June 25, 2020
June 25, 2020

Regulating the Doctrine of Public Policy through Artificial Intelligence in times of COVID-19

“Algorithms are developing their capabilities to regulate humans faster than humans are developing their capabilities to decode the algorithm.”
In the grundnorms of most liberal democracies it is a well-settled phenomenon that providing and maintaining public order in society is as important as freedom of any individual. Public order can be understood as creating a public sphere where every individual’s rights are protected by state, and the state works with the motive of social welfare. Every single policy which a state makes with the objective of social welfare can be termed as public policy. John Rawls in his Theory of Justice has prescribed that “Maintenance of Public Order is understood as providing for such conditions in which individuals are able to attend their ends”.
India through the Directive Principle of State Policy in its constitution has inherited the doctrine of public policy in its legal and constitutional framework. These are certain principles contained in Part IV that directs the state to make certain policies for welfare of the people. In the times of COVID-19 responsibilities of state increases to ensure that citizen’s health is given topmost priority. Therefore in current situations definition of public order has completely changed. Establishing social welfare means giving best of the health facilities to the people and ensures that their rights and health both are protected simultaneously.   
State in the critical conditions like these should adopt the Doctrine of Parens Patrie which prescribes that state should act as parents of the nation, because in condition like this degree of care should be maximized to what it was in normal circumstances. In India, it is the Executive, Legislative and Judiciary which are entrusted with the regulation of Doctrine of Public Policy in different sphere of society. All three components operate with a common resource that is human resource. One thing which unites different public policies of different democracies is human resource.
For better or worse, due to lack of alternatives states have to use humans as a medium to implement policies in society. A debate has been going on for a long time between scholars on the application of technology in functioning of government to create a state of social welfare. In the modern era a new technology has developed which is capable of replacing humans and work even more efficiently. This technology is termed as Artificial Intelligence.   
Legal scholars have always considered Role of Artificial Intelligence in legal field as an intriguing area of research. But, in these critical times where states are in battle against COVID-19, indulging artificial intelligence in governance has been highly productive. Different jurisdictions have come up with the framework to take the assistance of Artificial Intelligence.  
Drone Surveillance:
Drones have the potential of delivering essential products and medicines which can be a key factor to fight a pandemic. Drone combined with technologies like face recognition, real-time thermal imaging cameras results in a great asset for the authorities who are entrusted with the duties like surveillance and patrolling of public. Various states’ police departments have also delegated this work on drones and it has resulted in efficiency. It is used in enforcing lockdown imposed by the government to curb the spread of disease in public.                        
Given that Indian cities have expanded vertically are streets are so much narrowed down with so many houses that whole area becomes congested. In such circumstances, use of drones might not synchronize well with privacy laws. Supreme Court in the case of K.S. Puttaswamy v. Union of India (2012) recognized the right to privacy as an inalienable fundamental right which can only be reasonably restricted in certain circumstances. The Right to privacy originates from the Doctrine of legitimate expectancy that one an individual through its behavior shows that he wants privacy in a particular area then government should acknowledge the same.
By implementing drones in executive activities like patrolling, surveillance its functioning is not only limited till streets but also extend to the terrace of person residing there. One’s home which also includes terrace should not be encroached upon as it forms a part of physical or spatial privacy. On the other hand some scholars are of opinion that this is a special circumstance and in this situation a reasonable restriction on right to privacy should be imposed in order to execute surveillance function.  
Regulatory Framework of Drones:
Over the period of time India has seen a dramatic shift from a complete ban on the remotely piloted aircraft system to a regulated use of the same. Regulations on drones are imposed by Directorate General of Civil Aviation (DGCA). In August 2018 DGCA issued Drone Regulations 1.0 which laid down certain requirements for operation of Civil Remotely Piloted Aircraft Systems (RPAs). These made it mandatory that all the drones which are used in civil sphere should have Unique Identification Number (UIN) & Unnamed Aircraft Operator Permit (UAOP) and it should operate in day time only. With this Digital Sky Platform (DSP) was also launched which is platform that permits users to register their own drones, it established the policy of “No permission – No takeoff”.
To further liberalize the use of drones in commercial and civil sphere a task force was created by The Ministry of Civil of Aviation, on whose recommendation Drones Regulation 2.0 which consist of Drone Ecosystem policy was released on January 15, 2019. Pursuant to this notification Ministry of Civil Aviation has registered 19,553 Drones in India. With the apparent inclination in the use of drones in the upcoming time it is important Right to privacy is respected and safety, security at large is not affected.          
Virtual Courts:
Law and Jurisprudence are not static but mirror societal needs and often shape them. Current societal need is social distancing therefore the concept of virtual courts is adopted by Judiciary. About 15 years ago, Delhi initiated a pilot project with Tihar Jail for dealing with routine remand cases. The procedure prescribed that prisoners being produced in court not physically but through video conferencing, this was the starting point of an online court in India. Lockdown has provided Indian Judiciary an opportunity to adapt the method for day to day activities. Courts are rendering justice in virtual environment. Some of the High courts have completely dispensed the use of paper. Everything is on the soft copy, through e-filling and scanned documents. Lawyers and Judges have made necessary adjustments to their regime in order to adapt to Paperless Courts.   
A virtual court is a unique contribution of e-Courts project but it is not alien to our judiciary. In August, 2018 a Pilot Virtual Court was launched in Delhi for traffic offences which was a great success. A virtual court is a simple programme through which a person can find out if a challan has been issued to him or her through a search facility. If a challan was issued the details are made available online and the person can plead guilty or non-guilty. In case of guilty plea, minimum fine is imposed and in the case of non-guilty case is transferred to the traffic court for trail. All it takes is one judge to handle the cases of Delhi or an entire state.
In the wake of pandemic courts running online are an efficient but not a hindrance free method of delivery of justice. The chairman of Bar Council of India has voiced a concern that 90% of lawyers are not computer literate or tech savvy. Therefore the Bar Council and Bar Association must stretch their resources to educate their district and taluka lawyers on advantage of accepting technologies. Some technical problems have also surfaced in the virtual courts. Attention need to be paid by the Bar Council so that process of rendering justice doesn’t lacks in this pandemic.
Artificial Intelligence in Policy Making:
Public Dialogue is considered as a key in framing of policy in any democratic nation. A public dialogue is a myth in absence of a public gathering. In situation of pandemic gathering of people is not allowed even for policy making, especially when the person entrusted with the job is different ministers at center as well as state level. This is the reason why no. of video conferencing between the Chief Ministers and Prime Minister have increased as no policy made by center can be imposed without a having a public dialogue upon it.
This is later stage of policy making where a policy is formed and authorities discuss upon it. Even in the preliminary stage which is data collection, government is dependent upon the technology. The government has already launched an Artificial Intelligence enabled smart phone application called Aarogya Setu, which helps users check that they have crossed path with any person found positive for coronavirus. The app uses the phone number of the user along with their location and matches its movement with Indian Council of Medical Research (ICMR) data on the backend. The ICMR data already has the movement of patients who have tested positive. Based on this data the areas are further classified in zones.
Therefore governance cannot be done by any state in absence of artificial intelligence. As discussed above executive by way of drone surveillance, Judiciary by way of virtual courts and Legislature by way of virtual public dialogue and e-data collection. All three complements of governance rely upon artificial intelligence, which is ideal form of Public Policy as policies should mold itself as per need for hour. Jurisprudential aspect of law considers it as mirror reflection of societal needs therefore; law should not be rigid but mold itself as per the needs of society.        


Rishabh Mattad is a 4th Year B.A.LL.B. Student from Symbiosis Law School, Noida. 
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