(Vardaan Vardhan is a third-year year law student at USLLS, GGSIPU, Dwarka.)
Featured Artwork: An image generated using Adobe Firefly with the prompt, “a painting in the style of Bruegel of 15th-century people gathering around a computer in a town square.”
ABSTRACT
Artificial intelligence has been deemed the defining development of the 21st century by thinkers, scientists, and technologists alike. It is often touted as both a dangerous and revolutionary technology. Revolutionizing, because it holds the potential to not only analyze data and patterns but also do predictive analytics on an enormous scale to make things efficient, quicker, and faster. Dangerous, because of the same reasons, as this god-like ability to process loads of information poses a direct threat to humans and their occupations, as they cannot do the same and are on the verge of getting replaced. Technologies provided by AI companies have also been deemed dangerous and harmful to the job market by innumerable academics, scientists, and industrialists, and their warnings have been proven right in several real-world instances. As I will illustrate further, AI is now developing to the degree where it can cause mass automation in society. I make the case that AI crosses the threshold of reasonableness as set out in Article 19 (6) and its interpretation by the Supreme Court, and the same makes for an appropriate grounding to regulate AI. In light of the same, I discuss the feasibility of a PIL, which spurs the state to regulate automation, and also discuss how the state can effectively regulate the same.
Key Words: Automation, Fundamental Rights, AI, Supreme Court, Article 19
AUTOMATION AND IT’S DELETERIOUS EFFECTS
Elon Musk, a pioneer in the field of information technology in the 21st century, has repeatedly sounded the alarm about mass job displacement. In an interview in 2018, he said, “As AI gets probably much smarter than humans, the relative intelligence ratio is probably similar to that between a person and a cat, maybe bigger.”. Since the interview was conducted in 2018, Chat GPT has arrived in 2021 and has shaken the world. It is essentially a language generation model that uses a vast database of information to formulate answers and generate texts to solve problems and prompts posed to it. Its Google counterpart, Bard, is even more advanced and uses the entire repository of the internet. It is far faster and more advanced than any of its human counterparts currently. Several white-collar professions, such as journalism, copywriting, and various aspects of law practice, may as well be automated and replaced. Many known organizations, such as Buzzfeed, have already started laying off their workers because of the availability of ChatGPT’s automation. 50 percent of jobs are predicted to be automated by the middle of the century, and that includes several white-collar professions. Historically, such magnitudes of job displacement have always triggered societal protests, eruptions, and upheavals. In recent history in India, one has witnessed indications of potential unrest against technological replacement in the form of protests against IT companies like Ola and Uber that allow for portable cab booking services through mobile phones as opposed to traditional taxi drivers that rely on face-to-face customer pick-up. The ongoing development of driverless automobiles that use AI to do away with human drivers is also gaining traction among companies, and it is almost certain that it will induce even more protests, which might even be flagrant. This claim is buttressed by aggressive protests that have happened in the recent past against automation in other sectors around the world.
Hollywood, which is arguably one of the biggest industries on the planet, and is the entertainment capital of the world, is facing the replacement of highly skilled and creative labor, though it was thought to be the safest from AI. It is currently facing full-fledged protests against automation, and a lot of its white-collar brass is on the verge of being fully replaced. Creative works in the arts are the most anthropomorphic of human activities, and they’re the first on the firing line of automation. This is indicative of the fact that the ongoing development of more advanced AI is going to bring about even more destruction in the job market, and naturally, the low end of the class distribution will also face automation.
RELEVANCE OF ARTICLE 19(1)(G) AND ARTICLE 19 (6)
Regulating AI automation, to the extent that it doesn’t cause mass job displacement, is, therefore, an urgent requirement, and there is no legislation or law in place in India yet. Our constitution makers were aware of specific trades and businesses that could pose harm to society and therefore conceived of Article 19(6) of the Constitution. This article gives the state the power to regulate the freedom to practice, trade, occupation, or business in the interest of the general public. Artificial intelligence companies and services like ChatGPT, Bard, and Ernie naturally fit the description of trade, occupation, and business and come under the purview of both Article 19(1) (g) and Article 19(6).
In the case of Excel Wear v. Union of India (1978), the Supreme Court, in its ruling on the constitutionality of Section 25-O of the Industrial Disputes Act, 1947, stated that engaging in hazardous, antisocial, or criminal activities is not a protected right under Article 19(1)(g), i.e., AI fits the description of hazardous and antisocial as it leads to mass job displacement, which, as evidenced earlier, cascades into societal eruptions and violent protests. In addition to causing impairment to the economy and society at large.
This particular case emerged from a legal challenge against Section 25-O of the Industrial Disputes Act, 1947, which mandated employers to seek government approval before shutting down their enterprises. The Supreme Court determined that Section 25-O was unconstitutional because it imposed an unjustifiable limitation on the ability to cease business operations.
The Court’s rationale was that the freedom to cease a business constitutes an integral aspect of the broader right to engage in any business activity. However, it emphasized that this right isn’t absolute. It is in this context that the court acknowledged that the government possesses the authority to regulate business closures to safeguard public interests, including the welfare of workers and consumers, and regulate the closure of business if it is engaging in hazardous, antisocial, or criminal activities. The court did this by differentiating between the right “not to start a business” and the right to “close a business.”. The court stated that there can be no interference by the state in the prerogative of not starting a business, but the closure of a business warrants regulatory control by the state. However, the Court ruled that any government regulations concerning business closure must be reasonable and not excessively encroach upon the right to terminate a business.
REGULATING AI IS REASONABLE UNDER ARTICLE 19 (6)
There is no set standard as to what constitutes “reasonable” under Article 19(6), as there are virtually limitless kinds of businesses and limitless activities that they can engage in; therefore, it’s impossible for a set of activities to be declared unreasonable for the purposes of Article 19(6). So, what is and isn’t reasonable is left to judicial determination. However, regulation in the “interest of the general public” is a basic principle and axiom laid out under Article 19(6), and it by itself, along with its interpretation by the Supreme Court, is sufficient for gauging the same. Various legislations and judicial pronouncements that will be dealt with further, have grounded themselves in this principle. The judgment of Kerala Swathanthra Malaya vs Kerala Trawlnet Boat Operators (1994) is a very germane judgment for ascertaining the reasonableness of restrictions imposed on businesses in the interest of the “general public”. This judgment, as I will further prove, also establishes that regulating AI automation is indeed “reasonable” as set under Article 19 (6).
In the Kerala Swathanthra Malaya vs. Kerala Trawlnet Boat Operators (1994) case, the Supreme Court of India upheld the prohibition of trawling fishing in Kerala’s territorial waters during the monsoon season. The case was initiated by a collective of traditional fishermen who contested the ban, asserting that it infringed upon their right to earn a livelihood as stipulated under fundamental rights of the Constitution, as the technology of trawling replaced the need for them.
In its verdict, the Supreme Court concluded that the ban on trawling fishing constituted a reasonable limitation provided under Article 19(6) on the Freedom to practice any profession, trade, or business under Article 19(1)(g). The Court observed that trawling fishing represented a highly destructive fishing technique capable of inflicting severe harm upon the marine environment. Additionally, it recognized the adverse impact of trawling fishing on the traditional fishermen’s means of living, as they relied on the same fishing grounds.
The situation of the case is completely analogous to the situation of job displacement posed by AI automation. AI automation similarly poses a threat to the livelihood of the public as trawling did to the livelihood of traditional fishermen. Also, while trawling endangered the environmental ecosystem, AI threatens the state of the economy. In the case, the Court, while holding restrictions on trawling to be reasonable under Article 19(6) weighed the concerns of trawling companies against the livelihood of traditional fishermen and the public. Similarly, the AI automation situation necessitates the need to strike a balance between the interests of AI companies and the well-being of the public affected by AI.
Both situations share a common objective of ensuring public protection. In the Kerala case, the court, while regulating trawling under 19(6) took into account the detrimental impact on the marine ecosystem and the traditional fishermen’s livelihoods. Likewise, with the regulation of AI automation, the reason for establishing regulatory frameworks is to shield the public’s livelihood and the economy from impairment at large.
Therefore, the Supreme Court of India’s ban on trawling in the case affirms and establishes, that the standard of reasonableness set under Article 19(6) of the Constitution of India is not breached when AI automation is regulated.
IS A PIL FEASIBLE?
The legitimacy of a PIL for regulating automation is self-explanatory. Its legitimacy emanates from the name PIL itself which stands for Public Interest Litigation. There are several case laws where the Supreme Court has highlighted the importance of public interest and interpreted it in a manner that dovetails with the proposition of regulating automation and preventing job displacement from AI.
In the landmark case of State of Gujarat v. Mirzapur Moti Kureshi Kasab Jamat (2005), while interpreting the phrase “in the interest of the general public” under Article 19(6), the Supreme Court ruled that the same has a broad meaning, encompassing public order, public health, public security, morals, economic welfare, and the objectives listed in Part IV of the Constitution. Public order, health, security, morals, and economic welfare are all severely affected by AI automation as previously shown. It can cause mass automation and job displacement which usually degenerates into economic decimation and thereby societal eruption, the early stages of which are already in effect.
Securing public interest from automation is also given a green light in the case of Dr. Y.P. Singh and Ors., Etc. vs State of U.P. And Ors and has a constitutional sanction. The Supreme Court in the same ruled that Article 19(6) can be used to regulate private rights in the public interest. The fundamental rights under Article 19(1)(g) are not absolute and can be restricted if necessary for the general public. Article 19 strikes a balance between individual liberty and social control. The phrase “nothing in Sub-clause (g) of the said clause shall affect” means that the government can make laws that restrict the right to practice any profession or carry on any occupation, trade, or business if it is in the interests of the general public. The broader economic health of the populace and job security of the country from existential risk fit the description of public interest. Thus, this judgment clears any constitutional or legal impediments that may arise or be posed against regulating automation.
There are umpteen precedents where the Supreme Court has issued policy directives to the governments through PIL in issues concerning social security, environmental protection, primary education, and women’s safety. The issue of job security of the populace is no different and based on previous precedents, a PIL for regulating and preventing mass automation would be feasible.
REGULATORY DESIGN
Many economists and intellectuals propose a Universal Basic Income to counter income loss from automation. However the same is untenable in India due to fiscal limitations. According to analysts, the country will have a tough time applying UBI to bring out people from below the poverty line levels. Naturally, providing full-fledged income through UBI is a far-fetched dream. Upskilling in technology is posed as another potential solution, but the same is also improbable as a large chunk of the country doesn’t even have basic primary education. “Learning to code” is also futile and impractical when specialist entry-level engineers themselves face extinction from publicly available technology.
Regulations are the only way forward to confront the upcoming apocalypse. My emphasis on a PIL for the same is strong because, for reasons unknown, there is no AI legislation or policy in the world, either proposed or implemented that has dealt with job security yet, therefore a state prerogative for the same in opportune time in India is highly unlikely.
The regulations for automation should be designed in a way, that balances the rights of both the citizenry and the AI companies, as AI companies also have rights granted to them under Article 19(1) (g) for doing business and trade. To that end, it would be palatable to have a special division for automation consisting of economists, social scientists, and technologists in the proposed and talked about regulatory board for Artificial Intelligence. The purpose of this division will be to oversee the impact on the labor market and to control the distribution, manufacturing, and use of automation-inducing A.I. technologies in the economy through regulation and enforcement agencies. Needless to say, the underlying principle of regulation will be to bring about a healthy balance between human workers and AI in the economy. This would prevent disruption in the job market and impairment to the public and citizenry at large.
CONCLUSION
To mitigate the risks mentioned in the article, India needs to establish regulatory measures for AI that prevent automation and job loss. Article 19(6) and its interpretation by the Honourable Supreme Court acknowledge that such restrictions are necessary. Therefore, a PIL on creating automation regulations that balance the rights of AI companies and the public is appropriate and needed.
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