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Policy & Politics

WILL MAMATA BE THE FACE OF NATIONAL POLITICS?

Political forces together failed to knock Mamata Didi out… The results of Assembly elections in five states have given several clear indications. Mamata Banerjee’s victory in West Bengal has rekindled a new hope within the Opposition at the national level that the BJP can be challenged provided the strategy is right. So the moot question is: Will Mamata become the face of national politics now? The poll results have given a clear message to Congress to appreciate public sentiment and respect the grassroots leaders.

Vijay Darda

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A midst tall claims about the West Bengal Assembly elections, I was constantly telling my BJP friends that Mamata Banerjee will score a hat-trick. BJP will not be able to cross double digits despite all its efforts. I was saying all this not as a politician but as a journalist based on my analysis. I have always analysed Mamata Didi’s politics in depth. She is a grassroots leader and has a first-hand experience of overthrowing the Left from power. She has suffered lathi blows and knows how to break through the opposition’s defense.

The Bharatiya Janata Party was determined to oust the Mamata Banjerjee-led Trinamool Congress out of power in this Assembly election. For that, it had started the groundwork around two-and-a-half years back. All the big-time leaders, all the outfits associated with the BJP and the RSS deployed all the power and resources at their disposal. They polarised the Hindu vote. Star campaigners were fielded and they worked day and night for this purpose. The Sangh undertook a door-to-door contact programme to woo the voters. The ‘Chanakya Neeti’ of ‘Saam-Daam-DandBhed’ was fully utilised. As the election season approached, several political developments took place that took everybody by surprise. Many leaders who had gained political stature, thanks to Didi, crossed over to BJP. An atmosphere was created that indicated that Didi was all set to lose power this time..! But was Didi the one to give up so easily? She responded to each and every attack with her own firebrand counter-attack. She left her constituency and went to Nandigram and contested against her once confidante and now BJP candidate Suvendu Adhikari, who had left her and was contesting on a BJP ticket. The BJP’s strategy was successful. Mamata lost the election in Nandigram. Mamata Banerjee met with an accident during the election. Her movement became restricted. But Didi once again proved that she is a grassroots leader in West Bengal. No matter how many allegations of corruption and hooliganism have been levelled against her and her nephew Abhishek Banerjee, the people’s mandate went in her favour. Rather, Didi has emerged more powerful than before. Had Didi got the full support of the Congress, the situation would have been even more better. The Congress stopped campaigning in the fifth round, but by then the Congress had inflicted whatever damage it could on Mamata. Due to these initial mistakes, the possibility of division of Muslim votes increased. The BJP got its clear advantage too. The Congress and the Left suffered a humiliating defeat. Adhir Ranjan Chaudhary knew this. But it is clear that people have voted for Mamata to keep the secular forces strong

This election result of West Bengal can prove to be a big game changer in national politics. But before discussing this aspect, let us take a look at what happened in other states. Political analysts say that people have clearly told the Congress to appreciate the public sentiments and treat them accordingly. The Congress should respect the grassroots leaders who are closely connected with the people and let them take over the reins in the party. Kerala is a state where no party came to power for the second time in a row. This is for the first time that the Left retained power. The reason for this is that the Congress replaced those who were grassroots leaders and the high command handed over the leadership to K C Venugopal. Rahul Gandhi is an MP from Kerala. Analysts are saying that the Congress imposed Narayan Sami in Puducherry due to which they lost Puducherry. There was a lot of resentment against Sami due to which they lost power. Despite this, the Congress did not learn any lesson. The BJP’s strategy was successful in that they had already sacked the government of Puducherry.

In Assam, the Congress contested jointly with Badruddin Ajmal’s party All India United Democratic Front, but the strategy the latter had devised failed. Hemant Biswa Sarma was a grassroots leader, but after he joined the BJP, the Congress was in tatters and the result was that despite taking Ajmal along, the Congress could not get the desired results.

As far as Tamil Nadu is concerned, I had a conversation with Stalin and also those close to him. When I went there, it was clear to me that Stalin would come to power because he had been working at the ground level for years. After Jayalalithaa’s departure, Palaniswami’s government was facing serious allegations of corruption. Stalin took full advantage of it. Despite the BJP’s help, the AIADMK could not do anything there. As far as the Congress is concerned, it was clearly at Stalin’s mercy. Stalin was not happy with the Congress, but considering Sonia Gandhi, he had allotted 25 seats to the Congress but the party lost the high-stake political battle there too.

Let us now return to West Bengal where Didi has shown amazing power. She has not only retained power in West Bengal, but also ignited a ray of hope in the opposition politics of the country. Now it is to be seen how the secular forces in the country come together and what strategy Soniaji adopts. Will she adopt the strategy like when she went to Mayawati’s house on foot? Will she adopt the same strategy and move forward with the veterans of every state..? Or become a part of UPA-2 in which Sharad Pawar succeeded in bringing everyone under one flag by becoming its convener? It is difficult to say anything right now but it is crystal clear that the fight ahead is not going to be BJP vs Secular Force but Narendra Modi vs all. In this scenario, it will be interesting to watch what Mamata Didi’s stand will be!

BEFORE I CONCLUDE

Elections are over but what is worrying is how many people might have got infected with the coronavirus as a result of their participation in election gatherings, rallies and congregations and what the virus will do to them. It is reported that coronavirus is most widely spread in Maharashtra, but the data dished out by the Government of India is very shocking. In the states where Assembly elections or panchayat elections were held, Covid-19 cases have increased exponentially due to rallies and meetings. In April, the number of Covid-19 patients increased by 5412 per cent in Assam, 1266 per cent in West Bengal, 1229 per cent in Kerala, 1227 per cent in UP, 563 per cent in Tamil Nadu and 359 per cent in Puducherry. This is something called a gross negligence!

The author is the chairman, Editorial Board of Lokmat Media and former member of Rajya Sabha

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Policy & Politics

Analysis of the Medical Termination of Pregnancy (Amendment) Act, 2021

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INTRODUCTION

Abortion is an essential component of sexual and reproductive health care. It constitutes a reproductive choice of a woman to either continue with or terminate her pregnancy. But is it so easy to realize such freedom of choice? Amidst the age-old social stigma backed by poor legislation in India, women are often rendered helpless to access abortion care even in the worst of situations. Abortion remains stigmatised in India, even within the medical fraternity, as IndiaSpendreportedin September 2020. In such a scenario, the availability of safe abortion care to the vulnerable women becomes even far moredifficult.

The national rape-related pregnancy rate is5.0%per rape among victims of reproductive age (aged 12 to 45). Only 11.7% of these victims receive immediate medical attention after the assault, and 47.1% do not revieve any medical attention related to the rape. A total 32.4% of these victims do not discover their pregnancy until they have already entered the second trimester and only 50% are able to undergo abortion.

THE MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) ACT, 2021

The MTP (Amendment) Act, 2021aims to ease the pain of such rape victims and facilitates the termination of the unwanted pregnancy upto a period of 24 weeks. The upper gestational limit has further been removed in case of pregnancies accompanied by substantial foetal abnormalities. The amendment is a welcome step in addressing the physical and mental health issues concerning pregnancy in ‘vulnerable’ women, including rape victims. For a better understanding, the amendments in the MTP Act have been summarisedbelow.

Amendments made via the MTP (Amendment) Act, 2021 Setting up of MedicalBoards Section 2 of the MTP Act, 1971 has been amended to provide for the definition of “Medical Board”. Subsection 2D of section 3 further provides that the Medical Board shall consist of a Gynaecologist, Paediatrician, radiologist and such other members as may be notified in theOfficial Gazette by the State Government or Union territory. The powers of such a medical board have been prescribed under subsection 2C of Section 3 of the MTP (Amendment) Act, 2021.

‘Termination of pregnancy’defined The ‘termination of pregnancy’ has been defined under Section 2 (e) of the MTP (Amendment) Act, 2021 as “a procedure to terminate a pregnancy by using medical or surgical methods”.

Single Registered Medical Practitioner’s opinion sufficient to terminate pregnancyofless than 20 weeks Earlier, the opinion of at least two registered medical practitioners was required to terminate a pregnancy between 12 – 20 weeks. Now, Section 3 (2) (a) of the MTP (Amendment) Act, 2021 has been amended and seeking a second medical opinion has been done away with for terminating a pregnancy of less than 20 weeks.

Upper Limit for Termination of Pregnancy Extended to 24weeks The prodigious change sought to be achieved by the recent amendment is to allow for the termination of pregnancy upto 24 weeks in case of rape victims. Section 3 (2) (b) of the MTP (Amendment) Act, 2021 aims to relieve such rape victims from the extended mental trauma of birthing a child conceived out of sexual abuse.

Medical Board to have the final say in case of substantial foetal abnormalitiesSection 3 (2B) has an overriding effect on subsection (2) of the MTP (Amendment) Act, 2021. VideSection3(2B),iftheMedicalBoardhasdiagnosedsubstantialfoetal abnormalities in a particular pregnancy, then the provisions of subsection (2) relating to the length of the pregnancy shall not apply to the termination of pregnancy by the medicalpractitioner. In other words, the upper gestational limit in such pregnancies have been removed subject to the diagnosis of the Medical Board.

Anonymity of the women undergoing abortion

Reinforcing Puttaswamy judgement, the right to privacy of the women undergoing abortion has also been recognized. Section 5A of the MTP (Amendment) Act, 2021 restrains the medical petitioner from revealing the particulars of any woman undergoing abortion except to a person prescribed by law.

CONCLUSION

The MTP (Amendment) Act, 2021 is no doubt, highly ambitious at streamlining the abortion laws in case of irregular pregnancies. However, the implementation of this Act can itself prove to be a challenge in the coming times. The formation of the Medical Boards in various states has been left at the hands of the State governments without any strict plan for action. Adding another layer of barrier for availing abortion care will only create further delay in terminating such pregnancies.

Furthermore,theamendmentsfailtoaddressthechallengesthatwereearliersoughttobe covered under the Medical Termination of Pregnancy Bill, 2014.The vulnerablewomen should have been given access to medical procedures from the earlier weeks of pregnancy for safer termination of such pregnancies. Since90%of such women seek abortion before 12 weeks gestation, training village-level healthworkers (auxiliary nurse midwives) and nurses to prescribe simple abortion pills could have helped to render safe services to the doorsteps of vulnerable women and, in case of complications, lead to timely referrals. Although the MTP (Amendment) Act, 2021 aims to do certain things right, the actual implementation of the amendments remains to be seen in future.

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Policy & Politics

Mera Aadhar, Meri Pehchaan: Privacy and security concerns

Ritansha Laxmi

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Privacy, a right essential to sovereignty of an individual and also the protection of human dignity.1 Privacy authorizes individual to make barriers around and to manage boundaries, protecting themselves from unwarranted interference in the lives, and allows people to be who they are exactly and the way they would like to interact with the world around them. Privacy helps people to create boundaries around them to restrict who has access to their body, places and things, as well as the communications and information. And State being the duty bearers for the protection of privacy.2 Therefore, the role of the state is to strike a balance between freedom and protection, rights and responsibilities. In 2001 a meeting of ministers headed by

L.K. Advani presented its report in May and acknowledged proposal for an id card, Aadhaar an identification card having 12- digit number.3 It was then issued by the government of India to each individual residing in the country. However, it has come across some privacy issues from different sections of society. Issuance of unique identification number with an aim to provide its every individual with different schemes like gas subsidy, MGNREGA, Jan Dhan yojna like benefits but it clubbed with breaching the privacy of an individual, moreover the informational privacy of the people.4 This article attempts to explore the security and privacy concerns from the perspective of people, legal and Government on Mera Aadhar, meri pehchan thereby trying to settle whether there is an infringement of the privacy or not?

AADHAAR, A BRIEF INTRODUCTION:

The conception of idea about Aadhar card came into existence in 2004 with the amendment of citizenship act by the then ruling Indian National Congress (INC) led UPA government to make a way for the National Population Register (NPR)5, a database record of all the residents of India preserved by the Census Commissioner of India and Register General. With the administrative approval for the project, Unique ID for Below Poverty Line (BPL) families by the ministry of Communication and Information Technology, the first work regarding issuing Unique IDs to BPL residents of India truly started in the year, 2008.6 It saw the amalgamation of National Population Register (NPR) under the Citizenship Act, 1955 with the UID project to comprehend Aadhaar card.7 While discussing the legal viewpoint, some jurists in their verdicts have dealt with diverse facets of privacy with regards to Aadhar and its linking, concerning the security and privacy threats.8 The judgments concerning privacy issues would be going to help as a brick for development of the idea of protection of privacy for the people of India. With these judgements and recommendations, the safe, secure, socially and politically justified legal framework can be created protecting privacy.

The perspective according to government is that it contends that the fundamental right status does not make privacy the absolute right and hence is archaic by other major apprehensions of the nation state that is to say national security of its people, frauds and fake registrations of people.

The Supreme Court in its judgment of K.s Puttaswamy9 has overruled verdicts given in the Kharak Singh case and the M.P. Sharma case, both of which said that the right to privacy is not protected under the constitution of India. On 27 March 2017, the supreme Court directed that Aadhaar card mandatory for availing benefits under welfare schemes and it cannot be done without aadhaar number. Though government tried to check every possibility of making it compulsory for other purposes such as income tax filings, bank accounts, sim card purpose etc. In April 2017, a constitution Bench of the supreme court taking into consideration the legality of Aadhar on the ground of right to privacy. A nine-judge bench of the Supreme Court has given verdict that citizens of India enjoy a fundamental right to privacy that it is intrinsic to life and liberty and covered under Article 21 of the constitution of India.10 Regarding privacy issue the Supreme court directed concerned government authorities not to share personal information of Aadhar card holders with any private or unauthorized sources.

Analysing the judgement of Justice K.S. Puttaswamy (Retd) vs Union of India and Ors., 2017 & 2018 pertaining privacy issues:

In the year 2017, a nine-judge bench of the Supreme Court of India in Justice K.S. Puttaswamy vs Union of India11 passed a landmark judgment upholding the constitutional right to privacy. It acknowledged privacy, an essential component of the Constitution of India under Part III of it, which lays down the fundamental rights, ranging from rights concerning to equality, freedom of speech and expression, freedom of movement, protection of life and personal liberty etc. These rights which are fundamental in nature cannot be given or taken away by law, and all laws and administrative actions must stand by these fundamental rights. The Supreme Court proclaimed that the government must cautiously balance individual privacy and the legitimate concerns of the state, even if national security is at stake. The Court also declared that any incursion on privacy must satisfy the triple test, established i.e.,

1. Need12, legitimate state concern is necessary. The law should seek to achieve a legitimate aim of the state.

2. Proportionality13, in least invasive manner. There should be a balanced relationship between the objects and the means adopted to achieve them. The degree of interference must be proportional to the need and;

3. Legality14, backed by law. The existence of a Law.

The judgement of K.s Puttaswamy which has been signed by all nine judges, holds: The decision in M P Sharma15 and Kharak Singh16 both stands over-ruled and uphold that the right to privacy considered as an intrinsic part of the right to life & personal liberty under Article 21, Part III of the Constitution of India. This verdict has re-shaped the domain of fundamental rights in the constitutional history of India. It has given the government of India an opportunity to re-think its data protection mechanism, both in light of individual privacy and the welfares of the state.

While analysing the “Justice KS Puttaswamy (Retd) and Another versus Union of India and Others,2018” also called as Aadhaar judgement17, and applying the above triple test proposed in previous judgement to the Aadhar scheme, A five-judge constitution bench test the validity of Aadhaar from the aspect of privacy as a Fundamental Right held that Aadhaar would remain obligatory for filing of Income Tax returns(ITR) and applying for allotment of Permanent Account Number (PAN), and it would not be mandatory to link Aadhaar to bank accounts and the telecom service providers cannot demand for Aadhar number for the purpose of its linking for mobile connections.18

The judges of supreme court in this case also held that there is a need to introduce a data protection regime in India. The Judges conferred the right to privacy with respect to the protection of informational privacy and the right to preserve individual reputation.19 Also held that privacy is one of the most important rights to be protected both against both State and non- State actors and be recognized as a fundamental right subjected to some restrictions like national security. Also, the decision makes it clear that the Indian Government is now concerned to establish an online data protection regime for the protection of the privacy of every people which is need of the hour and also as India is lagging behind in online data privacy regime i.e., proper laws and regulations regarding collection, preservation, and compliance of personal data and related enforcement mechanisms.

The population who are being asked to link their personal documents, identity and information to their Aadhar Card have to decide between two conflicting options of Advantages to the Society in general of which they are a part, and loss of their personal privacy. It is considered as a trade-off without monetary benefits.

CONCLUSION

It is well known fact that India does not have a law on privacy till now. In fact, then chairman of UIDAI, Nandan Nilekani, penned to the Prime Minister in May 2010 recommending the need of a data protection and privacy law in India.20 Therefore, the privacy bill should be the primary action towards the issues of breach in privacy. Correspondingly, people should be educated on the risk involved with ID thefts and fraud happening in digital world. IT laws should be strengthened and the liability should be bounded on companies handling data to escape the mishap from data mishandling. Some of the recommendations which I believe is important are, First, Aadhar should focus and incorporate privacy by design itself, the technology and process towards collecting privet information should be protected parallelly. Second, there is a need of collecting minimum set of data that would be sufficient from residents, like name, age, address of resident and thumb impression. Third, Prohibiting the extensive use of Aadhar number for every authentication or Proof of document. Use of Aadhar number should be only for required purpose like linking with direct subsidy and welfare schemes from central or state government example: Gas subsidy, BPL subsidy schemes etc.

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Policy & Politics

Private sector to play prominent role leveraging technologies like 5G and satellite communication

Speaking at the conference, P. Balaji Summit Co-Chairman and Chief Regulatory & Corporate Affairs Officer, Vodafone India said that with 5G on the anvil, IoT and AI will unleash the next digital revolution helping India meet our trillion dollar digital economy goal in the coming years.Private sector to play prominent role leveraging technologies like 5G and Satellite communication to help in reaching the hinterland more effectively and efficiently said by Guest of Honour, Alok Chaturvedi, CEO, CSC Wi-Fi Choupal Service India Pvt. Ltd, MeiTY, GoI. He mentioned that today there are about 3.76 lakh CSC centres in the country covering all Gram Panchayats and important villages run by a village level entrepreneur, a change agent, who could be an individual or an organization promoting rural entrepreneurship and rural employment opportunities. He opined, government has to ensure that quality broadband internet services are availing to the residents in Gram Panchayats and Villages.

Umang Das, Summit Chairman and Chairman, Foreign Investors India Forum in his address said that Govt and the private sector to weave an unpreceded wave of digitisation that will drive Industry 4.0 and significantly improve the day-to-day lives of a billion Indians. The telecom sector is at of the cusp of transformation and Indian tech companies can attract global investors who’ve burnt their hands in Chinese tech companies added by Mr Das.

Peeyush Vaish, Partner & Telecom Leader, Deloitte India in theme introduction mentioned that Convergence amongst the telecom ecosystem with the power of technology will pave the way for bridging the urban−rural divide across sectors, including banking, healthcare and education.

CII -Deloitte paper launched, called “Digital Reset – Touching a billion Indians” aptly highlights the relevance of technological advancements like 5G technology that are poised to act as a key enabler and contributor to the success of the enterprise business and easing the lives of the common man.

In his address, Amit Marwah, Head of Marketing and Corporate Affairs, Nokia India said, 5G will be a huge leap towards a connected digital society adding value beyond connectivity to economy as well as deliver social impact. He also said that the government, regulators and the telecom industry in India need to collaborate on initiatives that will facilitate faster 5G roll-out and adoption, to accelerate socio-economic growth.

Speaking at the conference, P Balaji Summit Co-Chairman and Chief Regulatory & Corporate Affairs Officer, Vodafone India said that with 5G on the anvil, IoT and AI will unleash the next digital revolution helping India meet our trillion dollar digital economy goal in the coming years. The telecom sector and our network warriors have catalysed the economy in the last 18 months and has fast-tracked digital adoption at an unprecedented scale, both at individual and organizational level and provided a robust platform for the digital society enabling Healthcare, Education, e-Commerce, Fintech and Manufacturing to deliver services to consumers and enterprises highlighted by Mr Balaji.

Space open for Industry further would excite everyone for the future growth translate the potential of IoT into tangible benefits on the ground said by Dr Rishi M Bhatnagar, President, Aeries communications India in his address. IoT projects through solutions would meet various end uses such as improving supply chain efficiency, enhancing customer experience, tracking and monitoring assets, improving logistics and empowering smart cities through a bouquet of solutions added by Dr Bhatnagar.

Peeyush Vaish, Partner & Telecom Leader, Deloitte India in theme introduction mentioned that “ Convergence amongst the telecom ecosystem with the power of technology will pave the way for bridging the urban−rural divide across sectors, including banking, healthcare, and education. CII-Deloitte paper report launched, called “Digital Reset – Touching a billion Indians” aptly highlights the relevance of technological advancements like 5G technology that are poised to act as a key enabler and contributor to the success of the enterprise business and easing the lives of the common man.

As the industry transcends from ‘digital-first’ to ‘digital-throughout’, technology will play a critical role in creating a ubiquitous presence amongst consumers and diversify revenue streams for enterprises moving “beyond connectivity” built strategically with the strong support and commitment from the GOI towards sustainable growth of the nation”. said by Mr Vaish.

The virtual summit aimed to provide a platform for telecom players to discuss the relevance of technological advancements like 5G technology that are poised to act as a key enabler and contributor to the success of the enterprise. The conference saw speakers from Quadgen, Ericsson,COAI, Bharti Airtel and others.The summit was attended by over 175 participants

Tarun Nangia

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Private sector to play prominent role leveraging technologies like 5G and Satellite communication to help in reaching the hinterland more effectively and efficiently said by Guest of Honour, Alok Chaturvedi, CEO, CSC Wi-Fi Choupal Service India Pvt. Ltd, MeiTY, GoI. He mentioned that today there are about 3.76 lakh CSC centres in the country covering all Gram Panchayats and important villages run by a village level entrepreneur, a change agent, who could be an individual or an organization promoting rural entrepreneurship and rural employment opportunities. He opined, government has to ensure that quality broadband internet services are availing to the residents in Gram Panchayats and Villages.

Umang Das, Summit Chairman and Chairman, Foreign Investors India Forum in his address said that Govt and the private sector to weave an unpreceded wave of digitisation that will drive Industry 4.0 and significantly improve the day-to-day lives of a billion Indians. The telecom sector is at of the cusp of transformation and Indian tech companies can attract global investors who’ve burnt their hands in Chinese tech companies added by Mr Das.

Peeyush Vaish, Partner & Telecom Leader, Deloitte India in theme introduction mentioned that Convergence amongst the telecom ecosystem with the power of technology will pave the way for bridging the urban−rural divide across sectors, including banking, healthcare and education.

CII -Deloitte paper launched, called “Digital Reset – Touching a billion Indians” aptly highlights the relevance of technological advancements like 5G technology that are poised to act as a key enabler and contributor to the success of the enterprise business and easing the lives of the common man.

In his address, Amit Marwah, Head of Marketing and Corporate Affairs, Nokia India said, 5G will be a huge leap towards a connected digital society adding value beyond connectivity to economy as well as deliver social impact. He also said that the government, regulators and the telecom industry in India need to collaborate on initiatives that will facilitate faster 5G roll-out and adoption, to accelerate socio-economic growth.

Speaking at the conference, P Balaji Summit Co-Chairman and Chief Regulatory & Corporate Affairs Officer, Vodafone India said that with 5G on the anvil, IoT and AI will unleash the next digital revolution helping India meet our trillion dollar digital economy goal in the coming years. The telecom sector and our network warriors have catalysed the economy in the last 18 months and has fast-tracked digital adoption at an unprecedented scale, both at individual and organizational level and provided a robust platform for the digital society enabling Healthcare, Education, e-Commerce, Fintech and Manufacturing to deliver services to consumers and enterprises highlighted by Mr Balaji.

Space open for Industry further would excite everyone for the future growth translate the potential of IoT into tangible benefits on the ground said by Dr Rishi M Bhatnagar, President, Aeries communications India in his address. IoT projects through solutions would meet various end uses such as improving supply chain efficiency, enhancing customer experience, tracking and monitoring assets, improving logistics and empowering smart cities through a bouquet of solutions added by Dr Bhatnagar.

Peeyush Vaish, Partner & Telecom Leader, Deloitte India in theme introduction mentioned that “ Convergence amongst the telecom ecosystem with the power of technology will pave the way for bridging the urban−rural divide across sectors, including banking, healthcare, and education. CII-Deloitte paper report launched, called “Digital Reset – Touching a billion Indians” aptly highlights the relevance of technological advancements like 5G technology that are poised to act as a key enabler and contributor to the success of the enterprise business and easing the lives of the common man.

As the industry transcends from ‘digital-first’ to ‘digital-throughout’, technology will play a critical role in creating a ubiquitous presence amongst consumers and diversify revenue streams for enterprises moving “beyond connectivity” built strategically with the strong support and commitment from the GOI towards sustainable growth of the nation”. said by Mr Vaish.

The virtual summit aimed to provide a platform for telecom players to discuss the relevance of technological advancements like 5G technology that are poised to act as a key enabler and contributor to the success of the enterprise. The conference saw speakers from Quadgen, Ericsson,COAI, Bharti Airtel and others.The summit was attended by over 175 participants

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Policy & Politics

Key legal challenges associated with artificial intelligence in India

Naina Pachnanda

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INTRODUCTION

Artificial Intelligence (hereinafter referred to as “AI”) and related technologies are crucial to the business ecosystem and are permeating into every sector. As AI gains more control over common subjects and services, it is bound to become potentially unpredictable and cause harm. While research on AI is being conducted all over the world, there are certain potential legal questions raised when it comes to the usage of AI. These range from criminal liability to data privacy concerns. This article addresses some of the key legal issues that crop up with respect to AI, across different sectors, as with an exciting new generation of AI solutions being developed it is essential that the same is regulated by a legal framework which allows AI to make the best possible impact in the economy.

In the event that there exists no legal definition for Artificial Intelligence, for the purpose of this article, Artificial Intelligence is defined as “a constellation of technologies that enable machines to act with higher levels of intelligence and emulate the human capabilities of sense, comprehend and act.”

Before one aims to pin point issues that arise with respect to an AI technology and attribute any liability to an AI technology, it is essential to determine the nature of the AI’s existence. This becomes important as the attribution of any liability would be based on the status granted to the AI in the country. To ensure their accountability under the law, AI entities could be treated as legal personalities, like corporations. Corporate liability of an individual was limited to motivate people to engage in commercial activities through corporations. The same principle could be extended to AI entities. This enables a number of advantages to the existing legal system to tackle upcoming challenges by AI without the need to make drastic changes in the legal system, to effectively solve AI related problems as AI developers are largely concerned about the liability arising from its actions.

KEY LEGAL

CHALLENGES

As mentioned above, assuming that an AI technology is given the status of legal personhood, in India, principles of tort law may be applied, in case of default by the AI technology. When an AI software is defective or use of such software injures the party using the software, it results in legal proceedings under the tort principle of negligence. In the case of AI, the software developer/programmer owes a duty of care to the customer/user. It is of course difficult to decide on the standard of care to be owed to the customer/user. The kind of software being implemented might assist in deciding the standard of duty of care that may be attributed to the software developer/programmer. For instance, if the system involved amounts to an “expert system” the befitting standard of care that would be that of an expert or a professional. Similarly, we could reason that if a person can be held liable for the wrongdoing of a human helper, the recipient of such support could be equally liable if they outsource their duties to a non-human helper instead, considering that such delegation is equally advantageous to them. The policy contention is quite compelling that using the assistance of a self-learning and autonomous machine should not be treated any differently from employing a human auxiliary, if such assistance leads to the harm of a third party . However, to hold the principal liable for the wrongdoing of another, it may be challenging to determine the standard against which the operations of non-human helpers will be assessed in order to emulate the degree of misconduct, as in human auxiliaries. The potential standard should take into consideration, that in many areas of application non-human auxiliaries are more safe and less likely to cause damage to others than human beings, and the law should at least not dissuade their relevance.

Again, assuming that an AI technology is granted the status of a legal person, the AI technology can be held liable under the criminal law system. For criminal liability to be established both the elements of mens rea( mental element) and actus reus (physical act) are essential to be present. The pertinent question that arises here is that how does an AI technology fulfil these two essential aspects of criminal liability? And how is an AI technology liable directly for the commission of an offence?

Assuming an AI is an innocent agent , the obvious question that arises is that who shall be held liable for the crime committed? Here there are two candidates at play, i.e. the programmer of the Al software and the user of the AI software. A programmer of an Al software might design a program in order to commit offences through the Al entity. Both the programmer or the user do not perform any physical act in the commission of the crime and therefore, they do not meet the actus reus requirement of the offence. The legal result of this is that the programmer and the user should be criminally liable, as the principle of mens rea or malafide intention is attributed to them for the specific offence committed, while the Al entity has no criminal liability whatsoever.

In another scenario, assuming there is excess involvement of the programmers or the users in the day to day activities of the Al entity, but without any intention of committing an offence by way of the Al entity, negligence or recklessness should be considered as the standard of mens rea.

Yet another viewpoint suggests that an Al algorithm might have many characteristics and qualifications that exceed those of an average human being, but all such qualities are not essential in order to impose criminal liability. As far as a human or a corporation is concerned, if they are able to fulfil both the essentials of the mental and physical elements, only then can criminal liability be imposed. Similarly, if an AI technology is capable of fulfilling both the essentials of mens rea and actus reus, then criminal liability can be imposed on the AI as well. So long as an AI technology, controls a mechanical or other mechanism to move its moving parts, any act by the AI technology here may be considered as performed by the Al technology itself, thereby fulfilling the requirement of the physical component, i.e. actus reus. As far as the mental element or mens rea is concerned, the only essential requirements that need to be fulfilled under the general ambit of criminal law are knowledge, intent, negligence, etc. Knowledge is defined as sensory reception of factual data and the understanding of that data. Most Al technologies are well- prepared for such kind of reception. The process of analysis in Al systems parallels that of human understanding. The cognitive ability of the human brain understands the data received by senses such as eyes, ears, hands, etc., by analyzing that data. Similarly, advanced AI algorithms are trying to emulate human cognitive patterns. Therefore, if a human being can be held criminally liable for an offence by fulfilling the two criteria of intention and physical act, why should an AI be exempt from the same?

Another potential legal issue that crops up is that of the AI being defective in nature. This attracts product liability. As per the concept of product liability in case of any defect in the product, the manufacturer or the seller of the product is to be held liable for any defect in the product. However, as far as equating an AI technology to a product is concerned, the question that often pops up is that is it fair to hold the creator liable for any injury or harm caused by the AI, as this would inevitably draw an analogy with the principle of strict liability. It is essential that all AI technologies should have limits placed on their ability to cause harm, and it could be argued that there is no better person than the creator to be able to prevent any such harm caused by the AI as well as compensate for any financial losses resulting from such harm.

With an increasing shift in business towards the digital set up, and an increase in the demand of software products, another area of concern, is that of Intellectual Property Rights, particularly the Patent law. As far as protection of AI innovation is concerned, the Patent Act,1970 currently provides protection only to the true and first inventor, which implies a legal person , which includes either a natural person or an artificial person, i.e. a corporation. Section 3(k) of Patent Act 1970 clearly states that “mathematical or business method or computer programme per se or algorithms are excluded from patentability. However, in the recent order by a quasi-judicial body, in the case of Ferid Allani v Union of India has stated that computer inventions that meet the criteria of a ‘technical effect’ , are patentable under the law. This order opens the doors for an enormous corpus of innovation to now become protectable and more valuable as patent protection for innovations in India is essential to foster innovation.

Any discussion on AI is incomplete without addressing the issue of data protection. The functioning of AI is based on the dataset that is used to train the AI’s actions. Therefore, it is essential that such data should be utilized in a safe manner. Since there is a wide range of data collected at an individual’s end, to be utilized, the problem lies with respect to the safe usage of such data. In the event that the Personal Data Protection Bill, 2019 ( hereinafter referred to as “PDP Bill”), is pending before Parliament, the Information Technology Act, 2000 alongside the Information Technology(Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 provide a framework, for protection of sensitive personal information, as far as body corporates are concerned. This apart, the Ministry of Electronics and Information Technology ( hereinafter referred to as “MeitY”) has acknowledged the imbalance with a few companies dominating the market and has recommended that there should be mandatory data sharing mandatory to open up competition in any concerned sector enabling startups, or for other community/ public interest purposes. This is to ensure startups and small medium enterprises are given equal opportunity as compared to big corporate giants and there is no monopoly by corporate giants.

CONCLUSION

Given that AI is a growing industry and India has a tremendous corpus of AI innovators, with the development of an imaginative legal framework to govern the same, AI innovation can be safely unlocked and fostered, in a fashion that is safe and yet dynamic.

DISCLAIMER

The views expressed in this article are that of the author alone and do not reflect the views by any organization.

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Policy & Politics

INDIA-ASEAN TRADE COULD REACH US$200 BN: PIYUSH GOYAL

Tarun Nangia

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Piyush Goyal

Addressing trade barriers could take India-ASEAN trade to USD 200 billion, stated Piyush Goyal, Minister of Commerce & Industry, Consumer Affairs & Food & Public Distribution and Textiles, Government of India, while addressing the Indo – ASEAN Business Summit & Expo organised by Confederation of Indian Industry (CII) in partnership with the Ministry of External Affairs on 7 – 8 October, 2021.

The Minister stated that India considers ASEAN a valued partner and has contributed to the ASEAN COVID-19 Response Fund. He highlighted that during the pandemic India had not only met international service commitments, but had also shown to the world its capabilities of self-sufficiency by producing critical medicines, medical equipment, and vaccines, for domestic and export purposes, which has earned India the reputation of being the ‘pharmacy of the world.’

Today, 70 percent of the world’s vaccines are manufactured in India and the country’s prowess in producing affordable, standardised medicines make India a strong partner in mitigating the global health risks that are a top priority of Governments, affirmed Shri Goyal. India’s business friendly policies under the ambit of the Aatmanirbhar Bharat vision with Production Linked Incentive schemes amounting to USD 30 bn constituting APIs, drugs and medical devices open up a plethora of investment and partnership opportunities, he opined.

The India-ASEAN bilateral trade has grown significantly and stands at USD 80 bn and we should look at taking this to USD 200 bn. This is possible with strong collaborations between the countries and addressing the impediments on the way, said Shri Goyal. Misuse of the trade agreement including by third parties should be discouraged and this could instil more confidence in both sides to reduce tariffs for inter-ASEAN and Indian trade, he added.

Ministers from 7 ASEAN countries addressed the session.

Utilisation of digital and technology, especially in the 4th industrial revolution era can further strengthen the supply chain. One of the areas that we must work on is to build a vibrant and resilient supply chains through deeper trade and investment in the region, said H E Dr Khampheng Saysompheng, Hon’ble Minister of Industry and Commerce, Lao PDR. There must be a reduction in trade barriers such as non-tariff and technical trade barriers to ensure constant flow of goods and skilled man force across countries, he added.

Cambodia is highly committed to cooperating with India and ASEAN to seize the opportunity to make an environment for sustainable development, said H E Mr Chhuon Dara, Secretary of State, Ministry of Commerce, Royal Government of Cambodia. Enhancing trade efficiency through improving competitiveness by further strengthening the current trade facilitation mechanism is beneficial for trade within the region to be fast-flowing and efficient, he added.

India remains one of ASEAN’S largest trading partners, said H E Yang Berhormat Dato Seri Setia Dr Awang Haji Mohd Amin Liew bin Abdullah, Minister of Finance and Economy, Brunei Darussalam.

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Bilaterally, Brunei Darussalam has a steady trade economic relationship with India. In 2020, India is our 6th largest trading partner with a total trade value of over 583 million USD, he stated.

FTAs and enhanced economic cooperation are important, said Ramon Lopez, Secretary, Department of Trade & Industry, Philippines. Philippines looks forward to a more strategic, and wider economic partnership with India and ASEAN. ASEAN & India can work with other trading partners to seize the opportunity, he stated.

We should enhance economic cooperation through capacity building and technical assistance programmes, workshops, and seminars as well as outreach activities. Making strategic decisions will support the implementation and utilisation of ASEAN India treaty area, said H E Dr Pwint Sann, Union Minister, Ministry of Commerce, Myanmar.

It is important that ASEAN & India join hands in recovering from the adverse impact of the pandemic on the economy of the region, said H E Dr Jerry Sambuaga, Vice Minister of Trade, Indonesia. We need to keep our markets open, especially for medical & healthcare products and other essential goods, encourage trade facilitation, digital economy, produce assistance to our MSMEs, he added.

With the combined population of 2 billion people and the combined GDP of USD 5.6 trillion, ASEAN and India should work closely together to ensure open trade development and enhance entrepreneurial competitiveness, said H E Dr Sansern Samalapa, Vice Minister for Commerce, Thailand. Both sides should seek to transform farmers into smart farmers by making digital technology an integral part of their farming operations, he added.

Both India and ASEAN are home to rapidly growing markets and have a number of emerging opportunities in common sectors of interest including manufacturing, human development, logistics and transport, retail and human development, among others. Both sides together can contribute to building and diversifying supply chains, noted Mr T V Narendran, President, CII and CEO & Managing Director, Tata Steel Limited.

Business cooperation between India and ASEAN in areas of mutual interest such as FinTech, start-ups, and innovation, empowerment of youth and women and the development of MSMEs are important factors to take this multilateral connection to a higher growth trajectory, said Chandrajit Banerjee, Director General, CII.

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Policy & Politics

Sr. Adv. Vivek Tankha (MP) requests Australian High Commissioner for Diwali as optional holiday, reduction of fees for Indian students

Tarun Nangia

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Sr. Adv. Vivek Tankha (MP), met Barrt O Farrell, the Australian High Commissioner to India on October 14th at Tankha’s residence. He requested Farell that it would be a great gesture if Government of Australia could kindly consider the Diwali day, November 4th, 2021 as an “optional holiday” in Australia for the people of Indian origin and similarly placed persons since it is a day of rejoicing and festivity. Also, he requested for working towards getting direct flight services operational for New Delhi to Sydney or Melbourne. Tanka also highlighted that the fee charged from Indian students in Australia is much more than what is charged from local residents, and requested it to be reduced.

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