Tuesday, December 9, 2014

Banning Uber: Responsibily, Negligence and Criminal Liability

Another night, another ghastly incident of violence against women in India's capital. A lady hailed a cab using the Uber App to take her home at night. She had dozed off on the way, only to be woken up by the driver who allegedly raped her and threatened her with death if she screamed or resisted in any manner. An FIR was immediately filed at P.S. Sarai Rohilla in Delhi and investigation is underway following which a man has been arrested and is in police custody at the moment. 

But what about Uber, the app-service using which the cab was hired. Is there any criminal liability for its apparent negligence? 

Understanding Uber and Responsibility
"Responsibility" can mean a variety of things, a point well argued by HLA Hart in his collection of essays entitled Punishment and Responsibility [2nd edition available here]. He presented four distinct classes of responsibility: (1) role-responsibility, (2) causal-responsibility, (3) liability-responsibility, and (4) capacity-responsibility [pages 211-212]. 

Uber is an app which "connects riders with drivers". It does not own taxis or hires drivers as employees. Rather, it invite drivers to sign up and in this manner Uber provides a network of vehicles in every city where it operates. Such a model reduces initial investment and helps earn greater profits. So, as a customer, Uber is how I get access to a particular car and driver. I assume that the service (cab provided) is safe, and this is not by looking at the cab itself but by having used Uber to hire it. The responsibility to provide a safe vehicle flows from its role. 

An important analogy, I think, can be offered. Think of Uber as another Buyer-Seller platform like eBay. The platform invites sellers to become part of its network, and subsequently is able to offer customers a wide range of products for sale. Customers, then, assume some guarantee of quality because the product is on eBay

From Responsibility to Liability 
A liability for failing to discharge this responsibility arises due to the contractual relationships created between parties. Uber would offer compensation if the cab doesn't arrive, or is a faulty vehicle. eBay, similarly, offers compensation where the product sold is broken etc. This liability flows from the role-responsibility that we first established for the service provider. What if the driver assaults you, or as in this case, (allegedly) rapes you, or obscene/illegal products are being sold online. To prevent these situations, the service provider is required to conduct background checks. For Uber, this entails maintaining driver profiles to ensure quality. eBay, similarly, maintains filters to block listings of illegal/obscene products.

But even though there are such checks, negligence may often creep in. You might have guessed what I'm leading up to. Famously now, in 2004 eBay - then Baazee.com - suffered such a case of negligence with respect to listing for sale allegedly obscene material (an MMS video of minors engaging in sexual activity) [The trial is ongoing in Delhi at present. For more facts, read the Delhi High Court judgment quashing charges against one of the Accused]. What this incident did reveal, was the absence of any regulatory framework creating duties and liabilities upon intermediaries in those situations. 

There was no legal requirement at the time for eBay to immediately remove the listing. Today, if an intermediary fails to act within 36 hours it can be liable under the 2011 Intermediary Guidelines. Currently, a similar lacuna is present with respect to the liability of such intermediaries in the private taxi market. The driver checks run by Uber are not a legal mandate, but internal company policy. The liability to enforce such a policy is vastly different from the idea of liability attracted by breaking a legal rule.

Criminal Liability for Uber?
Can there be criminal liability for negligence, or recklessness? Absolutely. Criminal liability ordinarily depends upon existence a culpable mental state. This mental state was denoted as mens rea at the common law and determined by judges. But in India it is determined by how an offence is defined by statute. Uber, and other service providers, can certainly be held liable for being negligent and failing to discharge their duty of care where the law so provides. Currently though, these opportunities are limited [see, Section 304-A, IPC].

Could Uber be made liable for the acts of drivers? Such vicarious liability in criminal law was uncommon. It also offends principle: the culpable mental state of an actor is imputed to a third party. However, such an imposition of liability today is fairly common in socio-economic offences. Statutes contain "offences by companies", where for an offence committed by the company, specific officers are made vicariously liable owing to their position of responsibility [see, Section 138 & 141, Negotiable Instruments Act].

In the case currently being reported, Uber cannot be held criminally liable for their alleged failure to conduct sufficient background checks on the concerned driver. As already mentioned, there are no legal rules requiring such checks in the first place. With respect to the specific offence, rape, again no case is possible. Vicarious liability for rape is not provided for, nor is negligence a culpable mental state to fulfil the conditions Section 375 IPC which defines rape. 

It will be highly interesting to see if a criminal case is filed against the company. In the meanwhile, let us hope the legislators plug the gap this horrendous incident has brought to the nation's attention.


  1. There will be some bad things for all good changes. Uber is a premium cab service, now operating in various Indian cities. This is fully equipped with GPRS and camera, Drivers too know that they are monitoring by Ubers offices. I think they should tight their security more.
    Taxi Dispatch Systems

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