A Futuristic Problem In Need Of A Modern Solution

Adithya Prasad

When considering the sustenance of the right to live in the realm of human rights, article 21 under the Indian constitution poses a potential problem.

The problem? The future.

No matter what essentialists say, the future is going to be automated and computer-controlled for the most part. A sad but pragmatic deficiency that is compensated against the cost of evolution.

Therefore, the law is always challenged with an interesting challenge, its primary function of flexibility remains its greatest foe which masks itself with different identities as society changes. Artificial intelligence, also known as the future of humanity, poses interesting questions to law and jurisprudence, the front of all remains the fundamental asking,

“Can AI be granted the right to life?”

Often avoided, to risk a philosophical argument on the concept of life and its place among humanity, we therefore must become better. We must prepare the law for what is to come, can the law in all its cast jurisprudence see AI as a living, breathing entity with a consciousness of its own? If not today then when? This article will seek to answer the following:

  1. The concept of ‘person’
  2. Do non-humans have the capacity to experience the right to life?
  3. What does the future look like?

The right to life, conferred under article 21 of the Indian Constitution reads:

“No person shall be deprived of his life or personal liberty except according to procedure established by law[1].

We immediately observe the problem that jurisprudence must answer, the concept of ‘person’. It wasn’t and isn’t uncommon for jurisprudence to see the ‘person’ beyond the definition of a human person. Greek and Roman jurisprudence has seen historical instances where non-persons were tried for the acts or the lack thereof against humans giving them the status of a “person”[2].

Person, derived from the Latin word ‘persona’ meaning, those who have been recognized by the law as being able to convince, comprehend and are capable of being bound by legal duties with the capacity to exercise their legal rights.

De persona et duabus naturis” – An Individual is the substance of a rational nature[3], being able to comprehend rationality of situation and through life in general. Boethius in his works defined that a person was defined through the substance that he possessed. Calling it the first substance or the concrete substance that existed within every individual and the second substance which referred to the genus and species of that person.

This was later corrected and defined deeper by St. Thomas Aquinas. He believed and taught through his works that the concept of ‘individual substance’ is co-dependent, where a person creates different substances that subsist each other[4][5][6]. He included 5 principles, that he believed were to be carried by every person to classify them as such:

  1. They must have substance
  2. A complete nature
  3. The person exists for themselves, being the ultimate actor for his nature
  4. Separated from other persons
  5. Having the capacity to behave with a rational nature[7]

What is clear from many early philosophers, theologists and even political thinkers, is that the concept of a person can be differentiated by the concept of substance. Though an abstract concept, it seems that the human race can reason whether there is that substance in a particular person given that the substance shows itself.

We are our tests for personhood[8]

Indian jurisprudence through legal fiction defines personality as something that the law can consider real. Indian law sees two people, a legal person, one that has a real existence under the eyes of the laws despite having a false personality and a natural person, one who has both the real personality and the admission under the eyes of the law.

Natural Person

  1. A natural person is a human being and is a real and living person.
  2. He has characteristics of the power of thought speech and choice.
  3. An unborn, dead man and lower animals are not considered natural persons.
  4. The layman does not recognize companies, corporations, idols etc. as persons.
  5. He is also a legal person and accordingly performs their functions 6. A natural person can live for a limited period i.e., he cannot live more than 100 years.

Legal Person

  1. A legal person is being, real or imaginary whom the law regards as capable of rights or duties. 2. Legal persons are also termed “fictitious”, “juristic”, “artificial” or “moral”.
  2. In law, idiots, dead men, unborn persons, corporations, companies, idols, etc. are treated as legal persons.
  3. The legal persons perform their functions through natural persons only.
  4. There are different varieties of legal persons, viz. Corporations, Companies, Universities, President, Societies, Municipalities, Gram panchayats, etc.
  5. A legal person can live indefinitely.[9]

In 2010, the United States Supreme Court passed a judgement that many legal scholars describe as a victory for legal person rights. The decision in Citizens United v. Federal Election Committee[10]. The free speech rights of corporations by holding that it is unconstitutional to prohibit legal persons from engaging in election expenditures and electioneering.

While critics see this ruling as tantamount to allowing corporate-sponsored candidates in the future, proponents argue that it is unfair to grant legal personality that grants equal responsibilities but not equal rights.[11]

In June 2019, the Punjab and Haryana High court has accorded the status of a ‘legal person or entity to animals under its jurisdiction thereby granting them the corresponding rights, duties and liabilities of that of a living person.

The presiding verdict read “The animals should be healthy, comfortable, well-nourished, safe, able to express innate behaviour without pain, fear and distress. They are entitled to justice. The animals cannot be treated as objects or property[12]

A simple way to define a person would be according to Gray’s definition –

“a person is an entity to which rights and duties may be attributed”

The concept of person, through the ages, has seen earned its recognition in jurisprudence and general philosophy as an idea that is possessed by a being that has the capacity to think, rationalize and work in a manner expected of a living entity. Now the question remains,

Does the concept of person, natural and/or legal have the ability to allow AI?

Can an AI avail the rights, duties, and defences of a person?

In the famous TV show Star Trek, the next generations, the cast features a unique character to that of this article. Data, the sentient android who join the starship enterprise for its many voyages, is often posed with the same question. Whether a created, that is an android can be on par with a creator. The show, through its creators, believed that the key to the classification of personhood in all its rights and duties would be the concept of sentience, the feeling or sensation as distinguished from perception and thought.

We must therefore try to define under jurisprudence, the very nature of AI. A definition that seeks to make understand the concept, scope, and capacity of AI for now and its distant future.

“It is the science and engineering of making intelligent machines, especially intelligent computer programs. It is related to the similar task of using computers to understand human intelligence, but AI does not have to confine itself to methods that are biologically observable”. – John McCarthy, computer science department at Stanford University (2004)[13]

John McCarthy, in his interview also spoke, “The ultimate effort is to make computer programs that can solve problems and achieve goals in the world as well as humans”. The scientific community is geared towards making some form of AI that has the potential to aid and in some cases, replace human intervention where it needs to be. This can be seen across a wide variety of industries, from the Watson AI for legal industries to the first robot to be offered citizenship being Sophia. The continued evolution of computer science begs legal and philosophical thinkers to be ready for the future.

A major criticism faced during the integration of Sophia into the Saudi Arabian citizenry from the international community was the ethical and social mindsets that were not ready, satisfied or in some cases even threatened to accept a created machine as an equal citizen[14]. However, Sophia has the rights such as self-determination[15], right to work, right to residency and movement and other such rights that would normally be available to only a human candidate. The right to self-determination elevates Sophia from under the creators to being equal to the creators thereby granting her an equal pedestal.

Going by the concept of a person’s definition, artificial intelligence in the current modern-day has been able to satisfy what one would call the need for substance in a person. Just like a baby, whether it be a human, animal or even a plant sapling, the proof of personhood lay in the substance of that entity.

Sophia for example has been able to learn many human nuances, learnt to play games, crack jokes not always in the best taste and has in effect claimed substance that defines personhood. Another famous example for proving the concept of machine learning to that of a child can be the experiments of Boston dynamics.

The company is famous for its renowned presentation on advanced robotics and machine learning AI. The company’s creation has seen military training induction to prepare young cadets for the future of conflict, through machines and computers[16]. The present may look easy for distinguishment, that robots and other forms of AI are not yet ready to hold the mantle of what it takes to be a person in the eyes of any living entity. That doesn’t disregard the future, where the physical manifestation of AI is on par with that of a human person in substance, essence, and role towards society.

In the case of Munn v. the State of Illinois, the US Court referred to the observation of Justice Field, wherein he stated that by the term ‘life’ as here used something more is meant than a mere animal existence. Thus, it embraces within itself not only the physical existence but also the quality of life. It was the first case on the definition of the word ‘LIFE’[17].

The culmination of all this can be that as of modern-day scenario, an AI can be considered to be a legal person. One that can be held accountable through a guardianship relationship, the guardian being the creator of the programme itself. This is understood in the pragmatic sense, that the creator or guardian of a particular person/ property must be held liable in the event it cannot be borne by the entity itself.

The future, however, is treading on lines unsure. It is no secret that at the rate at which we are evolving as humans, AI will be a major integration into our lives. It is common to hear that machine will be able to think, rationalize, conceptualize and even replace humans in many areas. At this point, legal persons would be the right title to go to.

In the event that the future does see sentient AI, where technology can differentiate between perception and emotion, classify on thought, instinct and consciousness, its own actions and duties that is required. Then in such a future, sentience demands the right to life be granted. Since article 21[18], confers the right to life to only natural persons[19][20], in its scope, AI cannot be considered to enjoy or even exercise the rights under such a provision. However, it is a legal person who can still be considered to act and be held liable for all action caused by or to it.

“All sentient beings should have at least one right, the right to not be treated as property” ­– Gary L Francione.

About The Author

Adithya Prasad is a 3rd-year business law student from The St. Joseph’s College of Law, Bengaluru. Heavily interested in Jurisprudence and other contemporary interpretations of law, he seeks to find newer incarnations of law that can and will come about. He sees himself as an international lawyer for business and an author, writing about the philosophy, history and evolution of law through creative storytelling, moral dilemmas and recounting of real historical events.

Photo Source: Digital Trends


    India Const. art. 21 

  2. Walter Woodburn Hyde. “The Prosecution of Lifeless Things and Animals in Greek Law: Part II.” The American Journal of Philology, vol. 38, no. 3, 1917, pp. 285–303. JSTOR, www.jstor.org/stable/289426. (last visited on 25th July, 2021). 

  3. ch. 3; Patrologia Latina, ed. J. P. Migne, 271 v., indexes 4 v. [Paris 1878–90] 64:1345 

  4. Summa theologiae 3a, 16.12 ad 2 

  5. m. j. adler, ed., The Great Ideas: A Syntopicon of Great Books of the Western World, 2 v. (Chicago 1952); v. 2, 3 of Great Books of the Western World 2:1–41. r. eisler, Wörterbuch der philosophischen Begriffe, 3 v. (4th ed. Berlin 1927–30) 2:393–401. l. w. geddes, The Catholic Encyclopedia, ed. c. g. herbermann et al., 16 v. (New York 1907–14) 11:726–727. l. stefanini 

  6. Enciclopedia filosofica, 4 v. (Venice-Rome 1957) 3:1297–1304. c. de koninck, De la primauté du bien commun (Quebec 1943). j. maritain, The Person and the Common Good, tr. j. j. fitzgerald (New York 1947). r. guardini, Welt und Person (Würzburg 1940). m. deandrea, Praelectiones metaphysica, v. 2 (Rome 1957). j. b. metz, Christliche Anthropozentrik (Munich 1962). 

  7. Person (in Philosophy), ENCYCLOPEDIA.COM, (last visited on 25th July, 2021), Person (In Philosophy) | Encyclopedia.com

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  9. Manishranjan, meaning and kind of person, LEGAL SERVICES INDIA, (last visited on 25th July, 2021), Meaning and Kind of Person (legalservicesindia.com) 

  10. Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) 

  11. Manishranjan, meaning and kind of person, LEGAL SERVICES INDIA, (last visited on 25th July, 2021), Meaning and Kind of Person (legalservicesindia.com) 

  12. Karnail Singh and others Vs State of Haryana, CRR-533-2013 

  13. whatisai.dvi (unimi.it) 

  14. World’s first robot citizen attends conference in India: makers reveal Sophia can draw now, THE ECONOMIC TIMES, (last visited on 25th July, 2021), World’s first robot citizen attends conference in India; makers reveal Sophia can draw now (indiatimes.com) 

  15. Robert David hart, Saudi Arabia;s robot citizen is eroding human rights, QUARTZ, (last visited on 25th July, 2021), Saudi Arabia’s Sophia robot is eroding human rights — Quartz (qz.com) 

  16. James Vincent, The French army is testing Boston dynamics’ robot dog for spot in combat scenarios, THE VERGE, (last visited on 25th July, 2021), The French army is testing Boston Dynamics’ robot dog Spot in combat scenarios – The Verge 

  17. Munn v. State of Illinois, 94 U.S. 113 (1876) 

  18. Sneha Mahawar, life, liberty and privacy under article 21 of the Constitution of India, 1949, IPLEADERS, (last visited on 25th July 2021), Life, liberty, and privacy under Article 21 of the Constitution of India, 1949 – iPleaders 

  19. Shivangi Sinha, Top 13 judgements on article 21: “right to life and personal liberty, IPLEADERS, (last visited on 25th July 2021), Right to life – Top 13 judgement which shaped Article 21 (ipleaders.in) 

  20. Shruthi Singh, Ambit of article 21 under Indian Constitution, IPLEADERS, (last visited on: 25th July 2021), Article 21: Explanation of Ambit and Scope of Article 21 under Constitution (ipleaders.in) 

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