it ensures that its own spaces and tools of enforcement and justice are not equilibrium-centric for imaginary achievements in policy. Instead, they should be adaptive and naturalistic. There will be remnant policy nuances, and so those first-order, second-order and third-order policy effects, which must be understood, or at least observed. In specific cases – where companies would not accept leaving self-regulation, the State cannot adopt a coherentist approach per se. Then it also becomes a question of strategy, diplomacy, and economics. There, assessing the impact of conflict polities and economies created or encouraged by such self-regulations must be audited and proven, properly. Cooperation paradigms and routes must be established, howsoever the state can intend to proceed with, which again, must, as a caveat, must always ensure that those pragmatic policy realities of law enforcement and rights protection are never violated or derogated largely. The same applies to the reasonable restrictions under Part III of the Indian Constitution since the State might in any case have to prove a case of reasonable restriction. How the same is done, must be impactful, and sensible. Decluttering and de-hyphenating the rights-based approach is extremely important. In fact, we propose it should be a first priority medium order risk, simply because the intersectional approach of making and ascertaining cluster of rights, without addressing the derivable and discoverable attributions could be problematic in the realms of constitutional and policy interpretations – which thus, would force the state machineries to act arbitrarily due to severe risks, thereby getting back to coherentist mechanisms. It must be understood that what we call as positivist or coherentist now, could render its own policy irrelevance if makes not much sense in application. It means that coherence, regulatory instrumentalism & technocracies

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are 3 kinetic stages, which keep transforming alongside, in the linear/cyclic trajectories of policy by practice. The Indian state therefore must also ensure that the linear and cyclic trajectories must be carefully understood – so that sensible methods can be derived/discovered. The fact that disruptive innovations have escalated the pace of those trajectories, is why governments around the world are facing inabilities to control the matter and establishing routes of cooperation and reducing co-dependency.

Reform Common Law Machineries in Public Law and Technology Over the last four decades, the modern technology revolution has been driving the technical advancements in question. Innovations in the information sciences are focused on collecting, processing, and analyzing vast amounts of data that have consequences for a wide range of research and development. As a result of these advancements, a wide range of industries will reap substantial social, economic, and productivity gains. Rapid progresses in information technology are transforming the way people work, consume, play, and engage with each other and their environment. Technological advancements will be influenced by government policy, which will need changes in laws and regulations. On the other hand, the current machinery that is in place to resolve the problems that new technologies bring is still oldfashioned. Common law mechanism is still a prevalent and is generally preferred by the courts. In fact, not just in technological-imbibed issues, but even in cases relating to public law, that must, after more than 7 decades of independence, not be a way in which independent judiciary of an independent country must adopt. With the advent of these technologies, the public's worry about the numerous dangers that arise when judgments are made by computers instead of people is growing. Truthfully, the worry is legitimate considering the country’s coyness in terms of empathizing the people after willing to accept these advances and implement them in the system. Artificial Intelligence (AI) has been the subject of a great deal of discussion about ethical, safety, and regulatory issues.

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Legislators are faced with a new challenge: crafting law that does not impede AI progress, but instead protects the public from the risks that may arise when computers replace human judgment. The fast growth of AI technology is at odds with the relative slowdowns of state and national legislators, as well as their lack of competence. Our courts may be the first to confront these new legal problems. Typology of Regulation throughout our history The technology sector, which relates to a category of stocks relating to the research, development, and/or distribution of technologically-based goods and services, is comparatively new sector, as compared to public law. Therefore, since technology is a new and independent emerging sector, the understanding of its regulation would flow from comprehending the past experience. After the independence, India tested to implement a socialistmixed economy model, wherein the state retained control over some of the prominent sectors of the economy, like heavy industries and utilities. Even though private sector activity was permitted, the government tried to regulate it through licensing and quotas relating to intermediate goods’ imports and exports. These regulations were complemented by high tariff. Therefore, the governments were not only a manufacturer and manager of these tactically vital goods and services, it also exercised uninterrupted control over the productivity. Sometimes it even linked prices of private sector commotion. Its regulatory actions, then were hardly be labelled as independent. It cannot be denied that the process of domestic reform and external liberalisation is still continuing. Yet, in various sectors, the profile of a producer has undergone a significant change. With private firms co-existing with government firms in many sectors, which were previously government monopolies, like electricity or telecommunications, these changes are visible on the face of it. The harmony between decision-makers and stakeholders was after it was suggested that independent regulation is required in every sector to guarantee a level playing field. As a result, independent regulators have been constituted in various sectors, starting with electricity and telecommunications, and the number is still on the rise. Due to market failures prompted by anti-competitive actions or sometimes due to specific technical reasons, the expansion in the

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sectors cannot be left to unregulated markets. Thus, some form of regulation of the market process is needed. Sector regulators are important as individual sectors have their own characteristics which, in turn, determine the nature of regulation. These provide orderly procedures and protect consumer and investors from market failures and anti-competitive actions in a particular sector. Technological transition People who utilize the court system present evidence and arguments to the judge online or via some kind of electronic communication in the first generation. In essence, judgments are moving from the courtroom to the internet these days (Fountain, 2001). It will be able to establish expanded courts in a digital society, where we go beyond the judgments made by judges to a diagnostic system that guides individuals about their legal alternatives, how to gather evidence and alternative dispute resolution methods (Dixit, 2004). Utilizing technology to settle conflicts without lawyers or the conventional court system would be the second generation of using technology to change the legal system, which Richard refers to as "outcome thinking." With predictive analytics, it's quite possible that within a very short period of time, we'll have systems that can anticipate the result of court cases based on previous judgments (Susskind, 2010 pp. 99, 217-225). Imagine if individuals could utilize a machine-learning algorithm to produce a prediction about the probable result of a case and then accept that projection as a binding decision instead of waiting for a court date (and the support of the conventional legal system). Technology effects on common law regulations As well as having a direct impact on innovation and technological progress, regulation reform and regulatory reform have a direct impact on technology development. If some laws become outdated or inefficient due to technological advances, this is the most common scenario. In the past, industries that were deemed natural monopolies owing to the nature of existing technology were subject to regulation. So, for example, monopoly arrangements in telecommunications, electric utilities, and transportation have been in place for a long time

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due to concerns about public service and national security. Over time, the technologies that support these industries have evolved, reducing their monopoly status by decreasing costs and introducing new players. Changing technology has a profound impact on regulation, as is seen in the telecommunications business. Regulators in this case have obsolete rules regulating goods and services that didn't exist when the rules were created. Local telephone companies, long-distance firms, international airlines, satellite transmitters, radio hosts, broadcast tv companies, cellular carriers, fibre-optics access providers, wireless cable operators, and specialized radio services are just a few examples of how technology has blurred the lines between service providers (Barral-Viñals, 2014). This innovation is resulting in new multimedia goods as well as the increasing merging of broadcast, computer technology and entertainment. Nevertheless, in many countries, these providers and goods are still governed by laws based on the previous technical system. Information technologies may change a sector's operations and put the framework of regulation into doubt. As transaction costs have decreased and the simplicity with which they may be carried out has been enabled by electronic networks, regulatory changes have become more necessary. Electronic money or digital currency, as well as electronic data exchange, have the potential to further alter financial markets, both nationally and internationally. Also in the field of social regulation, new goods and processes may outrun existing regulatory frameworks. Role of ICTs in Judiciary and public sector Worldwide, governments are investing in information and communication technologies (ICTs) in order to simplify and upgrade judicial systems in light of the organizational and institutional simplification associated with digitalization. The review of the changes caused by the digitization of this sector, as well as the impact digital technology has on pre-existing institutional settings, and the broad value underpinning judicial duties and enacted by judicial power, has received very little attention from researchers, with very few notable exceptions (Reiling, 2009). Information and communication technologies have a significant impact in a number of ways on how the law is applied, including standardizing systems and processes, guiding

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the collection of data, improving access to justice and helping identify relevant case law and jurisprudence, and providing guidance to judges' working practices and writings. The increasing importance of the regulations required to deploy technology in this area is a significant indicator of this view of the function of ICT in the judicial system. As a result of recent empirical research, the article examines how technology interacts with law in e-justice systems. As a rule, public sector ICT adoption fails to address the intricacy of organisational, administrative, and judicial effects that ICTs have once deployed to reform, modernize, or rationalize the public sector machinery (Cordella, 2012 pp. 512-520). In this way, ICT-enabled reform in the public sector undervalues its effect on the context of public sector service delivery. This is especially apparent when ITCs are used to change the judicial sector's service delivery processes and systems. It is not assumed by the instrumental view of technology that organizational activities or processes are implemented into technology in holistic terms, but that they will be described in a machine-representable and coupled manner to accommodate the logic underpinning technological components used in that specific context. Ontological framings, for example, differ in how they organize the universe, thus the holistic notion of technical simplification is rendered meaningless once it is understood that alternate technological products reduce complexity into their various logical and developmental objectives. To handle the world's complexity, technology has developed a functional logic that reflects the logical sequences that make up the operational language of ICT (Kallinikos, 2005). To describe the classes and connections that are used to build ICT, the complexity of the system must be minimized. Because they divide activities and domains within which they will function, ICTs clearly delineate operational limits within which the information systems will operate. In addition to creating causal and instrumental relationships, information technology also stabilizes these relationships into standard procedures that make them difficult to alter. When these relationships are standardized into reliable scripts, the kernel of the system is created.

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Technology in judicial matters Legal technology has focused on supporting lawyers and their employees in some of their daily tasks, such as email, accounting systems, word processing and other tools. Some activities, such as document analysis and document writing, may now be automated utilizing technology. Most practitioners today come from law schools that are still producing 20th-century lawyers when we need 21st-century lawyers to satisfy the demands of businesses and people who want a lower-cost legal alternative that is accessible and available online. When it comes to legal jobs, it's now possible for computers to perform some of it, which was previously inconceivable. It is common for large conflicts to include many papers that must be analyzed. These papers are usually reviewed by legions of young attorneys and paralegals. This job can be done by a well taught machine. Automated document drafting is also gaining popularity. Additionally, there are technologies that can anticipate the outcomes of conflicts. Increasingly, we're seeing computers taking on duties that we used to believe were exclusively the domain of attorneys. More and more activities that were previously performed by people, such as document creation, administration or handling are now digitized and performed by computers. The technological characteristics of ICTs limit the interpretation and framing of these processes (Lanzara, 2009). Some of these developments may undermine the hierarchical connections that have controlled the judiciary for centuries, which may have a profound impact on the power and authority relationships that define discussions and, in turn, the result of legal interpretation. ICTs, in the end, create a new habitus through which the law is understood and, thus, the values that it conveys. The greater degree of functional simplicity and closure of court processes indicates the interaction between legal standards and the regulative character of technology. Instead of courts, these processes are increasingly determined by software and therefore by the software suppliers, as opposed to the traditional legal practice of courts. There are different types of software used for this. One such important software is CMS i.e. Case Management System.

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Role of Case Management Systems In the legal system, case management systems (CMSs) serve as the skeleton. You may use them to gather important case-related information, automate the monitoring of court cases, and take immediate action in administrative or legal matters. You can also use the data obtained for statistical, judicial, and management reasons. This forces courts to standardize data and processes. Procedural law and court procedures are coded into CMSs, which reduces the traditional impact of courts and judicial operators on the interpretation of procedural law (Steelman, et al., 2000). Parties in a lawsuit and courts use electronic filing to share procedural papers. In order to automate current court processes, CMSs have been created. Code of Procedures guidelines are implemented in the system to rationalize procedural flow. A black box is created in the software code and system architecture that eliminates all other interpretations of procedural laws and replaces them with the black boxed interpretation. These changes have a wide range of consequences for society. To facilitate information sharing and coordination, case management systems may be built to link to other courts and related judicial systems or municipal agencies (Barral-Viñals, 2014). Incorporating case management options and information technology across courts and other appropriate authorities has many benefits, but it also comes with a number of obstacles in the form of organizational culture, information dissemination, and privacy policies, as well as technical issues that reflect differences in information system automation, to name just a few (Harlow, et al., 2020). Government Regulatory Functions in Technology Sector studies suggests that the reforms in India deregulated local business and steadily reduced tariffs to join in India into the global economy. But the policymakers have, by and large, not made radical passages to relieve the blockages compelling competition in markets. Within the government, numerous key drivers of change can be recognized regarding the regulatory scenario. An essential driver is the political and administrative governance which comes from the Centre. One of the crucial development urgencies of the government is to improve the

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value of government business interface at all levels through ministries. The government must allocate a great deal of prominence to initiate a range of regulatory reform initiatives to fast-track private sector investments and enable significant cost savings for the private sector. Technological development and product commercialization are intimately linked to government policy and market interactions in today's world. It is impossible for the private sector to create and deploy technology without working with the marketplace and taking public policy into account. Also, for the same reasons, it is rare for the government to be successful in deploying new technology to accomplish public good goals without working closely with industry and market participants throughout R&D and deployment phases. To make matters worse, government investments in R&D alone are seldom sufficient for technological adoption to occur. Direct government funding for R&D has historically been less essential for commercial success than its support for dissemination and usage, according to historical evidence. Government investment in R&D is essential, but it must be complemented by standards, incentives, knowledge, and education. In terms of economics, what counts is if R&D can be linked successfully and promptly with marketing, manufacturing, and financing. To encourage industry investment, it is possible to alter technological features, market size and certainty, or industry views of the market or technology.

Recommendations on Dispute Resolution Mechanisms With the introduction of alternative conflict resolution, individuals now have a new means of resolving their disagreements. The rapid resolution of conflicts in Lok Adalat has gained widespread public support, resulting in the emergence of a new force in alternative dispute resolution, which will undoubtedly reduce the pending cases in law courts. There is a critical need for justice to be administered through alternative dispute resolution systems. Hence, in this portion, we have only laid down the recommendations for developing some schematic background and have not suggested specific solutions.

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The ADR movement must be accelerated as apart from significantly reducing the burden on the courts, this approach provides quick justice at the doorstep without incurring significant costs. If they are properly implemented, they will truly fulfil the aim of social justice for the disputing parties. Competent Parties Companies Previously, the Company Act 1956 governed the company's activities. According to the Union Government, the provisions of section 465 of the company act 2013 are applicable insofar as they pertain to the repeal of the 1956 Company Act. After gaining President of India's assent, the Company Statute 2013 repealed the old 1956 company act and took effect in September 2013. The act enacted by the Indian Parliament regulates different corporate operations such as director appointment, dissolving of the company, and so on. Additionally, these acts consolidate and reform the legislation governing corporations. The company act, 2013 makes several changes to the way businesses operate and establishes alternative dispute resolution as a primary mechanism for settling disputes between parties involved in corporate affairs. Section 442 of the Companies Act provides an innovative method for parties participating at any juncture of the proceedings to choose between Mediation and Conciliation. The Government has notified the Companies (Mediation and Conciliation Rules, 2016 ("M&C Rules") in exercise of the powers granted by Section 442 read with Section 469 of the Companies Act. The M&C Rules establish a method for parties to resolve disputes via the use of alternative dispute resolution mechanisms at any level of the action all before the Union Government, "Tribunal," or "Appellate Tribunal." The National Company Law Tribunal ("NCLT") is a "Tribunal" established pursuant to Section 408 of the Companies Act, while the National Company Law Appellate Tribunal ("NCLAT") is a "Appellate Tribunal" established pursuant to Section 410 of the Companies Act.

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The M&C Rules are significantly different from the previous mediation and conciliation provisions in India. The provisions of the M&C Rules are largely modelled after the Mediation Rules and conciliation provisions of the Arbitration & Conciliation Act, 1996 (hereinafter called as the A&C Act). However, the M&C Rules have been amended to include the following new provisions: •

•

Rule 6 allows for the appointment of a Mediator or Conciliator and requires the Union Government, the NCLT, or the NCLAT to refer outstanding matters to mediation or conciliation upon receipt of an application in Form MDC-2 together with the required fee. The ADR processes of mediation or conciliation may be launched with the parties' permission or when the Court determines that there is a possibility of resolution through ADR procedures. During ten days before to a session, or within a shorter time period at the mediator's or conciliator's discretion, Rule 11 requires each party to submit the mediator or conciliator, and also exchange among themselves, a brief memorandum setting forth the problems to be resolved. Rule 11 is analogous to Section 65 of the A&C Act, except that Section 65 of the A&C Act requires the conciliator to request information. Rules 25 and 26 appear to conflict with Sections 73 and 74 of the A&C Act. Parties may prepare and execute a written settlement agreement pursuant to Section 73, which shall have the same validity and effect as an arbitrary award on agreed terms delivered by an arbitral tribunal under the A&C Act. However, pursuant to Rule 25, any settlement agreement reached during conciliation shall be transmitted to the Union Government, the NCLT, or the NCLAT, and pursuant to Rule 26, the Union Government, the NCLT, or the NCLAT shall make an order resolving the dispute in compliance with its provisions.

According to Rule 29, the parties shall refrain from initiating arbitral or judicial procedures in connection with an issue that is the topic of the mediation or conciliation, unless such actions are essential to safeguard the parties' interests. While the Rule is

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analogous to Section 77 of the A&C Act, Rule 29 also allows for a comparable restriction in the event of mediation. Consumers While several ADR organizations have been established throughout the years. However, significant gaps persist, most notably in consumer knowledge of such disparate bodies. More significantly, consumers should understand that ADR aims to foster a more amicable resolution in which no one wins, and no one loses. Additionally, the Working Group Report on Consumer Protection emphasised its relevance, stating that ADR, namely mediation, is the most appropriate technique for a nation like India (Planning Commission of India, 2017). Increased consumer knowledge of ADR bodies can therefore significantly alleviate the otherwise rising burden on consumer forums. To do this, efforts should be made to actively promote its presence among customers across states. The Supreme Court of India has frequently emphasised the need to resolve disputes through an institutionalised ADR process (Supreme Court of India, 2005; Supreme Court of India, 2013). However, it was in the Afcons Infrastructure Ltd. case (Supreme Court of India, 2010) that the Supreme Court determined that all consumer disputes, including those involving a trader/supplier/manufacturer/service provider seeking to protect his business/professional reputation and credibility or product popularity; disputes between suppliers and consumers; disputes between customers and banks; and disputes between developers/builders and customs, are governed by the Consumer Protection Act. Additionally, the Consumer Protection Bill of 2015 promotes mediation as an alternative dispute resolution option. The mediation shall be conducted under the auspices of the consumer forum, with a mediator chosen by the National Commission, a State Commission, or a District Commission, as applicable. The mediator will resolve the disagreement between the participants to the complaint by facilitating direct communication between them or by facilitating individual communication.

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According to Section 7 of the A&C Act, arbitration agreement means “an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.” In M/S Emaar Mgf Land Limited v. Aftab Singh & Anr case, (Supreme Court of India, 2018) the following was discussed in length: “Whether the Arbitration Act mandates Consumer Forums, constituted under the Consumer Protection Act, 1986, to refer parties to arbitration in terms of a valid arbitration agreement, notwithstanding other provisions of the Arbitration Act and the Consumer Act?” The Consumer Protection Act's section 80 (2) states that when the District Commission, State Commission, or National Commission refers a consumer dispute for mediation, the mediator appointed by such Commission shall consider rights and obligations of the parties, usages of trade, as well as the circumstances that gave rise to the dispute. Foreign bodies For the first time in contemporary India, ADR as a technique of conciliation was established and recognized by legislation under Labour Law, notably the 1947 Industrial Disputes Act. Statutorily, conciliation has been acknowledged as a good way to resolve disputes between employees and management. Later in 1996, the Arbitration and Conciliation Act was passed. The legislation on Arbitration and Conciliation is nearly identical to that found in other developed nations like the United States. The new Act ensures that everyone, regardless of nationality, has equal access to justice. It made several improvements to speed up the Arbitration process. The trust of foreign investors in India grew because of this. Minimal court involvement in the execution of foreign seated arbitral decisions in India is followed to promote India's arbitration and foreign investment climate. Failure to prevail parties have fewer options for defending themselves under Indian Arbitration Law because of limits introduced via Amendments. Indian law on the enforcement of foreign awards is governed by

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the Arbitration and Conciliation (Amendment) Act 1996, the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 ("New York Convention"), and the Geneva Convention on the Execution of Foreign Arbitral Awards, 1927 ("Geneva Convention"). The Geneva Convention no longer applies to awards that fall under the scope of the New York Convention. Section 44, Part II of the Act and Article I (3) of the Convention define and elaborate that the state would only recognise or enforce awards related to foreign states in terms of reciprocity, that this will apply the convention's provision as to where disputes between the parties arising out of legal relationships that the state making the declaration considers commercial or pursuant to an arbitration agreement for which the First Schedule of the Convention specifies. This means that a decision made in a non-notified state would not be considered a "foreign award" under the terms of Section 44 of the Act and thus would be unenforceable. Section 44(b) of the Act mandates that the Union Government issue an official notification to recognise a reciprocating party. Governmental Bodies Two enactments made up the British Rule in India's Arbitration Law. One of these was the Indian Arbitration Act of 1899, which was modelled after the English Arbitration Act of the same year. The Arbitration Act of 1899 included the preceding town as well as any additional places to which the relevant provincial government could decide to expand it. The Second Schedule to the Code of Civil Procedure Code, 1908, applied beyond the purview of the Arbitration Act 1899. The Commercial Courts Act, 2015 was amended in 2018 by the current government as part of its goal to make conducting business easier. The Commercial Courts Act of 2015 was modified by an Ordinance published by the President in May of this year. Pre-litigation mediation for all business disputes was

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implemented as a result of this modification by the government.3 Section 12-A(1) provides that if no temporary remedy is necessary, the case will be directed to mandatory mediation unless an exception applies. This section enables the Union Government to permit pre-institution mediation by legal services authorities under the Legal Services Authorities Act 1987 by notifying the authorities. The case of Oil and Natural Gas Commission v. CCE (Supreme Court of India, 1995) deals with this subject. When this judgement was handed down, one of the orders stated: "The cabinet secretary has instructed all departments and PSUs in Government of India and the Public Sector Undertakings to resolve all disputes amicably through mutual consultation or good offices of empowered government agencies or arbitration, and to eliminate litigation as a last resort." Assessment of Certain Existing Mechanisms of Dispute Resolution and their Applicability It becomes even more pertinent to look at the question of arbitrability and other forms of dispute resolution in case of antitrust claims considering a report published in 2014 that states that almost all cases adjudicated by CCI are pending before appellant authorities. It has been difficult for private claims from reaching their conclusion and consequently, aggrieved parties have been awaiting remedy (Anurag, 2020). The situation is bound to get dire when disruptive technology is brought into the picture. This portion deals with recommendations for arbitration and mediation as ADR mechanisms and how they can assist in resolving disputes. Arbitration Disputes can be settled properly and equitably through arbitration, which is a procedure in which the disputing parties resolve their differences without resorting to litigation. There are several types of agreements, including ad hoc, contractual, institutional, and even legislative. In arbitration, the parties 3

Please refer to 253rd Report of Law Commission of India on Commercial Division and Commercial Appellate Division of High Courts and Commercial Courts Bill, 2015.

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choose a neutral third party to mediate their differences. In contrast to judicial settlements, this one includes less formalities and the arbitrator of each party's choosing. For settling many sorts of conflicts including international business issues, it is available with the established less burdensome method. Arbitration is the only enforceable and legally binding alternative to traditional judicial processes currently. In the arbitration procedure, a nominated independent thirdparty acts as an arbitrator and is expected to have previous expertise with it. Like a judge, their job is to listen to both sides and then make a judgement. They will, however, promote cooperative communication rather than an antagonistic one. Arbitration does not need any credentials, although if the case involves technical issues, understanding of the sector might be helpful. Mediation As an alternate conflict resolution method, mediation has recently grown in popularity. Through an interactive and facilitative approach, it enables the parties to reexamine their common interests and come up with creative solutions. Issues are handled via discussion and effective communication skills through mediation, which is voluntary and non-binding for the parties. Even if the mediator makes suggestions, the parties are free to ignore them if they aren't interested. As a notion, mediation in India hasn't been tied to any one piece of legislation or rule of thumb. Even though formal training isn't required, some mediators have previous legal expertise, which can be useful in certain types of conflicts. Disagreements over child custody and visitation arrangements can be resolved through the services of a resolution mediator who has received specialised training in these areas. A mediator's primary responsibility is to improve communication between disputing parties and guide them toward a resolution. When the Code of Civil Procedure, 1908 was amended in the late 1990s, Section 89(2)(d) was introduced, giving judges the authority to order conflict settlement through mediation, among other methods. Those changes had their legitimacy called into question by Salem Advocates Bar Association v. Union of India (Supreme Court of India, 2003), which resulted in the creation of

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the Law Commission, tasked with examining the changes' merits while also providing methods for speedy justice. Civil Procedure (ADR and Mediation) Rules 2003 were drafted in response to this development If a disagreement can be resolved through mediation, it will be. This is the procedure in which a mediator chosen by the parties or by the Court applies the ADR Rules to settle it. Online Dispute Resolution Technology is used in the ODR field of dispute resolution to make it easier for disputing parties to settle their differences. Arbitration, negotiation, mediation, or a mix of these methods, in general are used in this process. Therefore, many people compare it to ADR's online counterpart. Using online technology like teleconferencing and new approaches like ODR complements conventional methods of resolving conflicts (Teitz, 2004 pp. 985, 990-95 ). As a result, a successful ODR is one that produces results that are on par with or better than those obtained through an ADR procedure. In recent times, courts have adopted a new technology that includes artificial intelligence to create a digital "mediator" that analyses large data to make better choices. These new methods range from a simple email to video conferencing and instant messaging. This method focuses on negotiation and mediation in the online environment, although ODR approaches include anything from negotiation and mediation to modified arbitration and modified jury procedures. Websites that employ mediation strategies to assist resolve conflicts are scrutinized and evaluated in detail. Negotiation Mediation and negotiation have a lot in common. Rather, it is a process through which the participants to a disagreement settle their differences amicably. Parties can share ideas, discover irritating differences, find a solution, and obtain a commitment from each other to reach an agreement by going through the negotiating process. The two sides come to an agreement on a course of action and strike a deal based on their respective interests. These people strive to find a unique solution that benefits both. People bargain in nearly every setting, from the living room to the courtroom, due to the mutual benefits. Dispute resolution in this manner is the most prevalent and most conflicts are resolved as a result. If negotiations fail, a neutral third party will have to step in to help

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find a solution. Both parties work together to find a solution that benefits both throughout the negotiation process of bargaining. The parties sign a settlement agreement after successful negotiation, which includes the terms and circumstances of the agreement. Conciliation A pre-dispute conciliation agreement may have the effect of removing the Court's jurisdiction over the dispute's subject matter, and this agreement may only be saved by amending Section 28 of the Indian Contract Act, as it was done in 1972 to save the arbitration contract. Now that there's a law in place that covers both arbitration and conciliation, there's no reason why the parties shouldn't be allowed to reach an agreement in advance to settle future conflicts outside the court's jurisdiction, no matter how hypothetical the situation might be. Because the Act of 1996 regards conciliation settlement agreements certified by the conciliator as equal to awards on agreed conditions, which in turn are considered as equal to arbitral awards, this becomes especially important. In contrast to judicial settlement, which is more private, arbitration is more privatized. Regardless of whether the parties agree or disagree, the judge or arbitrator renders and imposes their decisions, with or without their permission or notwithstanding opposition. Parties to arbitration have significant influence over the modalities of the arbitral procedures, save for certain nonderogatory clauses, but they have no control over the decisionmaking process unless in the case of an award on agreed-upon conditions. The Question of Third Parties Alternate Dispute Resolution mechanisms are known to be private and confidential. This perpetuates the notion that relevant parties may be left out of the proceedings or that their needs and concerns are not fully addressed. While the above recommendations may alleviate this concern to some degree, encouraging class actions may assist to a great degree as well. It has been observed that in the United States, private antitrust claims frequently are brought as class actions. Having a plaintiff can make it highly feasible and lucrative to assert claims that

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might have been too small to litigate on an individual basis. The American Arbitration Association supports this trend by adopting the "Supplementary Rules for Class Arbitration" which allow arbitrators to rule upon class certification, determine a class-wide award or settlement. These rules remove the presumptions of privacy and confidentiality that are normally expected. A class claim in arbitration thus gives the parties the same benefits as a federal court (Bush, 2018). It is a well-known fact that class action suits aren't that common or feasible in India. Having such a system of rules which encourages class actions in arbitration will allow third parties which are left out of the conversation in usual arbitration proceedings to be at the table. It may even allow them to be better represented than what we see n usual court proceedings in competition dispute cases. Not to mention how beneficial the removal of presumptions of confidentiality and privacy while retaining other benefits of ADR would be. As East Asian countries are aiming towards becoming global economic powerhouses, the need stronger arbitration framework is becoming stronger. One such example is that of South Korea; the country's arbitration community is looking to propose arbitration rules that are tailored to suit class action arbitration in Korea. Legal scholars are turning towards the abovementioned American framework as a guiding tool (Kim, et al., 2021). The Question of Privity, Privacy and Confidentiality in Dispute Resolution Mechanisms The question of Privity Simply put, the "Doctrine of Privity" means that a contract cannot provide anybody else the rights it confers or impose the duties that flow from it (Himachal Pradesh High Court, 2000). For contracts with third-party beneficiaries, it may be important to figure out who is legally responsible or who should be shielded from being harmed by inevitable breaches that occur periodically. The whole discussion regarding the doctrine's importance, practical difficulties, and ramifications stems from this point. The offer-and-acceptance model of consent has an innate appeal because of this definition of privity. Investor-state consent mechanisms, on the other hand, are wholly inappropriate for the current legal position.

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The question of privacy and confidentiality: First and foremost, to comprehend confidentiality, it is important to make a distinction between confidentiality and the similar notion of privacy. They may be likened to the two halves of a single coin, yet their breadth and range are vastly different. By excluding other parties from arbitral proceedings in favour of privacy, the arbitral process keeps sensitive material hidden from prying eyes. The goal of confidentiality is to keep other parties out of the arbitral process. It puts a responsibility to keep information about the arbitral procedures secret on the parties to ensure that they don't leak it. For example, this may include information about parties such as the plaintiff and/or defendant. Because privacy imposes a heavier burden than privacy on the parties to the Agreement, it discourages third parties from intervening in the proceedings while also prohibiting them from disclosing any information they learn during the course of the hearings or thereafter. So long as Section 126 of India's Indian Evidence Act 1872 required advocates to keep client conversations, counsel, and documents secret (including emails), parties to business disputes were discouraged from using arbitration as a preferred method of dispute settlement in India. Indeed, in its report to the Indian government, the High Level Committee to Review the Institutionalization of Arbitration Mechanisms in India, led by a retired Indian Supreme Court judge, Justice B N Srikrishna (Srikrishna Committee), suggested that: To preserve or enforce legal rights, or to enforce or challenge an award in court or before judicial authorities, new provisions may be incorporated into Part I of the ACA providing for secrecy of arbitral proceedings unless disclosure is compelled by legal obligation. Imposing secrecy obligations on the parties has several facets in arbitration. According to some, choosing Arbitration over Litigation has several advantages. The privacy and interests of the parties are safeguarded while the issue is quickly and efficiently resolved. This is particularly valid for businesses, as they can safeguard "commercially sensitive information." While there are several benefits to such a responsibility, we must also recognise the numerous drawbacks. The challenge of cutting out exceptions is the first of these drawbacks. In the first place, the question of legitimate public interest should be raised. This

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is an anomaly that will necessitate judicial interpretation in any country. According to the Indian context, this exemption, if added to Section 42A, may lead to a similar outcome as Section 34's public policy basis. Other exceptions to the secrecy requirement necessitate legislative intervention. For instance, insurance companies might well be required to disclose to each other or different stakeholders in the company may be needed to make disclosures; disclosures in parallel arbitrations (or two-tier arbitrations) in which both the parties and the Tribunal may be the same but the subject matter of the dispute be different. A noble endeavour by the legislature to stay up with global trends in arbitration law and promote arbitral proceedings as a preferred method of conflict settlement is undermined by the small print of section 42-A, which fails to provide clear answers to several important concerns. When it comes to effective confidentiality provisions, the questions of who, when, and what can only be addressed half-way. Institutional arbitration procedures incorporate confidentiality requirements that the courts may defer to when deciding cases. Conclusive Assessment Alternative dispute resolution (ADR) was praised by academics and executives alike in the 1980s as a reasonable and costeffective approach to keep businesses out of court and off from the type of litigation that devastates both victors and losers just as badly. Over the next several years, the ADR policy statement proposed by the Center for Public Resources was adopted by more than 600 big enterprises, and many of these firms claimed significant savings in terms of both time and money. A peaceful society necessitates the use of dispute resolution processes. People and groups can preserve cooperation by using dispute resolution processes to settle and check disputes. In this sense, it may be argued that it is the sine qua non of social existence and a necessary condition for maintaining the social order. Due to the various societal demands and conditions, several dispute resolution approaches have emerged. Disputants can learn about their differences and use that knowledge to determine which form of dispute resolution is appropriate for them. A case filed before a court of law is the most often used dispute

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resolution procedure for resolving a disagreement in its various forms. Seeing things from a bird's eye view, it's safe to say that, in the legal adjudication process, someone will lose. As it allows everyone concerned to be informed and uncoerced judgments, mediation has the benefit of leading to finality. In mediation, disputes are addressed by mutually agreeable dialogue between the parties. When compared to litigation, mediation is more adaptable, quicker, and less costly. In April and May of 2013, the European Parliament and Council enacted the Consumer ADR and Consumer ODR Directives. The Commission sets regulations on ADR processes resulting from contracts for the sale of products and the supply of services in the Directive on Consumer ADR. This Directive mandates the implementation of the basic rules: access to ADR organisations and processes, expertise, impartiality, transparency, effectiveness, justice, liberty, legality, and protections (High Court of Justice, 2015). Consumer ADR agreements are addressed under EU legislation, which provides some broad guidance on their legality. The recently approved Consumer ADR Directive established the validity of such ADR agreements and Consumer ADR agreements are going to become good law. This directive was recently accepted by consumers.4 ADR is currently only available in highly regulated industries with a legal framework. Additionally, EU legislation promotes or compels Member States to make sure that consumers in certain industries have easy access to ADR. These industries do have a wider overall ADR coverage and a larger usage of ADR by customers, as evidenced by statistics given by ADR schemes with the biggest caseloads. By mandating cross-border ADR across sectors, a specific EU legislative instrument may expand on past (sectoral) legislative requirements that have encouraged the creation of ADR systems in Member States. It's possible that an EU legal instrument might handle cross-border ADR explicitly or address ADR in general.

See Michal Malacka, “Multi-Door Courthouse Established through the European Mediation Directive?” [2016] 16 ICLR 1, 127.

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The most suitable ADR mechanisms Comparative research reveals that mediation is a type of accelerated negotiation when looking at the processes of "mediation" and "arbitration". The outcome is in the hands of the parties. The mediator is powerless to decide. Only the parties to the dispute can agree to a settlement. The exchange of information is always done on a voluntary basis, and it is usually kept to a minimum. The parties share information to help them come to a decision on their dispute. Using a mediator's guidance, the parties are better able to identify and comprehend one other's points of view and interests. The process of mediation is informal, and the parties take an active role. Individual sessions with lawyers are done jointly and privately as part of this procedure. The mediator does not, however, make decisions. A mediator serves as a catalyst for dispute resolution. He's in charge of things a lot more now. The mediation procedure provides the parties with several resolution possibilities. On the other hand, ODR is a more comfortable, cost-effective, and efficient mechanism. ODR, being a newer kind of alternative dispute resolution, may have the advantages of being more cost-effective, faster, and more convenient than traditional ADR and litigation. Because of this, ODR has the reputation of being cold and impersonal, which puts parties and mediators at a larger emotional distance from one another. When it comes to online dispute resolution (ODR), the standards of evidence and process don't apply as strictly as they do in other forms of conflict settlement. Parties can take part in a process that is tailored to their specific requirements because of this. It promotes a cooperative attitude as opposed to a combative one. Speedy Dispute Resolution: ODR has the benefit of being faster at resolving issues than traditional ADR. Whereas ADR might take months to resolve a dispute, ODR claims to settle them in a matter of weeks. In addition, because of the internet's international character, parties and their counsels in various time zones can communicate with less difficulty. Furthermore, the internet makes it possible for parties to quickly and readily accessible data and other case-related information. Aside from being easily accessible, e-mail makes scheduling ODR procedures easier because no phone or fax numbers are tagged throughout the process.

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ODR is a non-confrontational technique: It allows the adjudicating authority to settle the disagreement impartially and only based on the merits of the case. Another benefit of asynchronous online discussion is that it gives the participants time to think about their viewpoints before responding. Such a system is also useful in balancing out any economic or other power imbalances that may exist between the disputants, since there may be cases in which one side is a small-time producer or supplier, while the other party is a worldwide corporation. Neutral forum: The internet provides a neutral forum for adjudication as well as the "home advantage" that one party has previously had. ODR is a confidential process: Using conflict resolution procedures is common because it allows disputants to openly discuss issues without fear of them being exposed to the public or to a court. Confidentiality should be regarded as significant or required by both parties, and this is typically the case.

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Conclusions and Recommendations

Additional

The Recommendations 1. Technology must be treated as a distinctive sector, and its intersectional relationship with policy must be determined with a policy scheme which has a coherent yet unique legal infrastructure. The Indian State has to ensure that the infrastructure is unique to Indian realities, and is not affected by the policy qualms developed due to diplomatic relationship, but itself is domestic and autonomous enough to shape Indian foreign policy avenues. 2. Sector-specific regulators must be established to deal with matters related to technology law and regulation. 3. When it comes to shaping policy ideas in the realm of disruptive technologies, especially artificial intelligence, the Indian state must think out of the box and not pander around remnant ideas, to create a system of equilibrium. Instead, legal and policy adaptivity of the polity itself must be tested properly, so that nuanced and creative ideas are encouraged in technology policy. Again, they have to be domestically independent. 4. Deriving from not only academic resources, but also through boots-on-the-ground work & surveys – is the approach that needs to be taken with regards to governance in technology law. If Coherentist approaches are needed - it is important for the legislators to understand at the grassroot level - the implications of the same. If a technocratic approach is preferred, the domestic policy coordinates must be calibrated with some precision to gain leverage in the international community, which needs to be taken into consideration. 5. In case of Regulatory-Instrumentalist approaches, regulations need to be kept in check by bodies to ensure practical if not idealistic working of the machinery.

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6. Although digital & disruptive markets are constantly adapting & evolving, a few general mechanisms could be adopted such as a. Development of tools to define Markets where a large part of the sales take place through barter transactions & to assess the quality-adjusted price paid for a good or service in a barter transaction with a zero, or near zero monetary price (Committee for the study of the digital platforms, Stigler Center, 2019 p. 75). In digital markets, payments through barter are common. b. Mechanisms for purposes of evaluating potential competition from new firms & future innovators & entrants could be incepted. In digital markets, due to high concentration levels, network effects & control over data, it actually ends up becoming difficult to dislodge a firm once it has become dominant. Thus, attention needs to be awarded to entry conditions & the likelihood of innovation (Committee for the study of the digital platforms, Stigler Center, 2019 p. 75). The EC report states that in order to encourage the entry of firms & help them in attracting customers, it is important to ensure that multi-homing & switching are possible (Crémer, et al., 2019). c. Defining two interrelated markets, in case of platform markets since, market definition is complex in platforms which are multi sided, users on different sides of a platform may have divergent interests, definition a single two-sided market in all cases may obscure the analysis (Stigler Center, 2019, p.75). d. Mechanisms for addressing & evaluating how technological platforms are able to take advantage of consumer biases & allocate consumers to their platform by creating difficulties for them to switch to alternatives. The ECreport suggests that even where consumers harm cannot be measured, practices indulged in by firms aimed at reducing competition on the face of it should be prohibited in the absence of evidence of consumer welfare (Crémer, Montjoye, and Schweitze, 2019, p.3).

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7. Amendment of the Laws through Changes in Existing Legal Principles a. The law relating to predatory pricing needs to be broadened in its scope. The policy of not attracting over enforcement needs to be dropped. b. The imposing of the burden of proof on the plaintiff/informant/complainant should be relaxed or even shifted to the defendant/respondent perhaps in case of sophisticated digital markets where the respondent/defendant has greater knowledge & better access to relevant intelligence. c. The standard of proof also needs to be reviewed. In the case of digital platforms, there may be an underlying risk of under enforcement of the law if the courts insist on a high degree of probability of harm. d. The concept of “intermediation power” may be recognized, in addition to buyer-seller power. e. The threshold for third party access to data may be lowered. f. Firms with superior market power to obstruct should be prohibited from multi-homing so as to prevent “tipping” of the markets. 8. We recommend that for disruptive technologies like artificial intelligence, there should be a case to develop regulatory sandbox frameworks for proper auditability per se. That would democratise and even justify the regulatory considerations by the sector-specific regulators in the Union Government. 9. Knowledge economy approaches, as are regulated by standards of education and skill development, must mobilize the Indian talent, which creates better conditions in India, and is not becoming of an imperative to endorse exports of Indian talent, because that is a demographic loss of intelligible brains, and would not be commonsensically contributory to the Indian R&D and the Indian economy. 10. Targeting knowledge vacuums is an imperative, and the Indian state must take that into a larger account. 11. Indic languages must be considered a special priority as a medium of learning, along with English as a secondary mandatory language for communication and reading, to fill up the vacuums of opportunities for students and

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professionals, since their proficiency is connected with their cultural intelligence and design thinking approaches. 12. The Ministries in charge and the Government bodies need to understand that their job is not to look to the West & create or replicate redundancy from foreign regulatory instruments, but to understand, innovate & suggest policy conundrums, maybe through the PIP approach via IKS. Conclusion We consider that this is a foundational technical report, so, the recommendations are not based on providing direct solutions. We therefore consider that based on the same, further reports on the same subject-matter and other sub-issues related, with their policy approaches rendered upon, can be put into judicious use for a sense of research enquiry. We firmly seek the role of Indic Knowledge Systems, and also suggest that Indian approaches in policy must largely and all-comprehensively reflect Indian realities. We do not suggest a one-size-fits-all or a puritan/reductionist approach, because that undermines the Indian polity and society per se, and so the indigenous and local demands that come up with alongside. Hence, we will intend to come up with further models to suggest on decolonisation, dispute resolution mechanisms, shaping knowledge economy approaches and even asserting better competition policy conundrums, considering disruptive technologies (and even artificial intelligence) as a separate and distinctive sector.

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References

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Articles inside

Technology

The Recommendations

Conclusion

Decentralization and Pseudonymization of References of Action Related to First Principles Rights

Policy Paralyses in India’s Approach Towards Algorithmic and Information Governance

Economy

Technology Law

Disruptive Technologies

Related to Disruptive Technology

The Personal Data Protection Bill: Scope for Transnational Regulatory Sovereignty in Data Law

Policy Adaptations

Digital Coloniality and Privatizing the Degradation of the First Principles Rights cum Economic Conditions

of Law

The Problem of ‘Omnipotence’ and ‘Omnipresence’ in Sectors and their Intersectional Relationship

and the United States