AI in Council of Europe: Can India bring similar legislation to meet obsolete laws?

Artificial Intelligence (AI) is revolutionizing industries worldwide, and governing its ethical, transparent, and accountable use has become a key priority for international legislative bodies. The Council of Europe (CoE), a leading authority in human rights law and governance, has spearheaded the development of a comprehensive AI regulatory framework that aligns AI deployment with fundamental human rights, ethics, and the rule of law. In contrast, India, with its rapidly expanding AI ecosystem, faces a legislative gap. While AI adoption grows in sectors like healthcare, defence, and agriculture, India’s legal framework remains inadequate in addressing the ethical, social, and economic challenges AI presents. This report examines the CoE’s AI legislative framework and explores the feasibility and implications of India adopting similar regulations to modernize its outdated laws.

The Council of Europe’s AI Framework: A Human-Centric Governance Model

1. Human Rights-Focused Approach

• Overview: The CoE’s AI framework is anchored in its commitment to protecting human rights, particularly privacy, non-discrimination, and fairness in AI applications. It emphasizes that AI must be compatible with the European Convention on Human Rights (ECHR) and adhere to the principles of dignity, equality, and privacy. The framework aims to prevent AI from perpetuating biases or violating personal freedoms.

• Specific Measures: The CoE’s Convention 108+ on data protection, the Ad Hoc Committee on Artificial Intelligence (CAHAI), and various ethical guidelines form the backbone of its AI governance model. CAHAI is actively working on a binding legal instrument to regulate AI in Europe.

• Relevance to India: India, as a democratic nation with a commitment to human rights, could benefit from integrating such principles into its AI governance. India’s legal framework, however, currently prioritizes AI's economic and strategic potential over human rights, which could lead to future governance and ethical challenges.

2. Transparency, Accountability, and Explainability

• Key Aspects: The CoE prioritizes transparency and accountability in AI systems, ensuring that decisions made by AI algorithms are understandable and traceable. This is especially crucial in applications involving law enforcement, healthcare, and financial services, where AI outcomes have significant societal impact.

• CoE Initiatives: Recommendations call for explainable AI (XAI) where decisions must be understandable to affected individuals, ensuring that AI does not operate as a "black box." The CoE also stresses holding developers, users, and institutions accountable for harms caused by AI-driven systems.

• Indian Context: In India, AI is increasingly used in public services like welfare schemes, Aadhaar-linked identification, and surveillance systems. However, there is limited transparency in how these algorithms operate, leading to concerns over biases and lack of accountability, particularly in law enforcement and governance. AI in India’s public sector is often perceived as opaque, which can undermine trust in the technology.

3. Ethical AI Development and Deployment

• CoE's Ethical Framework: The CoE promotes ethical AI development by encouraging responsible innovation that respects fundamental human values. The ethical deployment of AI should be free from biases and should ensure fairness in decision-making processes. The Council’s initiatives stress that AI should enhance public good rather than exacerbate existing inequalities.

• Challenges in India: India's rapid AI adoption, particularly in areas like facial recognition, predictive policing, and healthcare, raises ethical concerns. The absence of standardized ethical frameworks governing AI use, particularly in public surveillance and policing, risks perpetuating systemic biases, including gender, caste, and religious discrimination. Addressing these gaps in the Indian context requires more than just a rights-based approach; it requires a cultural and societal shift in understanding AI's potential impacts.

  
  

India’s Current Legislative Landscape on AI:

India has emerged as a significant player in the global AI landscape, with AI-driven solutions used extensively across sectors like finance, healthcare, education, and agriculture. However, the country’s legislative framework remains outdated, offering minimal guidance on the ethical and accountable use of AI technologies.

1. Obsolete Legal Framework

• Current Status: India’s regulatory framework for AI primarily relies on the Information Technology Act, 2000, which governs cyber activities but fails to address the nuanced challenges presented by AI, including algorithmic accountability, ethical standards, and data biases.

• Need for Reform: The IT Act was drafted in an era when AI and machine learning were in their infancy, making it ill-equipped to address the current ethical, social, and economic challenges posed by AI systems. For instance, the Act lacks provisions on AI autonomy, ethical deployment, liability issues, or how AI can respect or violate human rights.

• Key Areas for Modernization: Legal experts in India have highlighted the need to modernize existing laws to focus on algorithmic bias, liability in autonomous systems, and clear regulations around AI explainability and transparency.

2. Data Protection Laws and AI Governance

• Digital Personal Data Protection Bill, 2023: India’s data protection bill provides a foundation for AI-related governance but is limited in scope when addressing AI-specific challenges. It focuses primarily on how personal data is collected, processed, and stored, with limited attention to how AI systems utilize such data.

• AI and Data Intersection: As AI increasingly depends on large datasets, ensuring ethical data use is critical. In India, where biometric data from the Aadhaar system is widely used, the absence of robust AI-specific data protection laws creates vulnerabilities, especially regarding consent, data misuse, and privacy violations.

• Need for AI-Specific Data Governance: The Digital Personal Data Protection Bill could be expanded to include explicit guidelines on AI’s access to and use of data, ensuring that AI systems adhere to ethical standards in handling sensitive personal data.

3. Fragmented AI Policies

• National AI Strategy: NITI Aayog’s National Strategy for Artificial Intelligence (NSAI) emphasizes AI’s transformative potential in India’s economy, particularly in sectors like agriculture, healthcare, and education. However, the strategy lacks a robust governance framework to oversee AI’s ethical, legal, and social implications.

• Sectoral Gaps: India’s AI policies are sector-specific but lack an overarching governance model that could unify ethical standards, transparency mandates, and liability regulations across industries. This fragmentation risks inconsistent application of AI standards, especially in sensitive sectors like healthcare and criminal justice.

• The Importance of a Unified Framework: India's policies should integrate sector-specific regulations within a unified framework for AI governance. This could follow the CoE’s example, wherein overarching human rights principles guide the development of sectoral AI regulations.

  
  

Can India Bring Similar Legislation?

The CoE’s rights-based approach to AI governance offers valuable lessons for India, but there are several contextual factors that India must consider while formulating AI laws. A direct replication of the CoE model may not be feasible, but India can certainly adapt key aspects.

1. Rights-Based Framework: Potential and Pitfalls

India’s democratic ethos aligns well with a rights-based AI governance model. Incorporating human rights protections in AI applications, especially in public services and surveillance, could enhance public trust and reduce biases.

• Challenges: India faces unique challenges in implementing such a framework. For instance, algorithmic bias in India often intersects with deep-rooted societal issues like caste and religion, which may not be fully addressed through a generic rights-based approach. Any AI legislation in India must be contextualized to its specific socio-political environment.

2. Balancing Innovation and Regulation

• Innovation Ecosystem: India’s AI landscape is rapidly growing, with startups and SMEs playing a vital role in driving AI innovation. Strict regulations, particularly around transparency and accountability, could hinder smaller players from developing competitive AI solutions.

• CoE’s Balance: The CoE strives to balance ethical AI use with innovation. India must also balance innovation with regulation, perhaps by offering “regulatory sandboxes” that allow startups to experiment with AI technologies under relaxed rules while maintaining ethical oversight.

3. Legal Liability and Accountability

• Need for Clarity: India’s legal framework lacks clear liability provisions for harms caused by AI-driven systems. Who is responsible when an AI system fails—developers, users, or the institutions that employ it? The CoE’s work on establishing AI liability models provides valuable insight into how India could address this issue.

• Adaptability: India can adapt CoE’s models by assigning responsibility based on the AI system’s intended use. For instance, more stringent liability should apply to AI in critical sectors like healthcare and finance, whereas experimental AI in innovation sectors could have more flexible liability standards

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Legislative Recommendations for India

Drawing from the CoE’s AI framework, India can introduce a comprehensive legislative framework that modernizes obsolete laws and addresses the unique challenges AI presents in its socio-economic context. Key recommendations include:

1. AI-Specific Legal Framework

• India needs an AI-specific legal framework that incorporates transparency, accountability, ethical standards, and human rights protections. This framework should extend across all AI applications, with clear provisions on liability, explainability, and fairness.

2. AI Ethics and Governance Body

• Establish an AI Ethics Committee under the Ministry of Electronics and IT (MeitY) to monitor AI’s development and deployment. This body should include policymakers, technologists, ethicists, and civil society representatives to ensure AI systems adhere to ethical guidelines and do not exacerbate societal inequalities.

3. Amend Obsolete Laws

Amend the Information Technology Act, 2000 to include AI-specific provisions. These amendments should cover liability issues for AI malfunctions, data governance in AI systems, and protections against algorithmic discrimination. The Act should also address the responsible deployment of AI in sectors like law enforcement, healthcare, and public administration.

4. Data Protection Enhancements for AI

• Strengthen the Digital Personal Data Protection Bill, 2023, by incorporating specific provisions that govern the use of data by AI systems. This includes clear guidelines on informed consent, ethical use of biometric data (like Aadhaar), and the prevention of data misuse by AI-driven systems. A data minimization principle could be introduced to ensure that AI systems do not process unnecessary or excessive data, particularly in sensitive sectors like healthcare.

5. Develop a Rights-Based AI Policy

• Adopt a rights-based framework for AI governance, akin to the CoE’s model, to protect individuals from AI-related harms. This policy should emphasize the protection of marginalized communities from algorithmic biases and ensure that AI systems respect human dignity, privacy, and equality. Special attention must be given to preventing caste, gender, and religious discrimination in AI-driven systems, which are more likely in the Indian context.

6. AI Transparency and Accountability Mandates

• Introduce mandatory transparency and accountability measures for AI systems, particularly those used by the government and public sector. These measures should require AI systems to be explainable, with decisions made by AI systems traceable and understandable to the public. Government agencies should disclose the algorithms and data sets they use in AI systems, particularly in high-risk applications like policing and surveillance.

7. Regulatory Sandboxes for AI Innovation

• To balance innovation and regulation, India can adopt the concept of “regulatory sandboxes” where AI innovators can test new technologies under a flexible regulatory environment. This will allow for experimentation while ensuring that ethical and legal standards are upheld. Regulatory sandboxes could be sector-specific, focusing on areas like healthcare, fintech, or agriculture, where AI is poised to have the most significant impact.

8. International Cooperation and Best Practices

• India should collaborate with international organizations like the Council of Europe, the United Nations, and the OECD to adopt global best practices in AI governance. This will not only help India stay aligned with global standards but also contribute to developing universally applicable ethical AI frameworks. The CoE’s commitment to cross-border cooperation on AI governance offers a valuable template that India can adopt in fostering international partnerships.

  
  

India stands at a crucial juncture where its rapid adoption of AI technologies demands a modern, rights-based legislative framework to address the ethical, social, and legal challenges posed by AI. The Council of Europe’s approach to AI governance offers a robust model that India can adapt to its unique socio-political and economic conditions. While replicating the CoE’s framework wholesale may not be feasible, India can draw inspiration from its principles, especially in human rights, transparency, and accountability.

To ensure AI’s responsible and ethical deployment, India must modernize its obsolete laws, introduce AI-specific regulations, and ensure that its AI strategies are aligned with the protection of individual rights. By doing so, India can create a future where AI enhances societal welfare without compromising fundamental human values.

Special Thanks to

Ambassador K.P. Fabian

Advisor, The Geojuristoday

Former Ambassador of India to Qatar