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April 24, 2017

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A Case Of Technology Being Disrupted?


- Sanjay Gupta, Partner [ Bhasin & Co, Advocates ]

sanjayguptaadvocate

Technology is known to cause disruption of established businesses. However, the recent agitation by Uber and Ola Cab drivers which was waiting to happen for quite some time may disrupt technology. India is the second country after the United Kingdom in the world which would now be compelled to resolve the tussle between technology and labor. It is often said that technology trumps the law as a number of techno issues arise from the fact that the existing laws are not synced with evergrowing technology.

At the outset, it may be puzzling as to how the protest by Cab drivers for minimum wages in any manner is related to technology? It has been the stand of Uber Technologies before the Employment Tribunal in UK 1 that it was a technology firm not a transport business and that its drivers were independent and self-employed contractors who were free to choose where and when they worked. The Judges however viewed the arguments of Uber with skepticism and observed that the firm "resorting in its documentation to fictions, twisted language and even brand new terminology" and summed up by referring to Queen Gertrude's quote "The lady doth protest too much, methinks2." The Employment Tribunal rebuffed the arguments of Uber that it is only the technology provider (Cab aggregator) and does not control the drivers who are “self-employed”. The Judgment by the Employment Tribunal was hailed by drivers as they were guaranteed minimum service conditions; however, the question remained on the viability of business models where companies were using technology-based applications for the benefit of the public at large. The present agitation is only the tip of the iceberg waiting to explode as there has been a mushrooming of app-based aggregators; be it in food, transportation, housing, etc. The aggregators like Airbnb and Stayzilla, etc. may also face similar kind of protests.

Absence of unambiguous labor laws and whether the traditional interpretation given to the said laws by the Court would be able to keep up with technology are some of the burning questions which concern the aggregators and start- ups. There are also concerns about the applicability of labor laws on "Self Controlled" and "Self-employed" workers who may be working under somebody’s umbrella but still control their own activities. Law will never be able to catch up with technology as development and progress of each is at uncontrollably contrasting velocities. We all know that law takes not only its own course but also moves at its own pace. In the year 1960, Gorden Moore, Co-founder of Intel, predicted about exponential rise of integrated circuits that the number of transistors that could fit on a chip. Moore's prediction was his foresight for the rapid growth in technology in near future which has been accurate till date. Supreme Court back in year 2006 in the matter of State of Punjab versus Amritsar Beverages Limited3 made very pertinent observations (in the context of Sales Tax Act 1948 but principles laid down can guide future legislations and decisions of Courts). It held that:

"The Act was enacted in the year 1948. Information Technology at that time far from being developed was unknown. Constitution of India is a living organ. It had been interpreted differently having regard to different societal situations. [See Liverpool & London S.P. & I Association Ltd. v. M.V. Sea Success I and Another, (2004) 9 SCC 512, Union of India v. Naveen Jindal and Another, (2004) 2 SCC 510, John Vallamattom and Another v. Union of India, (2003) 6 SCC 1, and Kapila Hingorani v. State of Bihar, (2003) 6 SCC 1] Same principle is applicable in respect of some statutes.

Creative interpretation had been resorted to by the Court so as to achieve a balance between age old and rigid laws on the one hand and advanced technology, on the other. The Judiciary always responds to the need of the changing scenario in regard to development of technologies. It uses its own interpretative principles to achieve a balance when Parliament has not responded to the need to amend the statute having regard to the developments in the field of science.”

However, the courts should be able to shed their inherent conservatism and be able to decide the cases within reasonable timeframe before the technology becomes obsolete. The first case concerning technology in work place was decided in "City of Ontario, California Versus Quon" a case decided in the year 2010 that addressed the question of privacy rights to the messages on the pagers given to the Police officers by their employers – pager technology by 2010 had already become obsolete.

The ongoing agitation cannot be brushed away as it has the potential of disrupting technology and consequently, economic business models. It is important that the Parliament carries out amendments in labor laws imbibing technology-related issues and at the same time, the Courts should endeavor to strike a balance between the grant of minimum service conditions and growing technology.

Footnote:
1. https://www.judiciary.gov.uk.
2. "The lady doth protest too much, methinks" is a quotation from the c. 1600 play Hamlet by William Shakespeare. It has been used as a figure of speech, in various phrasings, to describe someone's overly frequent and vehement attempts to convince others of some matter of which the opposite is true, thereby making themselves appear defensive and insincere.[not verified in body] In rhetorical terms, the phrase can be thought of as indicating an unintentional apophasis—where the speaker who "protests too much" in favor of some assertion puts into others' minds the idea that the assertion is false, something that they may not have considered before.
3. 2006(7)SCC607.

Disclaimer – The views expressed in this article are the personal views of the author and are purely informative in nature.

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