The current trend and enthusiasm of growing technological innovations in India shows that the emerging era of autonomous vehicles in the country is inevitable. This adour amongst the people in the country promotes, attracts and gives market to such technological advancements, thus enthusing manufacturing companies around the globe.

The intersection of law and artificial intelligence poses important questions that are going to shape the future of our collective existence. The derivative question here is – what mechanism of protection can we use for our safe co-existence with artificial intelligence technology? 

The pros and cons

When people refer to autonomous vehicles, they are largely pointing to technology that exists within each car, which allows it to read its surroundings and make driving decisions based on those readings. This answers to an extent the epistemological question – can autonomous vehicles ‘think’?

Whether the introduction of autonomous vehicles would make life simpler or harder is to be looked upon. Like all other technological advancements, this one too has its pros and cons.

Autonomous automobile technology is capable of narrowing the scope of fatal accidents. The reasons for road accidents can mainly be categorised into human error, condition or environment and vehicular condition. According to 2017 data presented by India’s Ministry of Road Transport and Highways, 82.9% accidents are caused due to human error. Further, the technology will increase the mobility of person with disabilities, elderly persons, and the likes.

Google self-driving car | Photo: Steve Jurvetson, Wikimedia Commons

On the other hand, the technology will fuel unemployment by way of eating up the jobs of drivers. Not only this, the development is capable of creating fear of much higher magnitude risks, such as cyber-attacks, attached to ‘networked’ cars.

According to former General Motors Chairman, Bob Lutz:

“The autonomous car doesn’t drink, doesn’t do drugs, doesn’t text while driving, and doesn’t get road rage. Autonomous cars don’t race other autonomous cars, and they don’t go to sleep.”

According to one news report, around 20 companies were developing self-driving cars in 2016, but today this statistical data may vary due to steeply rising demand of the market to shift to driverless vehicles in the paradigm of autonomous vehicles. But danger arising as a consequence of accidents from driverless vehicles has potential to wipe out the vision of autonomous vehicles capturing widespread consumer use.

Also read ‘Health Wearables Can Threaten Right To Privacy, but India Is Drafting New Laws To Protect User Data

Today, the challenge before India’s legislature is to give legal recognition to autonomous vehicles from top to bottom – from licensing, trial, taking out on to the road – and accidents caused by such cars. Amongst all this, what is tedious and the deciding factor of success ratio of autonomous vehicle is how far we are able to manage the adverse effects, such as accidents.

The question of liability

The selling point vis-à-vis the attracting feature of autonomous vehicle is that it works without human intervention. Novel liability issues have arisen due to specimens of accidents between manual cars and autonomous cars. The several instances of accidents arising out of autonomous vehicles in foreign countries alert and show the need to expedite the process of apropos law making.

Some recent instances of incidents involving autonomous cars are: Google car accident in the month of February 2016; accident from Tesla’s Model S in the month of May, 2016; the very first lawsuit filed against the car manufacturer (General Motors) which involves the features of an autonomous vehicles; Arizona pedestrian death incident in the month of March, 2017; and the latest accident caused by Tesla’s autopilot car in the month of March 2019. 

So who can be held liable to pay for accidents caused due to delinquent technology?

A self driving Volvo XC90 by Uber seen in San Francisco. | Photo: Wikimedia Commons

Currently, India does not have any effective or efficient provisions in law to address such questions within the Motor Vehicles (Amendment) Act, 2019 and the Central Motor Vehicles Rules, 1989. There is a No-Fault liability clause in the 2019 law that caters to cases of death or permanent disabilities caused to the victims and holds the car owner liable, it cannot be a panacea to all types of accidents as it fails to take into consideration minor accidents and injuries caused to the occupant of the car and non-intervention of human beings while driving. This would unjustly makes the car owner an unwitting victim of substandard laws.

Therefore, who has to wear the crown of liability can be decided amongst the probable liability holders: 

  1. No-One: It is an acceptable fact at the outset that every ‘wrong’ is not necessarily punishable as a crime or considered as a civil wrong. Only those wrongs which the law recognises and are made punishable. This Carte Blanche feature seems viable only till we do not have befitting laws, prominently because of the reason of disruptive nature and capability of such technology to endanger the very existence of denizens.

    More importantly, this option can be heavily abused as it is devoid of protecting the interest of the person who suffers injuries or death because of the accident. Not only this, it also gives humongous autonomy to the car manufacturer, as he may misuse this power by not internalising the expected (accident) cost, and therefore, gives a wrong incentive to the manufacturer. Fundamentally, it is capable of acting as a traumatising gamut, and may hold back consumers from buying and using such vehicles.
  2. The manufacturer: Shifting of liability onto the car manufacturer seems to be a viable option in the present scenario. It means inclusion of cases where the car manufacturer is not at fault, as it is assumed that the car manufacturer is in best position to avoid and control the car accident. One of the most crucial aspects of modern law jurisprudence in terms of consumer rights framework was laid down by Lord Atkin in the case of Donoghue v. Stevenson, [(1932) UKHL 100] in which he stated that: “You must take care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”

    But the strict liability on car manufacturer has a shortcoming: it ignores the activity level of the car owner. After all, the plausibility of accidents also depends on the activity level. Now the probable solutions to it could be attaching a degree of liability on the car owner alongside the manufacturer based on the activity profile of the car owner. For example, the activity level of the car will always vary from a tourism company and a household person.

    The car manufacturer may also be held liable under Consumer Protection Act, 2019. The terms ‘defect’ and ‘product liability’ are very categorically and comprehensively defined under Sections 2(10) and 2(34) of the Act, hence making the car manufacturer liable if the accident is caused due to delinquent technology.

    Likewise, while handling the issue of failure of airbags, India’s National Consumer Disputes Redressal Commission (NCDRC) has given much emphasis on proof of manufacturing defect while awarding compensation to the complainants as observed in the cases of CG Power & Industrial Solution Limited and ors. v. Mercedes Benz India Private Limited and Ors. and M/s. Toyota Kirloskar Motors Pvt. Ltd. and ors. v. Tirath singh Oberoi.

    The inclusion of provisions of Consumer Protection Act, 2019 poses another set of questions, whether to consider autonomous vehicles as a separate legal entity or continue treating them as traditional cars, that is consider them as goods and services under the law. Particularly referring to the controversies of treating them as ‘humans’ (giving legal entity status), that is, giving them a right to acquire property, conclude contract and others or giving them the status of ‘Corporate Personhood.’
  1. Artificial Intelligence (AI) producer: The question of liability of AI producer arises only if they are different from car manufacturer. In such situations, it would be difficult to distill out the cause of accident because of the complex technology. Depending on whether the accidents occurred because of lapses on the part of the AI producer or the car manufacturer itself, then the burden of liability can be decided accordingly.
  2. The vehicle owner: There exists very less chances of making the car owner liable for the reason of delinquent technology until and unless the car owner owed a duty of care and s/he failed to comply with those duty thereof. According to the ‘principles of negligence’ laid down by the High Court of Kerala in the case of Minor Veeran v. T.V. Krishnamurthy, that the tort of Negligence entails: (A) The defendant owed a duty of care to the plaintiff; (B) The defendant made a breach of that duty; and (C) The Plaintiff suffered damage as a consequence thereof.
  3. The car itself: Since the ancient times, right from the period of Dharamashastaras, law was made to handle disputes between men and men. Fundamentally, law was made by men, for men. Even if we take the example of Information Technology (Amendment) Act, 2008, which involves the component of technology, the legal battle is between men and men. But today, the situation is so peculiar that laws that are capable of handling conflicts between men and technology are needed. It is time to decide whether it is reasonable to consider autonomous vehicles as ‘humans’ and give them legal entity status.

Total rejection is a missed opportunity

The development of advanced technology in the form of artificial intelligence poses a possibility of acting as a traumatising agent due to lack of laws. Times have changed, at least technologically. As a consequence, laws are required to adapt themselves to the new generation.

While addressing such problems, we may face some odd consequences, such as a situation to deal with the question of imposing criminal liability on cars. There are instances where the car manufacturer has promised to take the responsibility of actions of their self-driving cars, therefore making an addition to the marketing technique. Volvo is a case-in-point here.

The au fait personalities with AI in the legal industry have engaged them to address ramifications arising out of such delinquent technology. It is high time for us to come up with transcendent solutions and address such problems to fully prepare for eventualities.

The Government of India may ban autonomous vehicles before they come in action as per the recent statement made by Nitin Gadkari, the Union Minister of Road Transport and Highways: “We won’t allow any technology that takes away jobs.” 

Here, what is not taken into consideration by government is the benefits which the country will reap from autonomous vehicles. Therefore, autonomous vehicles are both a necessity as well as likelihood if development has to be endured.

According to the Ministry of Road Transport and Highways, around 150,000 people were killed in road accidents in 2017, and there were around five lakh reported accidents. These could come down with the introduction of autonomous vehicles. Further, as stated earlier, autonomous vehicles would provide mobility to person with disabilities and senior citizens.

The success of the autonomous vehicle will depend on how well we are prepared to adapt and cope with the whole technology.

Views expressed are the author’s own.