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Monday, October 25, 2021

Being SMART, after Uber

India cannot be policed with 19th century laws and mindsets.

Written by Abhinav Kumar |
Updated: December 12, 2014 1:05:02 am
The demand for prosecuting Uber and banning it and other services is misplaced and probably bad in law. Vicarious liability for criminal acts may be emotionally appealing but it is a legal and ethical minefield. The demand for prosecuting Uber and banning it and other services is misplaced and probably bad in law. Vicarious liability for criminal acts may be emotionally appealing but it is a legal and ethical minefield.

The nationwide outrage over the gruesome December 16, 2012, case was barely a fading memory when the shocking alleged rape of a young executive by a taxi driver working with Uber stirred our collective conscience and brought the issue of women’s safety into sharp focus again. As a police officer, and the father of a teenage daughter, this is an issue of intense professional and personal concern for me. Coming as it does just days after the prime minister, at a meeting in Guwahati, exhorted the police leadership to embrace the mantra of SMART policing (strict and sensitive; modern and mobile; alert and accountable; reliable and responsive; trained and techno-savvy), it is clear that the gap between public expectations and ground realities couldn’t possibly be wider than it is today. How to move to SMART policing in the age of Uber is a challenge that will vex the police leadership for the foreseeable future. India of the 21st century, an urbanising India, with greater gender equality and lesser deference to caste and communal faultlines, refuses to be policed by laws of the 19th century or by mindsets and tactics that go back even further. The gauntlet has been thrown down. It’s time for us in the IPS and the various organisations we lead to prove equal to the challenge.

There is a very real sense of public outrage over these two incidents, less than two years apart, and a somewhat less real but more relentless hysteria whipped up on electronic media to do “something”, a typical response to important public policy issues in our society. Delhi Police responded to the December 16 case by practically shutting down the night life of the city as well as issuing advisories to women about wearing “proper” clothes and avoiding unsafe places. This time, we have responded by shutting down Uber and other similar services, as well as by slapping a criminal case against the company for alleged laxity in verification of its partner-drivers. The case has also, once again, focused the spotlight on the glaring shortcomings in our basic transportation safety regulatory systems. Despite computerisation, driving licences continue to be available through touts and the system of background checks and police verification stands exposed as perfunctory. The blame game and the clamour to do something are likely to go on for a while. In this charged atmosphere, it is difficult to make practical and sensible suggestions without being denounced as a reactionary or a loony liberal. But for the sake of my daughter and millions of girls like her, who deserve to feel equally safe as the boys of their generation, we must not give up.

First, let us look at the demand for more stringent rape laws, with stiffer punishment and stricter bail conditions. Are we arguing that rape accused be subject to a different type of due process or that due process be abandoned altogether in such cases? I fear that the public discourse is dangerously veering in that direction. Our laws on rape are broadly aligned with those of other countries. We do lag behind in defining marital rape, but not in defining rape or in quantifying punishment. Thinking that making our laws stricter or less even-handed would eliminate rape is a dangerous fantasy that our leaders and opinionmakers are doing precious little to discredit. Mandatory death penalty for rapists, as suggested by some activists, is simply reactionary nonsense that has no place in a liberal democratic society. Many talk of the immense psychological and physical trauma as well as social stigma faced by victims to justify the death penalty. This argument needs to be tackled and taken apart for its obscurantism. There is simply no evidence that the death penalty is a deterrent for any type of crime.

In a civilised society that treats both genders equally, the trauma of a rape victim of either gender would merit equal treatment. It would not be accorded less or greater attention than the trauma of victims of other types of grievous bodily harm. What tilts our judgement in favour of greater punishment for rape is the social stigma victims face, itself a construct steeped in history and culture. In an enlightened society, any kind of violation of the body would primarily be judged by its immediate physical severity and its long-term consequences, irrespective of gender. This can be achieved only by encouraging victims of rape and their families to step out of the shadows and speak confidently and openly about their experiences. In their long-term interests, the social and legal veil of silence and shame that surrounds rape victims today needs to be lifted. Then, perhaps, we would be better able to address the systemic shortcomings due to which rape victims are repeatedly failed.

On the enforcement side, the Uber case is a great opportunity to identify the gaps in the system and move to an era of genuinely SMART policing. But this requires civil society to take time off from candle marches and agitations and work in close partnership with the police leadership. Our police policies need to be grounded in research and scholarship, not based on anecdotal evidence or sensational cases. We need our universities and think tanks to come forward with innovative ideas, drive research in these areas. Having more women in uniform manning our police stations and patrolling our streets is an intervention that needs to be made urgently. I would also argue for greater scrutiny of the psychological profiles of rapists to understand their motivations. This could lead to more effective preemptive interventions. We still don’t have a nationwide database of criminals, both convicts and accused, that would make police verification an effective process. What began as the Crime and Criminal Information System mutated into the Common Integrated Police Application, now crawling along as the Crime and Criminal Tracking Network and Systems. One hopes that this flagship project is completed soon so that future victims are spared from predators who escaped our antiquated procedures for verification.

Lastly, the demand for prosecuting Uber and banning it and other services is misplaced and probably bad in law. Vicarious liability for criminal acts may be emotionally appealing but it is a legal and ethical minefield. Traditional taxi service providers have every reason to oppose Uber, but their track record on passenger safety is equally bad, if not worse. It goes to show that our regulatory and enforcement systems are simply incapable of engaging with cutting-edge technology in a meaningful manner. Banning Uber is not the answer, a more purposeful commitment to SMART policing within a liberal democratic framework is the only way to move ahead.

The writer is an IPS officer. Views are personal

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