(c) Caroline Schupfer
(c) Caroline Schupfer

An accessory to felony – Uber in India

Amid streets littered with potential dangers, along with a patchy police protection framework – taking a cab home at night is a public necessity for women in India. Stripped of voice, they routinely suffer violence and multiple human rights violations. From forced prostitution and trafficking to eve-teasing and dowry extortion; being a woman in India can be gruelling. Products of poor education and a patriarchal social order which preaches male supremacy, male perceptions on women’s rights are often deleterious.

Despite numerous social movements fighting for the rights of women – for today’s India – gender equality remains a distant dream. Rape is a well-known and deep-rooted national problem. Yet, it often results in impunity the moment shame and reputation are mixed into the equation. Uber – built on a vision of deregulation and trust – therefore landed on rather perilous ground when it launched its UberX services on the land of prayers.

Home to majestic temples and enchanting traditions, India’s core is unfortunately also corroded by corruption, inequality and poverty. Its bright and dark aspects combined make it one of the most unique and fragile places in the world. But instead of having a culturally sensitive strategy, Uber’s aggressive, regulation-flouting, one-size-fits-all operating model – impinged on India’s emerging market without looking twice.

The Uber controversy

Uber makes up almost half of the global taxi industry, which is valued at around $100 billion.[i] Almost overnight, the smartphone app has become a monopoly power that has turned the taxi world topsy-turvy. Municipal bans, organised protests, lengthy lawsuits – so far all attempts to regulate the ride-hailing giant have proven fruitless.

In August 2013, the app-based taxi service set up shop on the crowded roads of India. Its first playground: the city of Bangalore. With feet firmly grounded in India’s Silicon Valley, the juggernaut didn’t stop there. In July 2014, it launched a countrywide rollout of UberX, the affordable and least regulated version of its service. One year later, swiftly engulfing another seven Indian cities, it officially increased its national presence to a total of 18.[ii] Unsurprisingly, India poses a very alluring playground for Uber – offering not only a market of 1.2 billion people with exploitable profit opportunities – but also a porous and malleable regulatory framework.

With everyone left in the dark about Uber’s intricacies, even less is is known about its operations in India. While Uber itself argues that it is a technology company ‘through and through’;[iii] the alternative argument is that it imitates taxi services and is thus, by the very nature of its operations, a transportation entity.

From beneath the veil of an app, the corporate giant conveniently shields itself from any form of responsibility and accountability. Both unregulated and unlicensed, it owns no cars, no insurance and therefore carries zero liability. Backed up by contractual arrangements, the classification of its drivers as independent contractors explicitly exempts Uber from any responsibility in relation to the vehicle, the driver and the passenger. Indeed, as per Uber’s Terms and Conditions,[iv]:

“Uber does not guarantee the quality, suitability, safety or ability of third party providers.”

Furthermore, “Uber shall not be liable of [any] damage, including…personal injury…related to…or otherwise resulting from any use of the services…”

Uber fares often undercut licensed cabs, which explains its popularity among consumers, who are often lured in by free rides. But why is Uber cheaper? Externalising all costs, they hire non-professional drivers that, more often than not, carry no commercial insurance. These independent freewheelers operate with almost zero supervision. Not subject to any inspections, these unvetted UberX drivers operate through unregistered personal vehicles which may fall short of internal safety measures. They are therefore able to cut many of the costs of a fully-licensed and regulated tax service. Essentially therefore, Uber opened the door to unregulated taxi markets in which citizens are able to compete with accredited taxi drivers without the associated costs and barriers to entry.

Ultimately, debate surrounding what Uber is, ends in a fight over definitions and interpretations – a classic exercise of futility. At its core however, Uber Technologies Inc. is a private enterprise built on an American ideology of a free-market economy. As the taxi industry is a public necessity, placing it the hand of a private company can never be wise. Indeed, there is something profoundly troubling about companies that do not play by the rules. While an abundance of red tape is undesirable, there are important reasons why certain services are licensed. In the taxi industry, the prevailing argument for regulation centres around the need for security. In its hot pursuit of growth, security does not seem to have been a priority for Uber, which was described as being the “modern day equivalent of electronic hitchhiking.[v]

Uber and India’s patriarchy: a toxic combination

Despite considerable progress in the past half-century, the path to gender empowerment in India has been barred by social evils. These handicaps – which are both structural and cultural – often manifest themselves in the violent victimisation of women. Across India, women’s voices are stifled and instances of sexual violence are depressingly common. The persisting stigma with regards to women’s rights was made shockingly visible in India’s daughter. This documentary, which pays tribute to the story of a 23-year-old medical student, victim of the fatal 2012 Delhi gang rape, unveiled a gut wrenching mentality that set off a firestorm of fury.

The sad truth is that many women continue to suffer abuse at the hands of the country’s patriarchal social order. Despite the constitutional guarantee of equality of sexes, the law remains largely unabsorbed in the collective thinking of Indian society. Rampant discrimination and systematic exploitation continues. The situation, however, is exacerbated by a legal system which is fundamentally perverse. For example, although the Marriage Act accepts that women are not a man’s property, inter-marital rape is not classified as a crime and therefore remains legal.[vi] In fact, the Criminal Law Bill is riddled with flaws, an obvious one being that the rape of a man or a transgender person is unaccounted for.[vii]

This law which permits inter-marital rape does not preserve marriage values but instead nurtures the thinking that men have a right to rape. In the words of Mukesh Singh, one of the convicts of the Delhi gang rape case, “When being raped, [a woman] shouldn’t fight back. She should just be silent and allow the rape.[viii]” Unfortunately, this noxious attitude is not an aberration but an attitude which is worryingly widespread.

(c) Caroline SchupferIn fact, it is mirrored by the high prevalence of intimate partner violence in India.[ix]. A study by the UNFPA brought to light a shocking attitude: more than 60% of Indian men interviewed admitted that they would resort to violence should their partner step out of her ‘traditional role.’[x] As Singh callously explained in India’s daughter, “You can’t clap with one hand; it takes two hands. A decent girl won’t roam around at 9 o’clock at night. A girl is far more responsible for rape than a boy.” Unfortunately, this attitude is one that is echoed through multiple social circles. To reiterate the words of Indian lawyer ML Sharma: “we have the best culture – in our culture, there is no space for a woman.[xi]

In a society that puts women second, regulation and safety should come first. Yet, to become an UberX driver, you only need to be over 21, own a 4-door car as well as have personal auto insurance. Drivers must also pass a police background check – though there are many reports that Uber’s background checks have failed to reveal drivers’ criminal history. In California alone, they are reported to have ‘hired’ drivers with convictions against them for crimes as grave as murder, sexual assault and child abuse.[xii] Despite concerns regarding the sufficiency of such checks, Uber maintains that taking fingerprints is too time-consuming and can cause delays in terms of getting the driver on the road.[xiii] While there are obvious concerns regarding the thoroughness of commercial background checks, the situation in India is exacerbated by the fact that police certificates are easily swindled.

The tragedy that followed thus came at no surprise: just a year after Uber’s launch in India, a young woman reported being raped by her driver, Shiv Kumar Yadav. Subsequent investigations unveiled alarming facts: Uber had not carried out background checks on Yadav, who obtained his driving license through forgery.[xiv] Uber did not take note of his residential address and also failed to register his vehicle as a cab.[xv] No GPS was installed in the vehicle he used.[xvi]

There is no denying that the unregulated nature of UberX services opens new avenues for sexual aggressors to prey upon potential victims. This window of opportunity for abuse is facilitated by the fact that drivers operate with negligible oversight. In every city in which Uber launches its operations, some of which are as large as Delhi with a population of nearly 20 million, it employs only 3 people.[xvii] From these 3 employees, only one is responsible for managing relationships with drivers. Although the team is expanded in the months following a launch, the overarching aim is to keep the employee count as low as possible – all whilst getting as many drivers as possible behind the wheel.

What the Uber case shows is that very little has changed since the 2012 Delhi gang rape which has caused a public outcry. India needs to end the culture of silence and impunity which exists in relation to sexual brutality. It needs to regulate itself before it can allow cities to be besieged by ruthless Western corporations.

Adverse impacts on human rights

Since the rapid rise of the global digital economy, the law has struggled to play catch up. Flagrantly exploiting legal loopholes, not only has Uber disregarded local regulations, but they have also failed to pay respect to the socio-cultural make-ups of the countries and cities they operate in.

Following the Uber rape incident, the ride-hailing company was barred from operating in Delhi. Operations resumed only a couple of weeks after when Uber declared it would tighten its security measures. Amongst other things, the ride-sharing app introduced new background checks for Delhi drivers, a number-masking feature, as well as an in-app SOS button.[xviii] Despite this, obvious loopholes remain. For example, Uber uses GPS tracking from phones. This technology can easily be switched off or discarded. The convicted rapist in the Uber case for example, only needed to switch off his phone in order to disappear off Uber’s radar.[xix]

Uber did not attempt to understand the fabric of societies into which it expanded. The 2012 Delhi gang rape inside a moving vehicle occurred only 9 months before Uber’s launch in India. This alone should have rung alarm bells. Arguably therefore, the security features came far too late. Of course, the existing risk was probably something Uber was more than aware of. But even if it was to repeat, they ensure that they have their back covered. As per Uber’s Terms and Conditions,[xx]:

“Uber shall not be liable of [any] damage, including…personal injury…even if Uber has been advised of the possibility of such damages.” [Emphasis added].

India is reportedly Uber’s largest market outside the United States. The corporation’s anticompetitive effects are not only harmful for women’s safety but also for the human rights situation in India as a whole. Something frequently overseen is that all money spent on Uber services is immediately remitted out of India. Thus, not only does Uber present unfair competition for local taxi companies who pay tax and licensing fees, but they also deprive governments of essential revenue. This is money that could be spent to further government’s ability to meet its obligations in relation to economic, social and cultural rights.

Conclusion

Since its inception in 2009, Uber has radically changed the taxi landscape in a way which will have long-lasting effects and problematic consequences. Beating drivers around the world, it has, in a whirlwind, become the industry’s biggest player. But is Uber in the best interest of the masses?

India needs to see sustainable, equitable and inclusive growth. Uber is not about innovation, nor it is about technology – it is symptomatic of the present globalisation era in which one category king keeps winning and monopolising over the rest of their competitors. The problems that flow from this are widely known to shatter portions of society. Ultimately however, it is always and far too often ordinary people that bear the brunt of the corporate sway. In this case, the women of India.

References

References

[i] Investopedia, (2015). Startup Analysis: How Much Is Uber Worth?. [online] Available at: http://www.investopedia.com/articles/markets/082015/startup-analysis-how-much-uber-worth.asp [Accessed 14 Oct. 2015].

[ii] Sugden, J. (2015). Uber Expanding to Seven More Cities in India. The Wall Street Journal. [online] Available at: http://www.wsj.com/articles/uber-to-expand-to-seven-more-cities-in-india-1435754806 [Accessed 14 Oct. 2015].

[iii]‘Uber’ hopes for talks with city of Ottawa over ride sharing. (2015). CTV News. [online] Available at: http://www.ctvnews.ca/video?clipId=462027&playlistId=1.2042104&binId=1.810401&playlistPageNum=1&binPageNum=1 [Accessed 14 Oct. 2015].

[iv] Uber B.V. Terms and Conditions. (2015). [online] (India). Available at: https://www.uber.com/legal/ind/terms [Accessed 14 Oct. 2015].

[v] Delhi Uber rape victim ends lawsuit against company in US court. (2015). Hindustan TImes. [online] Available at: http://www.hindustantimes.com/delhi/delhi-uber-rape-victim-ends-lawsuit-against-company-in-us-court/story-AVqUDwVanOwfffTlxcWSFJ.html [Accessed 14 Oct. 2015].

[vi] The Criminal Law (Amendment) Bill. (2013). [online] Available at: http://www.prsindia.org/uploads/media/Criminal%20Law,%202013/Criminal%20Law%20(A),%202013.pdf [Accessed 14 Oct. 2015].

[vii] Section 375, The Criminal Law (Amendment) Bill. (2013). [online] Available at: http://www.prsindia.org/uploads/media/Criminal%20Law,%202013/Criminal%20Law%20(A),%202013.pdf [Accessed 14 Oct. 2015].

[viii] Delhi rapist says victim shouldn’t have fought back. (2015). BBC. [online] Available at: http://www.bbc.com/news/magazine-31698154 [Accessed 14 Oct. 2015].

[ix] UNFPA, (2014). UNFPA-ICRW Study Deconstructs The Mind Of The ‘Masculine’ Indian Male. [online] Available at: http://www.icrw.org/media/press-releases/unfpa-press-release-unfpa-icrw-study-deconstructs-mind-%E2%80%98masculine%E2%80%99-indian-male [Accessed 14 Oct. 2015].

[x] UNFPA, (2014). UNFPA-ICRW Study Deconstructs The Mind Of The ‘Masculine’ Indian Male. [online] Available at: http://www.icrw.org/media/press-releases/unfpa-press-release-unfpa-icrw-study-deconstructs-mind-%E2%80%98masculine%E2%80%99-indian-male [Accessed 14 Oct. 2015].

[xi] Defence lawyers blame Nirbhaya for rape. (2015). The Times of India. [online] Available at: http://timesofindia.indiatimes.com/india/Defence-lawyers-blame-Nirbhaya-for-rape/articleshow/46451407.cms [Accessed 14 Oct. 2015].

[xii] Uber background checks missed drivers’ criminal records, prosecutors say. (2015). Cnet. [online] Available at: http://www.cnet.com/news/uber-background-checks-missed-drivers-criminal-records-prosecutors-say/ [Accessed 14 Oct. 2015].

[xiii] Uber background checks missed drivers’ criminal records, prosecutors say. (2015). Cnet. [online] Available at: http://www.cnet.com/news/uber-background-checks-missed-drivers-criminal-records-prosecutors-say/ [Accessed 14 Oct. 2015].

[xiv] Uber driver Shiv Kumar Yadav tells cops he’s raped many women. (2015). The Times of India. [online] Available at: http://timesofindia.indiatimes.com/city/delhi/Uber-driver-Shiv-Kumar-Yadav-tells-cops-hes-raped-many-women/articleshow/45483698.cms [Accessed 14 Oct. 2015].

[xv] 5 Places Where Uber Is Fighting for Its Life Right Now. (2014). Time. [online] Available at: http://time.com/3623241/uber-battles/ [Accessed 14 Oct. 2015].

[xvi] Uber Banned in Delhi, CEO Travis Kalanick Suggests Authorities Partly to Blame: 10 Developments. (2014). NDTV. [online] Available at: http://www.ndtv.com/cheat-sheet/uber-banned-in-delhi-ceo-travis-kalanick-suggests-authorities-partly-to-blame-10-developments-710331 [Accessed 14 Oct. 2015].

[xvii] Taxi-hailing app Uber employs just 3 persons in each city to run operations. (2015). The Economic Times. [online] Available at: http://articles.economictimes.indiatimes.com/2014-07-29/news/52186700_1_taxi-hailing-app-uber-operations-taxi-drivers [Accessed 14 Oct. 2015].

[xviii] After Ola Cabs, Uber India adds Number Masking to keep customer phone numbers nameless. (2015). PC-Tablet. [online] Available at: http://www.pc-tablet.co.in/2015/09/27/15144/uber-india-adds-number-masking-customer-phone-numbers-anonymous/ [Accessed 14 Oct. 2015].

[xix] Uber Banned in Delhi, CEO Travis Kalanick Suggests Authorities Partly to Blame: 10 Developments. (2014). NDTV. [online] Available at: http://www.ndtv.com/cheat-sheet/uber-banned-in-delhi-ceo-travis-kalanick-suggests-authorities-partly-to-blame-10-developments-710331 [Accessed 14 Oct. 2015].

[xx] Uber B.V. Terms and Conditions. (2015). [online] (India). Available at: https://www.uber.com/legal/ind/terms [Accessed 14 Oct. 2015].

About Caroline Schupfer

Caroline Schupfer is a Law with French graduate from the University of Sheffield. She is a member of the Human Rights Committee at the Montréal Holocaust Memorial Centre and a volunteer at Projets Autochtones du Québec, a non-profit organisation which provides social and professional development services to aboriginal communities. Her research interests centre around transitional justice, green criminology and the protection of vulnerable groups.

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