Regulatory and Legislative Hurdles with the Advent of AV Technology in India
This blog post is written by Akshaya Kapoor, who is a fourth year student in the B.B.A LL.B (Hons.) Programme at the Jindal Global Law School (O.P. Jindal Global University, Sonipat, Haryana, India).
From an International Law perspective, the Vienna Convention on Road Traffic of 1968, which is an international agreement binding over 70 States to uniform traffic legislations, mandates that the driver must be in control of the car at all times. To account for changing trends, the treaty was amended first in 2014 and thereafter in 2016 allowing for automated driving technologies so long as such systems could be overridden or switched off by the driver. Consequently, SAE level 5 vehicles are still impermissible because of the abovementioned prerequisite. That said, several countries have formulated unique regulations for the testing and operation of AVs in their pursuit of embracing the automated future. Admittedly, India is still lacking as against its western counterparts.
One of the largest in the world, the Indian automotive sector contributes a whopping 7.1% to its GDP, in addition to creating jobs, exports and bringing FDI into the nation. Only recently, even Tesla Motors entered the Indian market. However, the country neither has any AV-specific legislations nor is the existing framework very AV friendly or ready. The Motor Vehicles Act, 1988 (“Act”) and its adjoining rules are the principal legislation governing transportation and operation of automobiles in India. The Act does not permit any form of transportation without a human operator. Although the draft Motor Vehicles (Amendment) Bill of 2017 had proposed AV testing, it is pending assent till date. The bigger problem is the apportionment of liability. Currently, the claimant is awarded compensation from the defendant for death or permanent disablement arising out of a road accident, based on the principle of ‘no fault liability’. Being a welfare legislation, the Act ensures the victim receives statutory relief irrespective of contributory neglect or default.
However, with AVs it will be very difficult to gauge and assess liability going by the aforementioned formula. An accident involving a driverless car may be caused by various reasons such as design and manufacturing defects, software malfunctions and hacking. In such scenarios, the manufacturer or the relevant third-party must be held liable for compensation rather than the owner/operator. Reference can also be made to The Consumer Protection Act, 2019. As per the provision on product liability therein, the manufacturer would be liable to compensate for a faulty product or any deficiencies in service. However, clarifications on the legal personality of AI and whether the technology is a product or a service would be needed. Apart from this, provisions in the Act regarding licensing, testing, and vehicle registration would also require an overhaul. To deal with data protection and cybersecurity, the scope of Section 66 of The Information Technology Act, 2000 (Computer Related Offences) would have to be enlarged to account for AI systems in AVs.
Keeping aside the legislative hurdles, India faces several grassroot issues as well. Firstly, the country has poor road and transport infrastructure. Secondly, discussions on AI in the automobile industry are in a nascent stage. NITI Aayog’s policy paper titled “National Strategy for Artificial Intelligence”, merely provides that the existing legislations would require sector-specific system considerations, without mentioning the contours. More importantly, Mr. Nitin Gadkari, the Hon’ble Road Transport and Highway Minister, has explicitly declared that he shall not permit fully autonomous vehicles in India. Reason being AVs would lead to unemployment of lakhs of drivers and automotive workers. All these roadblocks make AVs a distant pipe dream in India.
Innovation and technology can be termed as a necessary evil to human progress. The game-changing abilities of AV technology have been discussed at length. On the downside, the transition into the driverless future would be laden with cultural, ethical, social and legal challenges. To develop comprehensive and fair legislations, central governments must collaborate with technology companies and automakers. As a starting point, reliance can be placed on recommendations of the U.S. DOT and the EU Parliamentary assembly, which propose for protecting and promoting core ethical principles of transparency, justice, responsibility, safety and privacy in all AI-related laws.
As for India, insurance, contract and motor vehicle legislations would need serious reconsideration. Furthermore, the country must work on its transport infrastructure besides gauging public interest. Inspiration can be taken from the models in the U.S. and UK to deal with the liability aspect. While employment concerns seem to be another major obstacle, technological advancements can be viewed as an alternative opening to more skilled jobs in the country. Notwithstanding government policy, manufacturers must continue harnessing AI, albeit responsibly.