THE LEGAL GAPS IN INDIA’S UNREGULATED AI SURVEILLANCE

THE CONTEXT: India’s ambitious foray into AI-powered surveillance marks a significant shift in its approach to law enforcement and governance. In 2019, the government announced its intention to create the world’s largest facial recognition system for policing, setting the stage for a technological revolution in public security. However, this rapid adoption of AI in surveillance raises critical questions about the balance between technological advancement and civil liberties.

KEY DEVELOPMENTS SINCE 2019:

• • Deployment of AI-powered surveillance systems across railway stations
  • Delhi Police’s integration of AI for crime patrols
  • Plans to launch 50 AI-powered satellites to enhance surveillance infrastructure

LEGAL AND CONSTITUTIONAL FRAMEWORK:

• • Right to Privacy under Article 21: The right to privacy, though not explicitly mentioned in the Indian Constitution, has been interpreted as an intrinsic part of Article 21, which guarantees the right to life and personal liberty. This interpretation has been developed through a series of landmark judgments:
    • K. Gopalan v. The State (1950): The Supreme Court initially rejected the argument that the right to privacy was protected under Article 19(1).
    • Kharak Singh v. The State of UP: While the court agreed that nightly domiciliary visits violated the right to live a dignified life, it maintained that privacy was not a fundamental right.
    • P. Sharma v. Satish Chandra (1954): The court held that the drafters of the Constitution did not intend to subject the power of search and seizure to a fundamental right of privacy.
  • S. Puttaswamy vs Union of India (2017) judgment: The Puttaswamy judgment marked a watershed moment in Indian constitutional history. Key aspects of this landmark verdict include:
    • Unanimous decision: A nine-judge bench unanimously held that the right to privacy is protected as a fundamental right under Articles 14, 19, and 21 of the Constitution.
    • Overruling previous judgments: The verdict explicitly overruled previous judgments in Kharak Singh and M.P. Sharma cases, which had held that there was no fundamental right to privacy.
    • Three-pronged test: The court adopted a three-pronged test for any encroachment of Article 21 rights: legality, necessity, and proportionality.
    • Digital spaces: The judgment extended individual liberty to digital spaces, emphasizing the need to protect privacy in the modern context.
    • Compelling state interest: The court clarified that the right to privacy could only be infringed upon when there was a compelling state interest, aligning it with other fundamental rights.
    • Digital Personal Data Protection Act (DPDPA), 2023: The DPDPA, 2023, represents India’s first comprehensive legal framework for personal data protection. Key provisions include:
    • Scope: The Act regulates digital personal data processing and has extraterritorial applications for entities offering goods or services in India.
    • Data Fiduciaries: Entities responsible for collecting, storing, and processing digital personal data have defined obligations, including maintaining security safeguards and ensuring data accuracy.
    • Data Protection Board of India (DPB): Established to handle complaints and grievances and impose penalties for non-compliance.
    • Children’s data: The Act prohibits tracking, behavioral monitoring, and targeted advertising directed at children under 18.
    • Significant Data Fiduciaries (SDFs): Additional obligations for entities designated as SDFs based on criteria such as volume and sensitivity of data processed.
    • Penalties: Non-compliance can result in penalties up to INR 250 crore, with specific fines for various violations.
    • Exclusions: The Act does not cover non-automated personal data, offline personal data, or personal data that has existed for at least 100 years.

CONCERNS AND CHALLENGES:

• • “Dragnet Surveillance:” It Refers to indiscriminate data collection that extends beyond suspects or criminals, potentially infringing on citizens’ privacy rights. Treating all citizens as potential suspects contradicts the principle of “innocent until proven guilty.”
  • Lack of Proportional Safeguards: India lacks specific laws governing AI and surveillance technologies. The deployment of AI surveillance systems often contravenes the principles established in the K.S. Puttaswamy v. Union of India (2017) judgment, which recognized privacy as a fundamental right.
  • Digital Personal Data Protection Act (DPDPA): The Act allows the government to exempt itself from provisions under the guise of national security and public order. It provides limited requirements for companies to inform users about data usage, potentially leading to less informed consent. The Act emphasizes the mechanics of data processing rather than safeguarding individual privacy rights.
  • Absence of Comprehensive AI Regulation: The Ministry of Electronics and Information Technology (MeitY) issued an advisory in March 2024 mandating compliance for certain AI models, but this was quickly withdrawn due to industry pushback. The absence of AI-specific regulations leaves citizens vulnerable to potential misuse of AI technologies, particularly in surveillance.
  • Digital India Act: The Digital India Act remains in drafting, with public consultations was expected by July 2024. The delay in its implementation leaves a significant regulatory void in the rapidly evolving AI landscape.

THE WAY FORWARD:

• • Enact a Comprehensive AI Regulation Framework: Develop an “Artificial Intelligence Act” similar to the EU’s approach, categorizing AI systems based on risk levels. Establish clear guidelines for AI development, deployment, and use in critical sectors like law enforcement, healthcare, and finance. Implement mandatory AI impact assessments for government agencies and private entities deploying AI systems in public spaces.
  • Strengthen Data Protection Measures: Amend the Digital Personal Data Protection Act (DPDPA) 2023 to narrow government exemptions and strengthen user rights. Implement strict data localization requirements for sensitive personal data processed by AI systems. Mandate regular third-party audits of AI systems handling personal data.
  • Enhance Transparency and Accountability: Implement a “right to explanation” for decisions made by AI systems affecting individuals. Establish parliamentary oversight committees to review the use of AI in governance and law enforcement. Require regular transparency reports from law enforcement agencies on AI-powered surveillance activities.
  • Develop Sector-Specific AI Guidelines: Create tailored regulations for AI use in healthcare, finance, education, and law enforcement. Implement certification processes for AI systems used in critical sectors. Establish sector-specific AI ethics committees to address unique challenges in each field.
  • Invest in AI Education and Awareness: Provide training programs for judges, lawyers, and policymakers on AI technologies and their legal implications. Establish AI research centers with academic institutions to foster indigenous AI development.
  • Foster International Cooperation: Actively participate in global AI governance initiatives, such as the Global Partnership on Artificial Intelligence (GPAI). Align domestic AI regulations with international best practices while adapting to India’s unique context—lead initiatives for AI governance in the Global South, addressing unique challenges developing nations face.

THE CONCLUSION:

India stands at a critical juncture where the integration of AI-powered surveillance must be carefully balanced with the protection of civil liberties. This requires a robust legal framework that upholds constitutional rights while fostering technological innovation.

UPSC PAST YEAR QUESTION:

Q. Artificial Intelligence’s application as a dependable input source for administrative rational decision-making is a debatable issue. Critically examine the statement from the ethical point of view. 2024

MAINS PRACTICE QUESTION:

Q.  India’s rapid adoption of AI-powered surveillance technologies presents opportunities and challenges for governance and civil liberties. Critically examine

SOURCE:

https://www.thehindu.com/opinion/lead/the-legal-gaps-in-indias-unregulated-ai-surveillance/article68996389.ece