European Union and regulation of artificial intelligence: A step in right direction and its impact on India - The Daily Guardian
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European Union and regulation of artificial intelligence: A step in right direction and its impact on India

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In today’s world, there is little that technology cannot do, especially in the high impact sectors. However, the regulations surrounding the same have not kept up with the pace of technological advancement. Thus, forward looking legislations are the need of the hour for taking advantage of the rapidly evolving domain of Artificial Intelligence (‘AI’), while simultaneously considering the risks that such advancement poses to humankind. One such step is the recent proposal by the European Union (‘EU’) towards formulating a holistic set of regulations for AI (‘the proposed regulation’). This regulation follows in the footsteps of a series of several other regulations including EUs recommendations to the Commission on Civil Law Rules on Robotics in 2017; Commission Report on safety and liability implications of AI, the Internet of Things and Robotics of 2020; Resolution on a framework of ethical aspects of artificial intelligence, robotics and related technologies in 2020; and White Paper on Artificial Intelligence: a European approach to excellence and trust of 2020.

The White Paper focused on the twin goals of promoting AI and addressing the risks that the usage of such AI poses. The proposed regulation seeks to address these by taking a balanced approach. Its basic aim is to make the regulation of AI human centric so that none of the rights of an individual are compromised owing to the (mis)use of AI. The proposed regulation applies to AI being placed on the market, put into service and used in the EU. Perhaps the most distinctive feature of the proposal is that AI systems have been categorised as high-risk and low-risk and obligations are imposed accordingly.

The high-risk systems are subjected to multiple checks and obligations such as establishment and implementation of risk management systems, training of data models being based on already validated and tested data, technical documentation being drawn up beforehand, continuous maintenance of logs, and maintaining transparency with accuracy and robustness of the system. It also imposes certain obligations on the providers of high-risk systems, such as putting in place a quality management system thereby ensuring compliance with the standards established and carrying out conformity assessment with the already mentioned standards. It also gives an opportunity to the providers to take corrective actions in case the AI does not meet the established standards and also to inform the competent authorities in case the risk is imminent. In addition to the producers, obligations are also imposed on the importers, manufacturers, distributors, and the users themselves. The EU is also mandated to appoint the notifying authorities and bodies for carrying out the functions of assessment and checking the conformity without any conflict of interest. The conformity assessment is based on internal control methods and subject to revision in case there is a change in the high-risk AI systems. The providers are tasked with drawing up the EU declaration of conformity which shall be preserved for 10 years after the system is placed on the market.

The proposal does not only impose obligations but also aims at creating an innovation friendly environment before the AI is placed on the market through AI sandboxes. It further provides for the establishment of the competent authorities and the advisory body- European Artificial Intelligence Board. The national supervisory authority is entrusted with conducting market surveillances and reporting them to the Commission. All the bodies handling such information are required to keep the information confidential. It gives the right to the Member States to fix the penalties which are proportionate and effective. Barring a few exceptions, administrative fines of up to 20 000 000 EUR, or, if the offender is a company, up to 4 % of its total worldwide annual turnover for the preceding financial year, whichever is higher, can be imposed. There are separate fines for supplying misleading information, or non-compliance with Articles 5 and 10 (which deal with certain types of AI which are completely prohibited and others which have to follow certain requirements respectively). The low-risk AI systems have to follow the transparency obligations under the regulations, and AI systems that pose little or no risk are not covered under the proposed regulation at all.

While the proposed regulation is certainly a step in the right direction, yet it is not without its fair share of drawbacks. The biggest in this regard is the blanket exemption granted under Article 2(3) to the utilization of AI for military purposes. This leaves the entire regulation prone to abuse as AI’s involvement in the military is increasing dramatically day-by-day. With wars and espionage also playing out in the digital domain nowadays, the marriage of AI and military raises numerous securities, ethics and legal concerns. One can look at the $10 billion-dollar Joint Enterprise Defense Infrastructure (JEDI) contract awarded by the US Department of Defense for the upgradation of military technology to gauge the lucrative and risky nature of AI in armed forces. The contract drew bids from the biggest tech companies in the world such as Amazon, IBM, and Oracle, before being awarded to Microsoft. This makes civilian data, which is also handled by these companies, prone to easy exploitation by the military. Another grim instance involves the utilization of the software company Palantir in Project Maven by the Pentagon to build AI unmanned drones for bombings and intelligence. Technology has been repeatedly abused by militaries in the past, best exemplified through examples such as the NSA snooping scandal in 2013. This serves as an unpleasant reminder that limitations must be placed on the ability of the military to leverage technology, especially for powerful tools such as AI. Therefore, the proposed regulation should prescribe the necessary sanctions.

Moreover, if we look at Article 5(1)(d), it allows for data to be collected, stored and utilized for specific criminal activities. What it does not answer is the period for which the data will be stored. For instance, if the case remains unsolved, or is tied up in courtroom proceedings for years, would the data then be retained indefinitely? Additionally, under Article 9, although a risk management system has been prescribed for the AI, it has not been clarified if it will involve a human oversight mechanism, which, according to the authors, is essential in avoiding errors. Although Article 14 prescribes certain oversight mechanisms, it is unclear if that extends to the risk management system as well.

Another important issue that the proposed regulation does not touch upon, is the sentience of AI.  In 2016, the experimental Microsoft chatbot AI, ‘Tay’ went rogue on Twitter, swearing and making racist and inflammatory remarks. This was never intended, yet the AI went on this tirade after analysing anonymized data, barely 24 hours after it was made functional. There were reports of Uber’s AI in self-driving cars, unauthorizedly jumping red lights during demo tests. There was also an instance of Facebook having to shut down some experimental robots, after they developed their own language. Such a scenario raises a whole plethora of questions regarding liability, containment and rectification of actions of the AI. Which is why, by not dealing with it, the legislation leaves a lot to be desired.

Another issue that hits close to home, is the influence that the proposed regulation will have on Indian legislations in this domain. Indian policy makers have demonstrated a propensity for adopting foreign legislations, especially those from the EU, concerning technology verbatim. Our Personal Data Protection Bill 2018 borrowed extensively from the EU GDPR 2016. After the EU came out with its recommendations on flow of Non-Personal Data in May 2019, India followed suit a few months later by appointing an expert committee for providing recommendations. The Non-Personal Data Framework of India, released in 2020, again relies heavily on its EU counterpart. This trend of slightly modifying and appropriating EU regulations in India without analysing the commercial, social and political considerations of India is unfortunate. However, going by this trend, there is a high probability that the proposed regulation will also be copied by India. As a result of which, we have to keep a close watch on the developments concerning it.

Everything considered, the proposed regulation is a revolutionary one as it is the first major attempt to regulate AI.

The leadership and tenacity of the EU in tackling technology issues and passing the relevant legislations much before the rest of the world, is commendable. With some modifications, this proposed regulation can serve as an excellent legal blueprint for countries around the world who are looking to tackle AI related issues. However, the efficacy and utility of it, will be best explained with the passage of time. And that time is ticking down rapidly. 

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Legally Speaking

MP HIGH COURT SEEKS DGP’S REPLY: DOES POLICE’S FAILURE TO COMMUNICATE FULL CRIMINAL ANTECEDENTS OF ACCUSED AMOUNTS TO MISCONDUCT, INTERFERENCE WITH JUSTICE?

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The Madhya Pradesh High Court in the case Kuldeep Dohare Versus the State of Madhya Pradesh observed, recently the Gwalior bench directed the Director General of Police, State of Madhya Pradesh to file an affidavit explaining as to whether non-communication of criminal antecedents of an Applicant or Accused to the Court is a minor misconduct or if it amounts to interference with the criminal justice dispensation system. Before the next date of hearing, the affidavit is to be filled.

The bench comprising of Justice G.S. Ahluwalia observed and remarked that the court was frequently finding that the police authorities were not sending the complete criminal antecedents, in spite of the circular issued by Police Headquarters.

It was observed that the police authorities did not send the criminal antecedents of the applicant. Furthermore, it is clear that it is a clear attempt to facilitate the applicant to obtain bail by projecting that he has no criminal antecedents. The issue raised is weather the conduct of police officers can be said to be a minor negligence or it is an interference with the criminal justice dispensation system?

In the present case, the court was dealing with a bail application moved by the accused applicant for offences punishable under section 307, Section 149, section 148, section 147, section 506, section 294, section 201. On an earlier hearing, the court had observed that even though the case diary did not reflect any criminal antecedents on the part of the Applicant. The impugned order passed by the lower court rejecting his bail application mentioned otherwise.

It was observed that a reply was sought by the court from the Superintendent of Police, District Bhind as to why the important information with regard to the criminal antecedents of the Applicant were withheld by the respective SHO. The SP informed the Court on the subsequent hearing that the SHO concerned as well as the Investigating Officer in the case were found guilty of misconduct and were fined with Rs. 2,000 and Rs. 5,000, respectively.

The Court observed that since the problem was stemming from different police stations. However, the DGP should file his reply regarding the prevailing situation-

Since in different police station, this situation is prevailing. Therefore, an affidavit is directed to be filled by the DGP, State of Madhya Pradesh as to whether non- communication of criminal antecedents of an applicant is a minor misconduct or it amounts to interfere with the criminal antecedents of justice dispensation system.

Accordingly, the affidavit needs to be filled within a period of 1 week, the matter would be heard next on 08.07.2022.

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HIGH COURT OF MADHYA PRADESH: SECTION 5 OF THE LIMITATION ACT APPLIES TO ARBITRATION REFERENCE UNDER NATIONAL HIGHWAY ACT, 1956

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The High Court of Madhya Pradesh in the case Ghanshyam Gupta v. State of Madhya Pradesh and Ors observed and stated that Section 5 of the Limitation Act would be applicable to reference to arbitration under the National Highways Act, 1956.

The Division Bench comprising of Justice Ravi Malimath and Justice Purushiandra Kumar Kaurav observed and reiterated that since no limitation is provided under Section 3G (5) of the National Highways Act. The bench stated that the provisions of Article 137 of the Schedule to the Limitation Act, 1963 would apply to such proceedings.

Therefore, the court held that the limitation period for filing an appeal against the decision of the competent authority before the arbitrator from the date of expiry of 90 days is three years from the decision of the competent authority.

FACTS OF THE CASE:

The petitioner, Mr. Ghanshyam Gupta was the landowner of the land which was acquired by the Respondent, Madhya Pradesh Road Development Corporation. Thereafter, the competent authority determined the quantum of compensation payable to the petitioner and passed an award to that effect on 30.07.2015.

The petitioner being dissatisfied with the quantum of compensation determined by the competent authority. On 04.12.2019, an appeal was filled by the petitioner before the arbitrator. The appeal was dismissed by the arbitrator as time-barred filed after the expiry of three years limitation period.

the petitioner filed a writ petition before the High Court, Aggrieved by the decision of the arbitrator.

Contentions Raised by the Parties:

It is stated that Section 5 of the Limitation Act is applicable to arbitration reference under Section 3G (5) of the National Highways Act, 1956.

It was observed that the petitioner was unaware of the availability of the remedy of appeal against the decision of the competent authority, the petitioner only after consulting his lawyer, that the petitioner came to know that he could seek enhancement. Further, there is a valid ground to condone the delay.

The submissions of the petitioner were countered by the Respondent on the following grounds:

Though, in the absence of a period of limitation for filing an appeal under Section 3G (5) of the Act of 1956, it was construed that the provisions of Article 137 of the Limitation Act would stand applicable.

It was stated that Article 137 provides for 3 years period, and the petitioner filed the appeal after a delay of 4 years.

COURT ANALYSIS:

The court observed and stated that since no limitation is provided under Section 3G (5) of the National Highways Act, the provisions of Article 137 of the Schedule to the Limitation Act would apply to such proceedings.

Therefore, the court held that the limitation period for filing an appeal against the decision of the competent authority before the arbitrator from the date of expiry of 90 days is three years from the decision of the competent authority.

The court observed that there is nothing in the National Highways Act that excludes the applicability of Section 5 of the Limitation Act. However, Section 5 of the Limitation Act would be applicable to reference to arbitration under the National Highways Act, 1956 and the arbitrator has the power to condone the delay against the award, in filing an appeal by the competent authority.

The court noted that the petitioner was not aware that an appeal could be filed against the decision of the Competent Authority and it is only after consulting his lawyer that the petitioner came aware of any such right, therefore, there is sufficient reason to condone the delay.

Accordingly, the application was allowed by the court and the court directed the arbitrator to decide the case of the petitioner on merit.

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KERALA HIGH COURT APPOINTS AMICUS CURIAE IN SARITHA NAIR’S PLEA; IS A STATEMENT RECORDED U/S 164 CRPC A PUBLIC DOCUMENT?

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The Kerala High Court in the case Saritha S. Nair v. Union of India & Anr observed and appointed an amicus curia to assist the court to decide the legal question of whether a statement recorded under Section 164 of the CrPC is a public document.

The bench comprising of Justice Kauser Edappagath appointed the amicus curiae, in the petition filled by Saritha S. Nair, the prime accused in the infamous solar panel scam seeking a direction to provide her with copies of the Section 164 statement given by Swapna Suresh, the accused in the gold smuggling case.

The court appointed Advocate K.K. Dheerendrakrishnan, as the amicus curiae in the case.

In the present case, it was observed that Saritha Nair is accused of having duped several influential people to the tune of 70 lakhs, by offering to install solar power units for them or by making them business partners and by receiving advance payments for the same.

Moreover, Swapna Suresh is accused of smuggling 30 kilograms of gold through diplomatic cargo dispatched to UAE Consulate at Thiruvananthapuram.

It was observed that when the petition came up for hearing, the counsel appearing for the petitioner, Advocate B.A Aloor appearing that the statement given by Swapna was a public document and therefore the petitioner was entitled to get a copy.

Further, Nair approached the Court apprehending that certain allegation may have been brought on record against her in the statement given by Suresh. It was prayed by Nair, that the c court allow her plea, directing the production of certified copies of the said document to her, failing which she would sustain an irreparable injury, the hardship and as well as physical and mental agony.

It was observed that the Nair had had initially moved the Principal District and Sessions Court of Ernakulam, with the same request, but this was denied. The court noted and adjourned the matter to July 11, while on a petition filed by the accuse, Saritha S. Nair in the solar scam cases, for seeking a directive to provide a copy of the statement given by Swapna Suresh, accused in the diplomatic gold smuggling case before a subordinate court.

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Supreme Court issues notice in an SLP; can section 156 (3) CRPC be invoked after failing to get desired relief in a civil suit?

It was observed that before the Calcutta High Court, it was contended by the accused that the allegations made in the application under Section 156(3) CrPC fails to make out any offence against them. Further, it was submitted that a frustrated unsuccessful litigant before the Civil Court has approached the Criminal Court and the Criminal Investigation.

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The Supreme Court in the case Usha Chakraborty vs State of West Bengal observed and issued a notice in a Special Leave Petition filled, raising an issue whether in a dispute essentially in a dispute of civil nature that can a person, after having failed to get the desired relief from a civil suit, invoke Section 156(3) of the Code of Criminal Procedure?

In the present case, an FIR was registered against the accused under Sections 323, Section 384, Section 406, Section 423, Section 467, Section 468, Section 420 and Section 120B of the Indian Penal Code, 1860 following an order passed by the Magistrate under Section 156(3) CrPC.

It was observed that before the Calcutta High Court, it was contended by the accused that the allegations made in the application under Section 156(3) CrPC fails to make out any offence against them. Further, it was submitted that a frustrated unsuccessful litigant before the Civil Court has approached the Criminal Court and the Criminal Investigation, which has commenced, is for the purposes of throttling them. The petition was dismissed by the High Court observing that the materials which have already been collected by the Investigating Agency, prima facie, make out a case for investigation. The issue raised before the court was weather the same would make out an offence after the investigation is concluded is absolutely at the end of the investigation to be analysed.

Therefore, challenging this order, one of the accused approached the Apex Court. However, It was submitted that the dispute is essentially of civil nature, for which the applicant in Section 156(3) CrPC petition filed a civil suit but having failed to get the desired relief, he invoked Section 156(3) CrPC.

The bench comprising of Justice Surya Kant and the Justice JB Pardiwala, while issuing notice also stayed further proceedings in FIR lodged against the accused.

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GAUHATI HIGH COURT QUASHES NO-CONFIDENCE MOTION AGAINST GRAM PANCHAYAT PRESIDENT CITING PARTICIPATION OF MEMBER DISQUALIFIED FOR HAVING THREE CHILDREN

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The Gauhati High Court in the case Jugitawali Pawe v State of Assam and 15 ors observed and quashed a resolution expressing no-confidence in the petitioner – the President of a Gram Panchayat, as a result of which she as removed from office. It was stated that it is as per the citing no compliance with Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995.

It was preferred by the petitioner to the materials available on record to argue that one of the members of the Gaon Panchayat, the respondent. The respondent voted against the petitioner and had given birth to her third child the previous year. Moreover, by virtue of Section 111(2)(a) of the Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995, the petitioner stood automatically disqualified on the date of voting. Following, which her vote was taken by passing No-confidence motion.

It was prayed by the petitioner in the plea for setting aside the impugned resolution and for issuance of a direction to restore his client back in the office. Thereafter, to initiate fresh proceedings, liberty should be granted to the respondent, following the due process.

It was agreed by the Counsel representing for the respondent that the said member of the panchayat had been disqualified but retained on the ground that the disqualification would have no bearing on the petitioner’s case, as the impugned resolution was passed before the declaration of petitioner disqualification.

In the present case, It was noticed by Justice Suman Shyam the member had voted against the petitioner and without her vote. The petitioner would not have been ousted from office. Justice Shyam also found no dispute about the fact that the member had incurred disqualification under the law prior the date of adoption of the impugned resolution. Justice Shyam found it unnecessary to delve into other aspects of the matter which includes the procedural formalities for declaring the member a disqualified candidate.

It is observed that the impugned resolution was declared to be vitiated and liable to be set aside. Further, the Court restored the petitioner to the office of the President of the Bongalmara Gaon Panchayat with immediate effect and it was stated by the court that the order will not stand in the way should the authorities or any member of the Gaon Panchayat propose a fresh motion of “no-confidence” against the petitioner and the due process of law needs to be followed.

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Halt DDA’s demolition action against jhuggis in Nizamuddin’s Gyaspur area, orders Delhi High Court

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board, the residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

The Delhi High Court in the case Manoj Gupta & Ors. v. DDA & Ors observed and has ordered status quo on the Delhi Development Authority’s proposal to demolish jhuggi clusters in city’s Gyaspur area in Hazrat Nizamuddin. The vacation bench comprising of Justice Neena Bansal Krishna observed in the petition filled by the residents and the court granted an interim relief.

It was ordered by the court status quo till July 11, the next date of hearing.

The bench orally remarked that a ten-day delay in demolition won’t make a difference but if today it is demolished and later, we come to know that they were entitled, who’s going to… the bench will consider it on July 11, 2022 but in the Meanwhile, some protections are entitled them. Adding this, Status quo be maintained. If since 1995, they have been there, heavens won’t come down if for 10 more days they are protected.

In the plea the petitioner stated that the T-Huts settlement in the area, which was stated by the authorities to vacate. It has been in existence for almost two decades and compromise of 32 jhuggis or households.

In the plea it was alleged that the bulldozers have been parked around the camp and a DDA official has orally asked them to vacate the area and it is noted that till date no proper notice have been sent to them nor has DDA conducted any survey of the area.

Furthermore, the DDA did not provide any alternate arrangement for their rehabilitation which resulted in extreme distress among the residents.

Moreover, it was admitted by the petitioner that the land in question belongs to DDA and they may seek that status-quo to be maintained at the site. It was urged that the residents should not be physically dispose or evicted from the demolition site until the survey is conducted and rehabilitation is provided to the residents as per the DUSIB policy of 2015.

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board. The residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

It is observed that in the case Ajay Maken v. Union of India, Reliance is placed on the Supreme Court decision and the High Court decision in the case Sudama Singh & Ors. v. Government of Delhi & Anr, it was held in the case that that removal of jhuggis without ensuring relocation would amount of gross violation of Fundamental Rights under Article 21 of the Constitution. Further, it was held that the agencies conducting the demolitions ought to conduct survey before undertaking any demolition.

It is submitted that these observations would apply across the board, in the entire NCT of Delhi.

Advocates Vrinda Bhandari, Shiyaz Razaq, Kaoliangpou Kamei, Jepi Y Chisho and Paul Kumar Kalai, represented the petitioner.

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