1. The judicial validity of the Talaq-e-Hasan mode of divorce
Does this form of annulment have basis in the Quran? What are the different modes of divorce under the Muslim Personal Law?
A petition filed by Benazir Hina, a Ghaziabad-based woman, seeks to make the prescribed Islamic way of divorce Talaq-e-Hasan unconstitutional as it is violative of Articles 14, 15 21 and 25 of the Constitution.
In instant triple talaq a man pronounces multiple divorce in one go. It has no scope for reconciliation and often ends a marriage instantly. Unlike instant triple talaq, Talaq-e-Hasan is pronounced with a gap of at least one month or one menstrual cycle.
Talaq-e-Hasan enjoys legal validity in almost all Muslim countries while instant triple talaq has been banned in many Muslim countries, including Egypt, Syria, Jordan, Kuwait, Iraq, Malaysia etc.
Ziya Us Salam
The story so far: A public interest litigation (PIL) seeking to invalidate Talaq-e-Hasan, the prescribed Islamic way of divorce, has been filed in the Supreme Court.
What is the PIL about?
The petition filed by Benazir Hina, a Ghaziabad-based woman, through Advocate-on-Record Ashwani Kumar Dubey, seeks to make the prescribed Islamic way of divorce Talaq-e-Hasan unconstitutional as it is violative of Articles 14, 15, 21 and 25 of the Constitution. Ms. Hina, who claimed to have been unilaterally divorced through the Talaq-e-Hasan mode by her husband Yousuf, also prayed that Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 that permits Muslims to practise unilateral divorce be declared void. The apex court had declined an urgent hearing on the subject in May this year. However, on June 17 a vacation Bench of Justices A.S. Bopanna and Vikram Nath allowed a plea for urgent hearing of the matter. It was argued that the aggrieved lady and her child would be left without a remedy if no intervention was made. The first talaq notice was given on April 19 and the second notice was issued on May 19.
The hearing comes almost five years after the five judge Bench headed by then Chief Justice J.S. Khehar, and including Justice R.F. Nariman, Justice Kurian Joseph, Justice U.U. Lalit and Justice S. Abdul Nazeer had invalidated instant triple talaq in their verdict in the Shayara Bano vs the Union of India and others case in August 2017. The invalidation of instant triple talaq where the court held, “What is bad in theology is bad in law as well”, led to the enactment of the Muslim Women (Protection of Rights on Marriage) Act 2019.
How is Talaq-e-Hasan different from instant triple talaq?
In instant triple talaq a man pronounces multiple divorce in one go. It has no scope for reconciliation between the feuding couple, and often ends a marriage instantly. It is, as the judges held, not mentioned anywhere in the Quran which prescribes a code of divorce largely through Surah Baqarah, verses 226 to 237 and the opening six verses of Surah Talaq. Incidentally, triple talaq in this manner has been banned in many Muslim countries, including Egypt, Syria, Jordan, Kuwait, Iraq, Malaysia etc.
Unlike instant triple talaq, Talaq-e-Hasan is pronounced with a gap of at least one month or one menstrual cycle. Only a single revocable divorce takes place through the first pronouncement of Talaq-e-Hasan. The husband and wife are supposed to live together after this pronouncement and have the option of rapprochement. If the couple is not able to mend fences in the intervening period and the husband does not annul divorce through word or by establishing intimacy, the talaq stays valid. At the end of this month, the husband has to pronounce divorce for the second time. Likewise for the third time. After the second pronouncement too, the divorce is revocable, and the couple may resume their conjugal relationship anytime they so desire. If, however, the third pronouncement is made after at least one menstrual cycle, then irrevocable divorce takes place. Significantly, no divorce can be administered when the woman is undergoing her menstrual cycle. Even in the case of pregnancy, no divorce takes place. And if such a pronouncement is made, it remains in abeyance till the end of pregnancy.
Ms. Hina argues that her divorce is invalid as she received her divorce notices when she was undergoing her menses. Unlike instant triple talaq, the Quran clearly mentions the process of Talaq-e-Hasan. According to Surah Baqarah, verse 229, “Divorce can be pronounced twice; then either honourable retention or kindly release should follow…” Likewise the opening verse of Surah Talaq states, “O Prophet, when you divorce women, divorce them for their waiting period, and compute the waiting period accurately…Do not turn them out of the homes (during the waiting period) nor should they go away…”
Are there other options of divorce apart from the Talaq-e-Hasan?
The third option of divorce besides Talaq-e-Hasan and the now repudiated instant triple talaq, is Talaq-e-Ahsan. Under this form, a single pronouncement is made. Following the pronouncement, a woman has to go through iddat or a waiting period of three months.
During this period the divorce can be cancelled. However, failure to annul divorce during this period results in it being finalised after which a woman is independent, and free to marry another man or stay single, as she may choose. Both Talaq-e-Hasan and Talaq-e-Ahsan enjoy legal validity in almost all Muslim countries.
Interestingly, women too have a right to end an unsuccessful marriage through Khula. Here a woman gives something to the man in return for annulling the marriage.
In April 2021, the Kerala High Court held this form of divorce valid. The court overruled a 49-year-old verdict in K.C. Moyin vs Nafeesa and Others (1972) that barred Muslim women from dissolving their marriage through non-judicial modes.
There is some debate among Islamic scholars on the ways of Khula. Some hold that the man’s consent is necessary in Khula while most say that he enjoys no such privilege.
2. The absurdity of the anti-defection law
It has reduced legislators to being accountable primarily to the party and failed to preserve the stability of governments
The anti-defection law was included in the Constitution to combat the “evil of political defections”. The main purpose was to preserve the stability of governments. The law stated that any MP or MLA would be disqualified from their office if they voted on any motion contrary to the directions issued by their party.
This means that anyone from the party having a majority in the legislature is unable to hold the government to account. All legislators will then have a ready explanation for their voting behaviour: they had to follow the party’s direction. This negates the concept of them having to justify their positions on various issues to the people who elected them to the post.
If stability of government is an issue due to people defecting from their parties, the answer is for parties to strengthen their internal systems. If they attract members on the basis of ideology, and have systems for people to rise within the party hierarchy on their capabilities, there would be a greater exit barrier.
M.R. Madhavan
In light of the events unfolding in Maharashtra, with the Uddhav Thackeray government facing internal dissent from a block of 22 MLAs led by Eknath Shinde, the anti-defection law has again come into the spotlight. In this article dated February 26, 2021, M.R. Madhavan explains how the law is antithetical to the representative purpose of elected government servants.
The events in Puducherry highlight, yet again, the absurdity of the anti-defection law. In what has now become the standard operating procedure, several MLAs from the treasury benches resigned, lowering the numbers required for a no-confidence motion to succeed. This formula has been seen recently in other States such as Madhya Pradesh and Karnataka.
The anti-defection law was included in the Constitution as the Tenth Schedule in 1985 to combat the “evil of political defections”. The main purpose was to preserve the stability of governments and insulate them from defections of legislators from the treasury benches. The law stated that any Member of Parliament (MP) or that of a State legislature (MLA) would be disqualified from their office if they voted on any motion contrary to the directions issued by their party.
Range of the provision
The provision was not limited to confidence motions or money bills (which are quasi-confidence motions). It applies to all votes in the House, on every Bill and every other issue. It even applies to the Rajya Sabha and Legislative Councils, which have no say in the stability of the government. Therefore, an MP (or MLA) has absolutely no freedom to vote their judgement on any issue. They have to blindly follow the direction of the party. This provision goes against the concept of representative democracy.
There are two broadly accepted roles of a representative such as an MP in a democracy. One is that they are agents of the voters and are expected to vote according to the wishes and for the benefits of their constituents. The other is that their duty to their constituents is to exercise their judgement on various issues towards the broader public interest. In this, they deliberate with other MPs and find a reasonable way through complex issues. The anti-defection law turns the concept of a representative on its head. It makes the MP neither a delegate of the constituency nor a national legislator but converts them to be just an agent of the party.
A broken chain in India
Look at the contrast with other democracies. For example, in the recent vote on the impeachment of former U.S. President Donald Trump, seven members from his party in the U.S. Senate, the Republicans, voted to convict him. Such a decision does not have any legal repercussion. Of course, the party may take action (it did not). Also, voters may decide to reject the legislator for re-election — and that is the core design element of representative democracy. The legislator is accountable to voters, and the government is accountable to legislators.
In India, this chain of accountability has been broken by making legislators accountable primarily to the party. This means that anyone from the party having a majority in the legislature — which is, by definition, the party forming the government — is unable to hold the government to account. Further, all legislators have a ready explanation for their voting behaviour: they had to follow the party’s direction. This negates the concept of them having to justify their positions on various issues to the people who elected them to the post.
Eroding legislatures
An important consequence of the anti-defection law is the hollowing out of our legislatures. If an MP has no freedom to take decisions on policy and legislative proposals, what would be the incentive to put in the effort to understand the different policy choices and their outcomes? The core role of an MP to examine and decide on policy, Bills and budgets is side-lined. Instead, the MP becomes just another number to be tallied by the party on any vote that it supports or opposes.
The framers of our Constitution did not intend this outcome. While introducing the draft Constitution, Dr. B.R. Ambedkar outlined the differences between the presidential and parliamentary forms of government. He said that the presidential form (such as in the United States) had higher stability but lower accountability as the President is elected for four years, and cannot be removed except for proven misdemeanour. In the parliamentary form, the government is accountable on a daily basis through questions and motions, and can be removed any time it loses the support of the majority of members of the Lok Sabha.
The drafting committee believed that India needed a government that was accountable, even at the cost of stability. The anti-defection bill weakens the accountability mechanism.
Inducing instability
What is more, it does not even provide stability. The political system has found ways to topple governments. This includes the methods used in Puducherry this week — of reducing the total membership through resignations. The Constitution was amended to ensure that any person disqualified for defecting cannot get a ministerial position unless they are re-elected; the way around this has been to resign rather than vote against the party. In other instances, the Speaker — usually from the ruling party — has delayed taking a decision on the disqualification. This has led to strange situations such as members who continue to be part of the main Opposition party becoming Ministers (Andhra Pradesh in the term of the last Assembly). The Supreme Court has tried to plug this by ruling that the Speaker has to take the decision in three months, but it is not clear what would happen if a Speaker does not do so. The premise that the anti-defection law is needed to punish legislators who betray the mandate given by the voters also seems to be flawed. If voters believe that they have been betrayed by the defectors, they can vote them out in the next election. However, we have seen many of the defectors in States such as Karnataka and Madhya Pradesh being re-elected in the by-polls, which were held due to their disqualification.
Onus is on parties
The problem arises from the attempt to find a legal solution to what is essentially a political problem.
If stability of government is an issue due to people defecting from their parties, the answer is for parties to strengthen their internal systems. If they attract members on the basis of ideology, and they have systems for people to rise within the party hierarchy on their capabilities (rather than inheritance), there would be a greater exit barrier. These characteristics seem absent in many of the political parties, and we have seen a large number of defections despite the anti-defection law.
To sum up, the anti-defection law has been detrimental to the functioning of our legislatures as deliberative bodies which hold the executive to account on behalf of citizens. It has turned them into fora to endorse the decision of the government on Bills and budgets. And it has not even done the job of preserving the stability of governments. The Tenth Schedule to the Constitution must be repealed.
3. Editorial-1: A wish list for reform in India’s higher judiciary
There are more important aspects relating to the retirement age of judges on which change in the system rests
Of late, there is a rumour doing the rounds between Raisina Hill and Tilak Marg. Twittering birds have it that the age of retirement of Supreme Court of India judges is to be increased to 67 years, not immediately but come a couple of months. This will fall during the tenure of Justice U.U. Lalit who by seniority is expected to take over as the Chief Justice of India (CJI) on August 27, 2022. Dehors the increase, Justice Lalit would have had two months in the august office; come the amendment, his tenure goes on to November 2024. This alteration in age would affect every successor notably Justice D.Y. Chandrachud who will see delay in his ascension from November 2022 to November 2024. All in all, quite momentous for court watchers. Also momentous for political watchers since the next Lok Sabha election is due by May 2024. Much therefore hangs on age, especially the looks of the Court.
Fallout is competition
However, there are more important aspects relating to the retirement age of judges on which reform may be hung, and some of these go far deeper than a mere biennial increase. For one, it is high time that we did away with the disparity between the retirement ages of High Court and Supreme Court judges; High Court judges now retire at 62 and Supreme Court judges at 65.
There is no good reason for this difference. It is not as though grey cells of High Court judges decline dramatically after 62 or those of Supreme Court judges shine glowingly for three years thereafter. Judges, like other men and women of law, are professionals who have long working spans and are capable of good useful work well into their 60s. Age does not wither them easily. The obvious negative fallout of a differential retirement age simply is intense pressure and competition to make it to the top court and thus get three more years. If this is done away with, several judges of mettle would prefer to be Chief Justices and senior judges in the High Courts exercising wide power of influence rather than being a junior judge on a Bench of the Supreme Court. There is good work to be done in the High Courts, and we need good men there.
Needed, a culture of service
But let us not stop there, and instead move to consider what happens to Supreme Court judges after their tenure in the Supreme Court. Several focus on arbitrations and amass considerable fortunes with high fees and multiple sittings. Indeed, some say that they make more money in one year of arbitration than in their entire judicial careers. A minority of judges devote themselves to public service; sadly, this is a very small minority. Another lot are appointed to various constitutional posts and tribunals and commissions. It would be worthwhile reform to create a cadre of public service for retired judges and from this pool make appointments to the constitutional and statutory posts and special assignments. Such judges should receive the full pay and the facilities of a judge of the Supreme Court for life. Obviously they should be barred from arbitrations; it should further be provided that if any judge is unwilling to be a part of the cadre and instead wishes to pursue arbitrations post retirement, then senior positions on the Supreme Court such as the membership of the collegium ought not to be available for them. We should have a culture of public service for senior judges, and those who do not fit in such culture should not be a part of senior ranks.
Serve equally
It is generally assumed that the seniormost judge of the Supreme Court should be the Chief Justice of India, but we may pause to consider whether this is what the law mandates, and whether it is wholly wise. As to the first, the Constitution mandates no such thing. Article 124 merely states that the President will appoint every judge of the Supreme Court, and this includes the Chief Justice, and each of these judges shall hold office until they attain the age of 65 years. The requirement about appointing the seniormost judge to be the CJI is a sleight of hand devised in the Second Judges case (1993) and the consequent Memorandum of Procedure which is an obvious and naked usurpation of the President’s power and a blatant attempt to rewrite the Constitution. It has no constitutional legitimacy. As to wisdom, public purpose is better served by ensuring that the judges of the Supreme Court during their entire tenure are not swayed by their expectations or aspirations to the higher office of CJI, and do not on that account calibrate their views or pause before judgement. Human frailties are human frailties, and judges are no exception much as they may consider themselves to be. There are sufficient examples in India’s judicial history of aberrational judicial conduct with the Holy Grail in view, as also refusing to hear contentious cases which may provoke the executive red or orange light. Indeed, there is no good reason why any one particular person should have a vested interest in the top job, and we are better served by eliminating such expectation. Let all serve equally under the constitutional throne for the entire length of their tenure.
Choosing a leader
Who then shall be primus inter pares, the first among equals? For the court needs a leader. Go back to the Constitution again; among its catchpool for judges of the Supreme Court are judges of the High Court, senior advocates and distinguished jurists. For argument’s sake let us take the first. Since we want to keep serving sitting Supreme Court judges inviolate from all but the purest influences, let us say that when a serving CJI retires, his successor should be the best reputed Chief Justice of a High Court who has proved himself worthy both in judicial office as well as administrative leadership and has those qualities of heart and head which mark a good leader. Do not forget that M.C. Chagla and P.V. Rajamannar, two of our most eminent judges, retired as Chief Justices of the Bombay High Court and the Madras High Court, respectively. The appointee should have a clear three year term — not the truncated weeks and months that some CJIs now get. But he should not function as the primus super pares as many CJIs nowadays do — calling the shots and having their unfettered way. He should instead function in a true collegiate manner, especially in regard to the roster of allotment of cases, especially the sensitive ones, and appointments to the Supreme Court and High Courts and other important matters of judicial and administrative importance. Such a combination of CJI so chosen working with senior ranking colleagues will make collegiate functionality both a natural course and an imperative necessity.
Lest that anyone should think that this is an idea coming from outer space, this is invariably followed in making the appointment of the Chief Justice of the United States Supreme Court. Only five of its 17 Chief Justices served earlier as an Associate Justice, the rest came fresh to the Court. It is part of a system designed to relieve excessive power and pressure.
4. Editorial-2: It is time India plans a hub airport flight path
The country should move quickly as favourable factors and opportunities balance out the impediments
Transforming one of India’s metro gateway airports into a hub airport deserves consideration as the aviation market puts the novel coronavirus pandemic behind it and passenger demand surges.
Today, India is the third largest domestic aviation market in the world, next only to the United States and China. Consumer confidence in air travel has helped the industry recover faster than anticipated. Some airports have already breached or are close to matching the traffic demand seen before the pandemic.
Besides, in view of the surge in passenger demand, India’s airport operators have planned investments upwards of ₹90,000 crore to enhance capacity over the next four years or so.
To boot, the conditions are just right for building a hub airport.
The concept
What exactly is a hub airport?
A hub airport is one served by a multitude of airlines, connecting several airports through non-stop flights.
Historically, airports were designed keeping the requirements of the origin/destination passenger in mind. This meant operating separate arrival and departure terminals.
Over time, better space-utilisation concepts led to the construction of a common passenger terminal with arrival/departure flows segregated on different floor levels. This spawned a new segment of passengers — transit flyers, who use the airport only to connect flights.
A typical hub airport operates on the concept of waves. A wave of incoming flights arrives and connects with another wave of outgoing flights that departs an hour or two later. ‘Hubbing’ allows for the maximum combination of flight pairs and a wider choice of destinations and frequencies for connecting passengers.
Importantly, while an aspiring hub looks at attracting foreign airlines to widen the number of direct point-to-point connections, it thrives on airlines nestled (based) at that airport, which dedicate more resources, aircraft, crew, manpower and infrastructure, and are enablers of growth. Some global examples are (Hub airport/Home airline): London/British Airways; Frankfurt/Lufthansa; Atlanta/Delta Airlines; Dallas/American Airlines; Singapore/Singapore Airlines; Paris/Air France; Dubai/Emirates; Chicago/United Airlines; New York/American Airlines and Delta Airlines; Hong Kong/Cathay Pacific.
Why it is a win-win for all. A hub creates economies of scale for the airport and airlines alike.
The airport benefits from increased direct connectivity with other airports and more revenue opportunities due to increased passenger footfalls. Improved passenger throughput has a knock-on effect on the wider airport ecosystem, such as aero and non-aero service providers at the airport, including cargo and ground handling, fuelling, retail and duty-free, vehicle parking, aircraft maintenance repair and overhaul (MRO), and fixed-base operation (FBO) services at the airport.
Airlines, on their part, get to serve city pairs that are otherwise economically unviable for non-stop flights.
Frequent fliers and business travellers get greater choice and flexibility with flights, destinations, and service frequencies, as well as lower ancillary costs, such as avoiding the time and cost of an overnight stay.
A force multiplier
From the government’s perspective, an airport acts as a force multiplier with economic activity, jobs and employment, investments, business, trade, commerce, tourism, culture, and benefits other sectors of the economy. It is well established that the creation of one job in the aviation sector affects the creation of up to six jobs in allied sectors, such as tourism and hospitality.
All this propels the economic and social development of the city and its inhabitants, too.
Let us look at considerations for a hub airport in India. There are three basic requirements for becoming a major airport hub, whether domestic or international, i.e. sufficient local consumer demand; good geographic location, and necessary infrastructure to support high-volume traffic. In India’s case, the first two requirements are largely addressed and the focus is rightly on addressing the third requirement.
An India perspective
In the context, here is a look at the favourable factors, impediments, and opportunities.
In considering the factors in favour: India has the largest diaspora, or transnational community, at 18 million people across all six continents and regions (based on the UN Department of Economic and Social Affairs, Population Division – Report on International Migration 2020); India is located on busy international air corridors that connect Europe, Africa, and the Middle East with Asia, making it ideal for a transit hub and alternative/diversion/fuel stop/technical stop; being the fifth-largest economy in nominal GDP terms (IMF World Economic Outlook Database April 2019) and the seventh largest by land mass, India can support development of more than one hub airport; airport business in India is largely monopolistic, with no competing airport in the same urban area; airport development in India is a regulated business with minimum downside risk for investors; airport tariff determination under the Airports Economic Regulatory Authority of India is a robust, fair, and transparent process
Let us consider the impediments. There are capacity constraints at major airports because of a lack of landing slots, especially during peak hours; the Airports Authority of India Act (AAI), 1994 constrains the AAI/airport operators from commercially exploiting available land for non-aeronautical activities; a ‘high cost-low fare’ operating environment and increased competition hurts airline balance sheets and financials, which hurts the growth of airports; India has 34 operational international airports, yet smaller international airports are either completely left out or have very limited scope in starting international flight operations; rationalisation of duties and taxes, such as bringing aviation turbine fuel under the ambit of goods and services tax, will enable airlines to reduce costs and emerge financially stronger, thereby benefiting airports
And, finally, the opportunities. There is a need to develop inter-modal connectivity (rail/road – air) and logistics support infrastructure (warehousing) as a part of the future airport master plans to fully exploit potential with cargo and freight; aspiring hub airports can partner with tier-2 and tier-3 airports in their catchments; airports can broaden their revenue base by developing allied service capabilities, such as cargo handling, aircraft MRO and FBO.
5. Editorial-3: Progress without limits
India must ensure 5G caters to the largest sections of the population
The Union Cabinet last week cleared the decks for the first auction of radio spectrum to facilitate the roll-out of 5G telecommunication services. The Department of Telecommunications promptly issued a 159-page ‘Notice Inviting Applications’, detailing the specifics of the auction including the frequencies that would be up for bidding starting on July 26, and their reserve prices. The speed with which the Government has moved — from the initial announcement in the Union Budget to the telecom regulator’s recommendations, and finally notification of the auction — has been commendable and shows its keenness to ensure India is at the relative vanguard in the adoption of the potentially ‘transformative’ technology. The Government has underscored that its primary motivation is to boost digital connectivity, a laudable objective given that the rapid growth of wireless telephony has perceptibly helped improve the delivery of services such as mobile banking, online education and telemedicine. The rub, however, is in the details. While most of the specific frequency bands that telecom providers consider optimal for the introduction of 5G services have been made available, including in the sub 1 GHz range, a C-Band frequency of 3.3 GHz, and the higher 26 GHz, the Government’s decision to set the reserve price for the spectrum based on the regulator’s recommendations reveals a prioritisation of revenue over the industry’s long-term health. Even considering that an option for a staggered annual pay-out of the licence fee over its 20-year term has been provided, the price is still high.
This is particularly so when one considers the level of financial stress that has shrunk the sector to a near duopoly, and forced the surviving operators to resort to tariff increases to protect their viability and ability to make future investments. With 5G’s adoption for the various possible end uses that leverage machine-to-machine communication such as IoT, smart agriculture, smart homes and others that bank on reliability, including smart grids and autonomous vehicles, still in its relative infancy even in advanced economies, the technology is yet some years away from scale-based economic viability. The relatively small size of the market for just faster downloads of videos and games, especially at a higher cost, makes it near certain that service providers will take an ultra-cautious approach both to bidding for spectrum and in rolling out services. The Cabinet’s decision to allow bids for starting Captive Non-Public Networks that would enable individual companies to run private networks within the isolated confines of the enterprise has also roiled the pitch. It is hard to imagine the urgency to open up 5G for this niche application, particularly as it further undermines the economics for traditional telcos. India must be conscious of the challenges and opportunities of 5G services, and ensure that the technology caters to the largest sections of the population and not remain a deliverer for a high-value but limited, premium segment.
6. Editorial-4: A new global standard for AI ethics
UNESCO’s global agreement on the ethics of AI can guide governments and companies alike
Artificial intelligence (AI) is more present in our lives than ever. From predicting what we want to see as we scroll through social media to helping us understand weather patterns to manage agriculture, AI is ubiquitous. AI algorithms can also be partially credited for the rapidity with which vaccines were developed to tackle COVID-19. The algorithms crunched complex data from clinical trials being undertaken in all corners of the world, creating global collaborations that could not have been imagined even a decade ago.
Issues in AI
But AI-related technology cannot be said to always be beneficial. The data used to feed into AI often aren’t representative of the diversity of our societies, producing outcomes that can be said to be biased or discriminatory. For instance, while India and China together constitute approximately a third of the world’s population, Google Brain estimated that they form just 3% of images used in ImageNet, a widely used dataset. Similarly, there are problems emerging in facial recognition technologies, which are used to access our phones, bank accounts and apartments, and are increasingly employed by law-enforcement authorities, in identifying women and darker-skinned people. For three such programs released by major technology companies, the error rate was 1% for light-skinned men, but 19% for dark-skinned men, and up to 35% for dark-skinned women. Biases in facial recognition technologies have led to wrongful arrests. These challenges are not surprising when we look at how AI is developed. Only one in 10 software developers worldwide is a woman. These women come overwhelmingly from western countries.
These issues are of particular importance to India, which is one of the world’s largest markets for AI-related technologies, valued at over $7.8 billion in 2021. Indeed, the National Strategy on Artificial Intelligence released by NITI Aayog in 2018 highlights the massive potential of AI in solving complex social challenges faced by Indian citizens across areas such as agriculture, health, and education, in addition to the significant economic returns that AI-related technologies are already creating.
To ensure that the full potential of these technologies is reached, the right incentives for ethical AI governance need to be established in national and sub-national policy. India has made great strides in the development of responsible and ethical AI governance, starting with NITI Aayog’s #AIForAll campaign to the many corporate strategies that have been adopted to ensure that AI is developed with common, humanistic values at its core.
However, until recently, there was no common global strategy to take forward this importance agenda. This changed last November when 193 countries reached a groundbreaking agreement at UNESCO on how AI should be designed and used by governments and tech companies. UNESCO’s Recommendation on the Ethics of Artificial Intelligence took two years to put together and involved thousands of online consultations with people from a diverse range of social groups. It aims to fundamentally shift the balance of power between people, and the businesses and governments developing AI. Indeed, if the business model of how these technologies are developed does not change to place human interests first, inequalities will grow to a magnitude never before experienced in history; access to the raw material that is data is key.
Countries which are members of UNESCO have agreed to implement this recommendation by enacting actions to regulate the entire AI system life cycle, ranging from research, design and development to deployment and use. This means they must use affirmative action to make sure that women and minority groups are fairly represented on AI design teams. This could take the form of quota systems that ensure that these teams are diverse or the form of dedicated funds from their public budgets to support such inclusion programmes.
The Recommendation also underscores the importance of the proper management of data, privacy and access to information. It establishes the need to keep control over data in the hands of users, allowing them to access and delete information as needed. It also calls on member states to ensure that appropriate safeguards schemes are devised for the processing of sensitive data and effective accountability, and redress mechanisms are provided in the event of harm. All of this takes enforcement to the next level.
Additionally, the broader socio-cultural impacts of AI-related technologies are also addressed, with the Recommendation taking a strong stance that AI systems should not be used for social scoring or mass surveillance purposes; that particular attention must be paid to the psychological and cognitive impact that these systems can have on children and young people; and that member states should invest in and promote not only digital, media and information literacy skills, but also socio-emotional and AI ethics skills to strengthen critical thinking and competencies in the digital era. This is all critical for ensuring accountability and transparency of AI-related technologies, underpinning a strong rule of law that adapts to new digital frontiers.
In a number of countries, the principles of the Recommendation are already being used in AI regulation and policy, demonstrating their practical viability. Finland provides an example of good practice of this regard, with its 2017 AI Strategy. This was the first of its kind in any European country and demonstrated how governments can effectively promote ethical AI use without compromising the desire to be on the cutting edge of new technologies.
A common rulebook
The new agreement is broad and ambitious. It is a recognition that AI-related technologies cannot continue to operate without a common rulebook. Over the coming months and years, the Recommendation will serve as a compass to guide governments and companies, to voluntarily develop and deploy AI technologies that conform with the commonly agreed principles it establishes – similar moves happened after UNESCO’s declaration on the human genome set out norms for genetic research. Second, it is hoped that governments will themselves use the Recommendation as a framework to establish and update legislation, regulatory frameworks, and policy to embed humanistic principles in enforceable accountability mechanisms. To accompany countries in the realisation of the full potential of AI and with the aim of building the institutional capacity of countries and all the relevant stakeholders, UNESCO is in the process of developing tools to help them assess their readiness in the implementation of the Recommendation and identify, monitor and assess the benefits, concerns and risks of AI system.
With this agreement, we are confident of putting AI to work where it can have the most impact: hunger, environmental crises, inequalities and pandemics. We are optimistic of having built the momentum for real change.
