Wednesday, December 10, 2014

And an FIR is registered against Uber + Addendum

I just read news items suggesting that an FIR under Section 420 IPC has been registered by the Delhi Police against Uber, for its role in the recent alleged rape incident in Delhi. Some murmurs are also being heard about possible criminal liability for its negligence, and possible abetment of the crime by the driver. 

Abetting the Driver?
The latter can be dismissed earlier, partly for reasons already discussed in the last post. With respect to abetment, a reference to Section 107 IPC would settle the dust. Abetment, by definition, requires one to do something. This may be anything from goading someone on towards commission of an offence, to staying silent when they offence is being committed. The crucial part is my intention/knowledge at that time must reveal that I helped the offence occur. If, at that time I do not know about the offence, it is impossible to say that I am abetting its commission.

Think about it this way. A sells a gun, which is subsequently used to commit murder. This does not mean A abetted murder, even though it occurred mainly because of the sale. If it were otherwise, a lot of local shopkeepers may be in jail for no other reason than for doing their business. Such imposition of criminal liability offends the idea that there must some culpable mental state accompanying the act/illegal omission [see, on this point, A.P. Simester, 'The Mental Element in Complicity' 122 Law Quarterly Review 578-601 (2006)]. This is recognised in Section 107 as well, where crucially the Section says that a person may abet by intentionally aiding, by way of an act or illegal omission.

Cheating the Customers?
Uber has allegedly been cheating customers in representing that they were providing safe commutes with verified drivers, while they failed to conduct the necessary background checks under law. The cheating charges shouldn't stick at all though. Uber in its terms of service never guarantees third-party (driver) suitability. They don't offer you the safe ride. The Police earlier this week admitted to not knowing at all about Uber, and its clear they need to do their homework thoroughly. 

Assume, though that the charge for cheating can stick. Two questions then arise: (1) can a company be liable for cheating and other crimes requiring intent? (2) would the requirements of cheating be satisfied? Both are rather premature, but important nonetheless.

On (1), the question was settled by the Supreme Court in Iridum India Telecom v. Motorola Inc. A company can be guilty of cheating, and the mental element necessary can be derived by turning to the directing mind and will of the company, those who are responsible for its control. So, if the directors at Uber can be pinned with the intent, so can the company.

(2), is a harder question, simply because there is so little information currently available. Ex facie though, I think a cheating case is difficult to sustain. The mental element required for cheating is intention, not negligence. To say that the company intentionally didn't conduct background checks seems to go against the current case, where there is agreement on this being corporate negligence.

This helps me to go back to some points I made in the previous post, with respect to the law on these background checks. The news is repeatedly referring to alleged failures by Uber and other app-based cab companies in conducting background checks as the clinching proof of their criminal negligence. There are two leading allegations here: (1) absence of a PSV Badge, and (2) not fitting vehicles with GPS. 

(1) PSV Badge: Allegedly the driver didn't have a PSV (Public Service Vehicle) Badge and Uber didn't care to check and constituted a breach of Rule 6 of the Delhi Motor Vehicle Rules 1993. I read the Rules, and guess what, there is no criminal liability created therein and a breach of Rule 6 does not even carry a penalty

(2): Vehicles without GPS: The Uber cabs supposedly didn't have a GPS, which enabled the driver to switch off his phone and disappear. This non-fitting of GPS was improper. With what? The Terms and Conditions of the "Radio Taxi Scheme 2006"  issued by the Transport Department of Delhi. The validity of this statutory instrument notwithstanding, it does not create any liability whatsoever for breach of terms. The license granted to Uber may be revoked, and that's it.

My point stands. A thorough reassessment of the legislative scheme behind taxi operators is needed, and fast.

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