The Hindu Editorial Analysis
20 April 2021

1) Protecting children in the age of AI

Their rights, privacy, and well-being must be protected in digital environments just as they are in the physical world

GS 3: Artificial Intelligence


  • We are now living among history’s very first “AI” generation. From the Alexas they converse with, to their robot playmates, to the YouTube wormholes they disappear into, the children and adolescents of today are born into a world increasingly powered by virtual reality and artificial intelligence (AI).
  • AI is not only changing what humans can do, it is shaping our behaviors, our preferences, our perceptions of the world and of ourselves.
  • Older people still remember life before AI and the digital world — our references, anchors, and pole stars pre-date the fourth Industrial Revolution.

The task ahead

  • Double imperatives — this would mean getting all children online and creating child-safe digital spaces
  • According to UNICEF and the International Telecommunication Union (ITU), as many as two-thirds of the world’s children do not have access to the Internet at home.
  • In the old-fashioned physical world, we evolved norms and standards to protect children.
    • For instance, there are policies and protocols for a child travelling alone as an unaccompanied minor.
    • Parents are understandably reluctant to let their children be photographed by the media, and in many countries, news outlets blur children’s faces to protect them.
  • The virtual world is full of unsupervised “vacations” and “playgrounds” — with other children and, potentially, less-than-scrupulous adults, sometimes posing anonymously as children.
  • Short of banning screen time entirely, parents are hard-pressed to keep tabs on just what their children are doing online, and with whom.
  • With online homework, this has become even more difficult.

Right to freedom of attention

  • Children, from a tender age through adolescence, are becoming digitally addicted.
  • Right when children and youth are forming their initial views of the world, they are being sucked into virtual deep space, including the universe of fake news, conspiracy theories, hype, hubris, online bullying, hate speech and the likes.
  • With every click and scroll, AI is sorting them into tribes, and feeding them a steady diet of specially customized tribal cuisine.

Harvesting, algorithmic bias

  • Other insidious pitfalls also lie in the path of the Generation AI child.
  • Today, many AI toys come pre-programmed with their own personality and voice.
    • They can offer playful and creative opportunities for children, with some even promoting enhanced literacy, social skills, and language development.
    • However, they also listen to and observe our children, soaking up their data, and with no framework to govern its use.
  • Some of these AI toys even perform facial recognition of children and toddlers.
    • Germany banned Cayla, an Internet-connected doll, because of concerns it could be hacked and used to spy on children.
    • Yet, most countries do not yet have the legal framework in place to ban such toys.
  • Finally, in the field of education, AI can and is being used in fabulous ways to tailor learning materials and pedagogical approaches to the child’s needs — such as intelligent tutoring systems, tailored curriculum plans, and imaginative virtual reality instruction, offering rich and engaging interactive learning experiences that can improve educational outcomes.
  • And unless the educational and performance data on children is kept confidential and anonymous, it can inadvertently typecast or brand children, harming their future opportunities.

Rights, protections

  • The next phase of the fourth Industrial Revolution must include an overwhelming push to extend Internet access to all children.
  • Governments, the private sector, civil society, parents and children must push hard for this now, before AI further deepens the pre-existing inequalities and creates its own disparities.
  • And on mitigating on-line harms, we need a multi-pronged action plan:
    • We need legal and technological safeguards;
    • We need greater awareness among parents, guardians, and children on how AI works behind the scenes;
    • We need tools, like trustworthy certification and rating systems, to enable sound choices on safe AI apps;
    • We need to ban anonymous accounts;
    • We need enforceable ethical principles of non-discrimination and fairness embedded in the policy and design of AI systems —
    • We need “do no harm” risk assessments for all algorithms that interact with children or their data.
    • In short, we need safe online spaces for children, without algorithmic manipulation and with restricted profiling and data collection.
  • And we need online tools (and an online culture) that helps
    • Prevent addiction,
    • That promotes attention-building skills, that expands children’s horizons, understanding, and appreciation for diverse perspectives, and
    • That builds their social-emotional learning capabilities.

Key first step

  • In February, in a landmark decision, the UN Committee on the Rights of the Child adopted General Comment 25, on implementing the Convention on the Rights of the Child and fulfilling all children’s rights in the digital environment. This is an important first step on the long road ahead.
  • The Government of India has put in place strong policies to protect the rights and well-being of children, including a legislative framework that includes the Right to Education.
  • Laws and policies to prevent a range of abuses and violence, such as the National Policy for Children (2013), can be extended for children in a digital space.
  • But much more needs to be done, here in India and around the world.
  • And in this interconnected world, the more we can agree upon multilaterally and by multi-stakeholder groups, the easier it may be to implement nationally and locally.
  • Just as India proactively helped shape the Universal Declaration of Human Rights and gave the world the principle of Ahimsa, it could also galvanise the international community around, ensuring an ethical AI for Generation AI.

2) The ordinance route is bad, re-promulgation worse

Governments, Centre and State, are resorting to the practice which is a usurpation of legislative power by the executive

GS 2: Polity & Governance


Context:

  • The central government has re-promulgated the ordinance that establishes a commission for air quality management in the National Capital Region, or the Commission for Air Quality Management in National Capital Region and Adjoining Areas Ordinance, 2020.
  • This raises questions about the practice of issuing ordinances to make law, and that of re-issuing ordinances without getting them ratified by Parliament.

Ordinance in Indian Constitution:

  • Article 123 deals with the ordinance making power of the President. President has many legislative powers and this power is one of them.
  • The Constitution permits the central and State governments to make laws when Parliament (or the State Legislature) is not in session for urgent requirements with an automatic expiry date of 6 weeks from next meet.
  • In the Constituent Assembly, while there was a discussion on how long the ordinance could remain valid (with some members asking for it to lapse within four weeks of promulgation as that would be sufficient time to call an urgent session of Parliament), no one raised the possibility of an ordinance to be re-promulgated. Perhaps such an eventuality was beyond their imagination.

What the data show

  • Whereas an ordinance was originally conceived as an emergency provision, it was used fairly regularly.
    • In the 1950s, central ordinances were issued at an average of 7.1 per year.
    • The number peaked in the 1990s at 19.6 per year, and declined to 7.9 per year in the 2010s.
    • The last couple of years has seen a spike, 16 in 2019, 15 in 2020, and four till now this year.
  • State governments also used this provision very often. The issue was brought up in the Supreme Court through a writ petition by D.C. Wadhwa, a professor of economics, who discovered this fact when he was researching land tenures.
    • He found out that Bihar had issued 256 ordinances between 1967 and 1981, of which 69 were repromulgated several times, including 11 which were kept alive for more than 10 years.
  • A five-judge Constitution Bench of the Supreme Court, in 1986, ruled that repromulgation of ordinances was contrary to the Constitutional scheme.
  • It would enable the Executive to transgress its constitutional limitation in the matter of law making in an emergent situation and to covertly and indirectly arrogate to itself the law making function of the Legislature.
  • Interestingly, the Court pointed out that there was not a single instance of the President (i.e., the central government) repromulgating an ordinance.
  • The judgment did not stop the practice. Instead, the Centre also started to follow the lead of Bihar.
    • For example, in 2013 and 2014, the Securities Laws (Amendment) ordinance was promulgated three times.
    • Similarly, an ordinance to amend the Land Acquisition Act was issued in December 2014, and repromulgated twice – in April and May 2015.

An unconstitutional practice

  • The matter came up again in the Supreme Court, and in January 2017, a seven-judge Constitution Bench declared this practice to be unconstitutional.
    • The judgment concluded that, “Re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes.”
  • Even this judgment has been ignored.
    • The Indian Medical Council Amendment Ordinance was issued in September 2018, and reissued in January 2019, as it was passed by only one House of Parliament in the intervening session.
    • The current case of the Commission for Air Quality Management is even more egregious. While the ordinance of October 2020 was laid in Parliament on the first day of the recent Budget Session, a Bill to replace it was not introduced.
  • States have also been using the ordinance route to enact laws.
    • For example, in 2020, Kerala issued 81 ordinances, while Karnataka issued 24 and Maharashtra 21.
    • Kerala has also repromulgated ordinances: one ordinance to set up a Kerala University of Digital Sciences, Innovation and Technology has been promulgated five times between January 2020 and February 2021.

Onus on legislatures, courts

  • The legal position is clear, and has been elucidated by constitution Benches of the Supreme Court.
  • Repromulgation is not permitted as that would be a usurpation of legislative power by the executive.
  • As governments, both at the Centre and States, are violating this principle, the legislatures and the courts should check the practice.
  • That is what separation of powers and the concept of checks and balances means.
  • By not checking this practice, the other two organs are also abdicating their responsibility to the Constitution