Policy Adaptations

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

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

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

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