The tragic rape of a girl in an Uber cab triggered the usual tryst with unreality. The Delhi Government’s Transport Department immediately ‘banned’ internet cab aggregators- including Uber, Taxi-for-Sure and Ola- from operating in Delhi. Meanwhile, Delhi Police registered an FIR against Uber for misleading customers by falsely suggesting that they perform background checks on their drivers.Given the alternatives modes of transport we have, what explains this truly extraordinary response of the authorities?
Let’s talk about banning first. The police banned dark film on car windows because girls were molested in it. They don’t ban cloth curtains which were quite the rage when I was a boy. Both curtains and solar film are better than wedging newspapers on the insides of car windows on sunny days, as many ladies with sensitive skins do. There is no law against wedged newspapers though it’s just as good for molesting girls. Banning rarely makes sense. Girls get molested in homes too but no law forces people to live only in glass houses. Of course, we are not talking dark film here: we are talking about banning the whole cab. No one banned buses after the frightening Nirbhaya rape case.
What is the consequence of this decision? I have a daughter aged 23. She and her friends use Uber at night. I worry about this. They feel it’s the best option out there. Their other choices are Radio cabs or the Kaali-Peeli cabs from under the Banyan tree at the edge of the colony. The girls don’t like Radio cabs. They are way more expensive and besides, there aren’t enough to go around. You can order one, but you are pretty likely to be ditched at the last moment. With the Kaali-Peeli, what you see is what you get but what you get is not worth having. The good news is that both Radio and Kaali-Peeli cabs are regulated. The bad news is the regulations add up to very little. Very briefly, to run a Kaali-Peeli, the driver needs a commercial licence and police verification, Full Stop. There is no training and no other meaningful rules. To run a Radio cab, the operator is a registered entity who co-opts drivers. The drivers need proof of residence, commercial insurance and a commercial driving licence. The operator verifies the driver’s documents, whatever that means. The driver gets some training but mainly in how to use the radio in the radio cab.
This brings us to internet based cab aggregators like Ola, Uber and Taxi-for-Sure. These service providers are completely unregulated because no one thought they needed regulation. Presumably, rules that apply to an individual running a taxi generally apply to them. This makes perfect sense. Uber, Ola, etc are not taxi companies. They don’t have any taxis. They are a variation of classified advertisement: like AirBnB, or EBay or Amazon or Jabong or Flipkart. You want an IPhone 5S? Some guy called Speedy Gizmos lists a good bargain on Flipkart. You want shoes? WS Retail is listing them on Jabong. You want an apartment for a week in Edinburgh? Various owners and property managers are listing them on AirBnB and Bookings.com. You want a cab? Uber has one on its list for you. These guys just help you find a cab, that’s all. Of exactly what are Flipkart, AirBnB, Amazon, Jabong or Uber guilty if the guy who delivers your phone, shoes, apartment or cab throws in molestation? I’d say the Delhi Police’s response isn’t legally sound.
This explains why the Delhi Police can do no better than file an FIR premised only on false representation to customers. Legally, that is pretty thin. Even I know better than that. Uber is making a claim they can’t possibly execute in Indian conditions. I’d say Uber does background checks on its drivers like Colgate stops bad breath and fights tooth decay. Is there anyone with a toothache out there who used Colgate? Do you feel like filing an FIR today? Courts in India have repeatedly approved of marketing hype as street legal. Then again, the internet is awash with derisive stories about Uber’s background checks. Google it! There’s this amusing story about the guy who beat the procedure by simply ‘sharing’ a taxi account with several people. It’s amusing because we all love the underdog who beats “the system”, and in America too.
The fact remains that if you order an Uber cab, they respond to your request by giving you the number of the incoming cab. You probably don’t pay too much attention because your main concern is the model of the car you are getting: is it an Indica or an Audi for the same price? Uber checks that the car doesn’t smell of unwashed underwear, because that is what you really care about. You are unlikely to ask if the driver has a postgraduate degree in cryogenics and the morals of Bhisham Pitamaha! It doesn’t matter who they say the driver is. Very likely, the driver is a substitute because the main guy went off duty after 12 hours at 8 pm. You aren’t likely checking his ID in the middle of the night before getting into the cab. You’ve maybe had one vodka too many and you just want to go home. If you do ask, the driver will doubtless claim that he is the same Ram Kumar listed with Uber. Getting two driving licences for two Ram Kumars isn’t that hard. You don’t have the skill to judge if his ID is real or faked.
At worst, what Uber deals with is no worse than the Kaali-Peeli cabs. Most cabs you pick up at Delhi Airport are owned by wealthy taxi fleet owners. The drivers rent the cars by the day. Ditto Three Wheelers. Wealthy taxi fleet owners have a practical problem. Drivers are a restless lot: this is why they are drivers. They like the rootlessness, the constant movement. It’s psychological. The drivers don’t own cars. The owners take on the drivers they can get. The drivers do the molesting. What am I accused of if my chowkidar rapes someone? You may say I will be liable for what my chowkidar does unless I follow a bunch of rules. I could live with that, but you have to make the rule that tells me what to do. Till you have those rules, you can’t be registering FIRs against cab aggregating companies because they haven’t followed a rule you haven’t made.
Think about this: what Uber does on the internet is no different from what the Taxi counter does at IGI International Airport New Delhi. That counter has no regulatory guidelines either, and for the same reason that Uber doesn’t. I’ve never heard of counter personnel at IGI Airport suffering FIRs against them for something a cab driver did.
In the circumstances, I am amazed at the heat being generated about driver background checks. Even if you do make a rule about background checks, what will it really mean? I run a law firm. You can make a law compelling me to do a background check on the court clerks I hire. So I hire this guy and ask for a background check. He gives me his dad’s name, village address, adhaar card and wonders of wonders, a character certificate from the local police. Now what do you want me to do? Is there somewhere I can go cross check if each of these certificates is faked? Point me to that place please.
As a lawyer, it is my experience that a lot of bureaucratic procedures require you to get first class magistrate stamps and police certificates. As a father, it is my experience that you need these sorts of things even to apply for school and college admissions. Where are you going to get one? Can you go to a court, send in your business card and have the magistrate entertain you, chat you up and satisfy himself that you tell the truth? If he doesn’t personally know you, what is he capable of certifying you for? Is he ever going to personally know every driving licence holding villager fresh off the bus from Jharkhand with ambitions of being a driver for Uber? Yet, thousands of such certificates are being minted every day. How does it work? It’s simple. You go to the local court and you approach a tout outside the magistrate’s office. He quotes you a price and produces a document in 6 hours. You don’t know if it’s real. You don’t care. No one does. Everyone understands this is mindless ass-covering bureaucracy. What makes Uber different?
The accused in the Uber rape case had a character certificate. The police now claim it was “faked”. What does “faked” mean: that neither Uber nor the driver personally witnessed the authorised signatory signing it? By that criterion, they are all faked. And where was the certificate faked? It was faked inside a police office. It has authentic stamps and signatures and names. Yes the authorised signatory had been transferred out a while back but which Mathura resident villager has the skill or network to source out official transfer letters and verify the authenticity of certificates? Does Uber have that capacity? Do I need to file an RTI every time a new court clerk I hire brings me a certificate?
The Delhi police is the first to acknowledge the enormous difficulty of verifying anyone or his character. Drivers and domestic workers are mostly migrants. The police can’t be doing Bharat Darshans verifying thousands of maids here for just a year before the parents marry them off back home to the local landless peasant. Drivers move between cities a lot too. Delhi Police have a lot of VIPs to protect. Delhi has one cop per 253 people but 47,557 cops protect 14,842 VIPs i.e three cops per VIP. It’s not that Delhi Police loves this VIP protection racket. They have no choice. They have to rely on state police for maid and driver verifications. The state police is equally busy protecting their VIPs.
The truth is that if you want individual verification, your best bet is a centralised human data capture and management tool. It won’t be fool proof, but it will come close. This means you need a national level unified ID like Adhaar where everyone’s entire life will be on a hard drive somewhere. If you do this, you will have huge issues around privacy, confidentiality, data ownership, data security and so forth. In a PIL filed by retired Karnataka High Court judge Justice KS Puttaswamy and retired Additional Director General, Discipline and Vigilance, Maj Gen (retd) SG Vombatkere, the Supreme Court held on March 23, 2014 that the Adhaar card could not be made mandatory.That put an end to fool-proof background checks.
More’s the pity because forget about background checks, we have a mountain to climb in order only to secure that people driving cars actually have valid driving licenses. You can get a driving license for the price of a tout at the regional transport office. The doctor issuing a certificate there checks that your hands and vision are good. No one check your morals or your jail record because there is nowhere to check. There was no irony in the statement Uber CEO Travis Kalanick issued: “We will work with the government to establish clear background checks currently absent in their commercial transportation licensing programs.” The emphasis supplied here is entirely mine. He is being brutal with the truth but this is one of several long term fixes we need to implement.
When you get past the anger management and the angst, it comes down to the same old song: we are a country unfocussed on governance, rules or their enforcement. If we want to protect our women, other than changing our collective attitude, it’s the rules and their implementation that we need to fix. If we make sensible enforceable rules, people will comply and our women will be safer.