Prosecuting Public Officials for their Mistakes

(This post first appeared on the Global Anticorruption Blog and has been cross-posted with permission)

In July 2011, Yingluck Shinawatra became Prime Minister of Thailand after her party (founded by her brother, former Prime Minister Thaksin Shinawatra) won a decisive electoral victory. One of her principal campaign promises was to establish a program to purchase rice from farmers at above-market prices then store the rice to reduce supply. The hope was that doing so would increase world prices—because of Thailand’s position as the leading global rice exporter—ultimately allowing the government to sell at a profit. Shortly after the election, Yingluck’s government implemented this program, and it worked well for a few months—until other global players increased their supply of rice, causing Thailand to lose billions of dollars in the process. This economic debacle was entirely predictable—and indeed was predicted by many experts. And the program itself was beset by allegations of fraud and corruption in its implementation.

But should the failure of the rice-buying program be the basis of a criminal charge of corruption and a prison sentence against Yingluck herself, in the absence of evidence that she was directly involved in any embezzlement, bribery, or other more conventional forms of graft? Section 157 of Thailand’s Penal Code allows for just such a prosecution, as this section makes it a crime for a public official to either dishonestly or “wrongfully discharge or omit to discharge a duty so as to expose any person to injury.” And last month, the Thai Supreme Court found Yingluck (out of power since she was deposed by a military coup in 2014) guilty and sentenced her to five years in prison. She fled the country before the verdict.

Thailand is not alone in adopting anticorruption laws that criminalize not only dishonest conduct (bribery, embezzlement, conflict of interest, etc.), but also negligence or incompetence. When India updated its anticorruption law in 1988, it added a new provision that makes it a criminal offense for a public official to “obtain for any person any valuable thing or pecuniary advantage without any public interest.” This broad offense was interpreted by a state High Court to not require any proof of dishonesty or criminal intent, and the Central Bureau of Investigation (India’s premier anticorruption agency) has routinely employed the provision in grand corruption cases to avoid the problem of having to prove corrupt intent. In perhaps the most high-profile such prosecution, the agency went after an ex-Prime Minister, Dr. Manmohan Singh. Dr. Singh was the Minister of Coal at a time when the Government decided to liberalize allocation of coal-blocks and to sell mining rights to private parties. In 2014, the Comptroller and Auditor General’s office reported the policy had caused losses worth billions of dollars because the rights had been sold for too little, through a process that was too ad hoc to be considered legal. Dr. Singh was subsequently charged under India’s broad law, though his trial has currently been stayed while his challenge to the constitutionality the law is pending before India’s Supreme Court. (There are clearly concerns in other quarters about the breadth of this statute: In 2016 a Select Committee of the Upper House of India’s Parliament submitted a report that suggested India eliminate this offense. Parliament hasn’t yet acted on this recommendation, but there are signs that it has some support.)

Is it appropriate to enact broad anticorruption laws that allow government officials to be convicted for dereliction of duty, acting in a manner contrary to the public interest, and the like? Anticorruption activists and prosecutors may find such statutes appealing: It is easier to secure convictions of elected officials who are suspected of corruption, but where it is too difficult to prove the specific intent necessary for traditional corruption offenses. But in fact these broad laws are likely to do more harm than good, and countries like Thailand and India would be better off without them. There are three main reasons for this:

• First, criminal prosecutions carry immense expressive value and signal to society that certain acts ought to be condemned. The message sent to society, when a court convicts a senior official for a policy failure absent any showing of dishonesty, is not likely to be that the government will not tolerate corruption, but rather that prosecutors and judges have broad power to jail leaders that they don’t like. This is only worsened by the inherently subjective nature of the crime in question. These prosecutions also blur the lines between genuinely dishonest conduct and policy mistakes, undermining the special condemnation that ought to be reserved for the former. On balance, even if prosecutions for dereliction of duty might enable prosecutors to convict leaders suspected of actual but unprovable graft, in the long term such prosecutions will only worsen the respect for rule of law in societies troubled by corruption in governance.
• Second, and connected to the first point, such broad offenses raise the very real risk of politically motivated prosecutions. In countries where voters are angry about corruption, politicians often stress increased anticorruption prosecutions to show their commitment to reform. What better way to show such commitment then by attacking the alleged corruption of the previous regime? And this is much easier to do when the prosecutors (influenced by the new government) need not actually prove dishonesty, but need only find some alleged failure to fulfill a duty, or some act not in the “public interest.” Not only are partisan witch-hunts contrary to the rule of law, they also don’t always make for sound cases, and can ultimately dilute both the strength of using the courts as an anticorruption force and the faith of the public in the integrity of the institutions of justice.
• Third, broad anticorruption laws that effectively criminalize negligence are likely to have an undesirable chilling effect on decision-making by public officials. When elected officials take bold moves they already run a risk of alienating their electorate and losing a re-election. Add to that the specter of eventual criminal liability once they’re out of office, and it officials are likely to become too timid to try anything even slightly bold or controversial. This fear of risk trickles down to any official tasked with implementing government policy.

To be sure, elected officials owe a duty to the citizenry to act in the public interest. If they fail to do so, and the failure can be proven to be due to dishonesty or greed, then more narrowly-drawn laws against bribery, embezzlement, and conflict of interest would apply. For serious errors that are made in good faith – or even in those cases where there’s suspicion of wrongdoing but it can’t be proved – there’s an alternative remedy already in place: elections. The political process is of course imperfect. Many Thais were likely frustrated that Yingluck didn’t seem to pay a serious political cost for the failure of the rice-buying scheme, and may have been relieved both by the coup that removed her from power and by her eventual conviction for dereliction of duty. But in the long term, the democratic process offers a better safeguard than allowing for politicians to be sent to jail for mistakes.

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.

Addendum

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.

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.