Author: Mahak Jain and UPES
Linkedin Profile: https://www.linkedin.com/in/mahak-jain-26b874249/
To the point
The idea of gig workers remains entangled in legal nebulosity. Despite having legal recognition in the new labour canons of India, the law on Social Security 2020, the law governing continues to deny the core protection and benefits to gig workers, like a minimum wage, collective bargaining, and social security, etc. The law provides only a double distinction between workers and independent contractors. With a rapid-fire increase in the platform and gig workers, millions have entered into a new employment form, frequently performing tasks under strict platform control, governed by algorithms and conditions, yet they’re denied core labour protections. This picky addition results in a protection gap, where gig workers are visible to the law but unnoticeable to its benefits. The bracket securities companies from legal liability while placing workers in a legal limbo — not workers, yet not truly independent. The composition argues that this structural misclassification is ‘t just a nonsupervisory oversight but a deliberate strategy that undermines indigenous guarantees of equivalency, quality, and livelihood.
Abstract
The emergence and rapid expansion of the gig economy in India, driven by technology-based platforms such as Uber, Swiggy, Zomato, and Urban Company, has disrupted traditional employment relationships and exposed significant gaps in the existing labour law regime. Gig workers, often referred to as independent contractors, operate in a legal limbo where they are excluded from the statutory protections afforded to formal employees under Indian labour laws. While these workers are crucial to the daily operations and profit models of digital platforms, they lack access to fundamental rights such as minimum wages, social security, occupational safety, paid leave, and the right to collective bargaining.
The Code on Social Security, 2020, is the first legislative effort in India to recognise gig and platform workers as a distinct category. However, it does little beyond recognition, offering benefits that are discretionary and heavily dependent on executive implementation. The absence of a clear employment relationship allows platforms to evade employer liabilities, shifting all risks onto workers under the guise of flexibility and entrepreneurship. This structural exclusion not only undermines worker welfare but also raises constitutional concerns regarding equality, dignity, and the right to livelihood under Articles 14, 21, and 23 of the Indian Constitution.
This article critically evaluates the legal status of gig workers in India by examining existing legislative frameworks, constitutional provisions, and global jurisprudence. It argues that the current legal framework reflects a deliberate deregulatory strategy that prioritises platform growth over labour rights. Through an analysis of employment tests such as the control test, economic dependency, and the integration test, alongside relevant international case law and ILO standards, the paper calls for a paradigm shift in how employment is defined in the digital age. It concludes by recommending urgent judicial and legislative reforms to provide meaningful and enforceable rights to India’s growing gig workforce.
Legal Jargon
The bracket of gig workers in India presents a significant jurisprudential challenge due to their rejection from the traditional employer- hand relationship as understood in labour law. Under the Social Security Code, 2020, gig workers and platform workers are defined as distinct orders who operate outside conventional contract of service arrangements. Still, the control test, integration test, and profitable reliance test are used to determine employment connections, suggesting that platform workers parade characteristics harmonious with de facto employment, despite being labelled as independent contractors. This misclassification strategically circumvents cores under statutory legislations like the Minimum Stipend Act, Employees’ Provident Fund Act, and the Industrial Disputes Act, thereby denying workers the capability to pierce statutory entitlements, grievance redressal mechanisms, and collaborative logrolling rights. Likewise, this model entrenches a precarious employment form of work marked by instability, lack of protection, and absence of social safety nets that leads to raising indigenous enterprises under Articles 14, 19( 1)( c), and 21 of the Indian Constitution. The result is a growing pool trapped in a legal lacuna, where they’re subject to algorithmic control but devoid of legal remedies generally reserved for regular workers.
The Proof
The uncertain legal position of gig workers in India is stressed by the titles of the Social Security Code, 2020, which acknowledges gig and platform workers but doesn’t extend to them basic labour protections. These workers are barred from crucial legislations like the Factories Act, 1948, the Minimum Stipend Act, 1948, and the Industrial Disputes Act, 1947, which regulate employment terms, stipend, and dispute resolution for traditional workers. Although platforms classify gig workers as independent contractors, their work is largely controlled by algorithms, performance conditions, and unilaterally assessed contract terms, demonstrating a position of control akin to an employer- hand relationship. The purported “ inflexibility ” frequently touted conceals the essential power imbalance, as gig workers warrant genuine logrolling power and the freedom generally associated with independent contracts. Also, the Social Security Code lacks robust enforcement mechanisms to ensure platform benefits to welfare schemes, rendering its benefits more aspirational than practical. In comparison, countries like the United Kingdom( through the Uber BV v Aslam ruling) and the European Union( via the 2022 platform work directive) have made strides to fairly ftreat ig workers as entitled to statutory protections. In contrast, India’s current legal framework creates a separate order for gig workers without guaranteeing original rights, immortalizing a gap in labour regulation that favors platform interests over worker protections.
Case Laws
Uber BV v Aslam( UK Supreme Court, 2021)
This corner case unnaturally reshaped the legal understanding of gig workers’ status in the United Kingdom. The Court held that Uber motorists, despite contracts labelling them as independent contractors, were in fact “ workers ” under UK labour law. The judgment emphasized the degree of control exercised by Uber, particularly through its algorithmic operation system, setting fares, assigning lifts, and covering performance. This case is vital because it rejects the formal contractual marker and looks at the substance of the working relationship, setting a precedent for classifying gig workers as entitled to minimum wages, vacation pay, and other statutory protections. The ruling also stressed the power imbalance between platforms and workers, challenging the narrative of complete worker autonomy.
Ola taxicabs v Inspector of Labour( Pending in Indian courts)
While not yet conclusively decided, this ongoing action raises important questions about the employment status of motorists working with Ola, one of India’s largest ride-hailing platforms. The case examines whether Ola’s motorists fall within the dimension of traditional labour laws or remain outside as independent contractors. Its outgrowth could significantly impact Indian justice by either affirming the platform’s limited liability or extending labour protections to gig workers, therefore setting an important precedent in India’s evolving gig frugality geography.
National Union of Rail, Maritime and Transport Workers v United Kingdom( European Court of Human Rights)
This decision corroborated the right of non-traditional workers, including gig workers, to organise and unionise under the protection of Article 11 of the European Convention on Human Rights. It acknowledges that, despite the non-standard nature of their work, platform and gig workers are entitled to basic labour rights, including collective bargaining. This case underscores the transnational moral rights perspective on labour protections and informs the debate on gig workers’ rights in India.
Air India Statutory Corporation v United Labour Union( 1997, Supreme Court of India)
In this seminal ruling, the Supreme Court of India honored the right to livelihood and quality of labour as essential aspects of Article 21( right to life) of the Constitution. Although not directly related to gig workers, this case establishes an indigenous foundation for extending protections to workers in all sectors, including informal and gig employment, emphasizing the state’s duty to ensure fair working conditions.
Daily Rated Casual Labour v Union of India( 1988, Supreme Court of India)
This case corroborated the principle that courts should prioritize the substance over the form of employment connections when determining worker status. It advocates looking beyond written contracts to the factual nature of work and reliance. This principle i pivotal in assessing gig workers’ rights, as formal contracts frequently label them as independent contractors, while their working conditions demonstrate profitable dependence and control typical of workers.
Conclusion
India’s labour law framework remains ill-equipped to address the unique challenges posed by the gig economy. While the Social Security Code, 2020, marks a significant step by formally recognising gig and platform workers, it stops short of granting them the abecedarian rights and protections guaranteed to traditional workers. This results in an incongruity where gig workers are fairly visible but virtually vulnerable, barred from minimum wages, social security, and collective bargaining mechanisms essential for securing their livelihood and quality. The continuity of this legal vacuum perpetuates precarious employment conditions, undermining the indigenous guarantees under Articles 14( equivalency before law), 19( 1)( c)( freedom of association), and 21( right to life and livelihood). The current frame boons the functional inflexibility of platforms at the expense of worker security and socio-profitable justice. In conclusion, reforming labour laws to adequately cover gig workers isn’t only a legal necessity but an indigenous imperative to uphold the quality of millions engaged in this emerging sector. The time has come for legislative and judicial activism to close this nonsupervisory gap and secure decent labour rights for India’s gig pool.
FAQS
Q1. Are gig workers considered workers under Indian law?
No. Gig workers aren’t classified as “ workers ” under traditional labour bills like the Industrial Controversies Act or the Factories Act. The Social Security Code, 2020, recognises them independently but without granting full employment rights.
Q2. Can gig workers unionise or go on strike?
Fairly nebulous. They aren’t covered by laws similar to the Trade Unions Act, 1926, or the Industrial Disputes Act, making their right to collaborative action uncertain.
Q3. Does the Social Security Code, 2020 give any benefits to gig workers?
Yes, but only in principle. It proposes social security schemes(like insurance or welfare finances), but lacks clarity on backing, perpetration, and enforceability.
Q4. What reforms are being suggested?
Scholars and policy experts recommend :
Enabling collaborative logrolling rights.
Icing obligatory benefits from platforms to the well-financed.
References:
The Code on Social Security, 2020
https://labour.gov.in/sites/default/files/SS_Code_Gazette.pdf
Minimum Wages Act, 1948 (Now the Code on Wages, 2019)
Factories Act, 1948
Industrial Disputes Act, 1947
Indian Constitution: Article 14, Article 19(1)(c), Article 21, Article 23
https://legalserviceindia.com/legal/article-15854-case-study-on-gig-workers-uber-bv-v-s-aslam-2021-uksc-5.html#:~:text=case%2C%20finding%20unanimously%20in%20favor,to%20worker%20rights%20and%20protections
https://hudoc.echr.coe.int/eng?i=001-142192
https://indiankanoon.org/doc/40640/
https://indiankanoon.org/doc/176622/#:~:text=Their%20principal%20complaint%20was%20that,the%20equivalent%20categories%20and%2C%20secondly
https://www.ilo.org/global/publications/books/WCMS_645337/lang–en/index.htm
