1. Abstract

The gig economy in India has grown at a remarkable pace over the last decade, with platforms like Swiggy, Zomato, and Uber now employing millions of workers in conditions that sit uneasily between employment and self-employment.

This paper examines the legal position of gig workers in India, with a focus on whether existing labour legislation adequately protects them.

• The definitional treatment of gig workers under the Code on Social Security, 2020
• The gaps left open by the four Labour Codes
• The constitutional framework that could support stronger protections
• The judicial tools that Indian courts have developed to look past contractual labels

The paper concludes that the current framework recognises gig workers in name but offers them little meaningful protection, and argues for a targeted legislative intervention that gives this growing workforce access to minimum wages, social security, and protection against arbitrary termination.

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Introduction

In 2022, delivery workers affiliated with Swiggy and Zomato staged protests in cities across India demanding minimum wage protections, accident insurance, and some form of job security.

The platforms responded with a position that has become familiar: these workers are not employees but independent contractors, free agents who choose when and how to work.

This paper is an attempt to test that claim against the law.

India’s Gig Workforce Statistics

India’s gig workforce is estimated at over 7.7 million and is projected to cross 23.5 million by 2030, according to NITI Aayog’s 2022 report on the gig economy.

The people in these numbers deliver food in the rain, drive strangers to airports at odd hours, and keep the urban service economy running.

Yet most of them have no access to the protections that Indian labour law has built over decades no minimum wage guarantee, no provident fund, no protection against sudden deactivation.

Structure of the Article

This article is structured as follows.

Part	Content Description
Part III	Introduces the structure of gig work and the specific working conditions on India’s major platforms
Part IV	Examines the legal framework, particularly the Code on Social Security, 2020 and the four Labour Codes
Part V	Looks at the constitutional basis for reform
Part VI	Addresses how courts determine employment status
Part VII	Identifies the key vulnerabilities of gig workers
Part VIII	Covers the Rajasthan Platform-Based Gig Workers Act, 2023 as a State-level experiment
Parts IX – XII	Summary of arguments, the author’s opinion, a future outlook, and a conclusion

3. The Gig Economy: What It Is and How It Works in India

3.1 The Basic Model:

A gig economy is one where work is organised around discrete tasks rather than ongoing employment relationships. A delivery worker does not have a contract of employment with Swiggy; she has a series of contracts for individual deliveries. The platform sits in between it matches the worker to the task, sets the price, controls the interface through which the service is delivered, and collects the data generated by each transaction.

Platforms like Swiggy, Zomato, and Uber describe themselves as technology companies, not service providers. In their telling, they are software intermediaries connecting buyers and sellers; the delivery worker is an independent business who happens to use their app. This characterisation has a purpose: it keeps the worker outside the employer-employee framework and the platform outside the reach of labour legislation.

3.2 Working Conditions On Indian Platforms

The practical reality of gig work on Indian platforms looks quite different from the independent contractor narrative. A few key features are worth noting:

• Pay rates are set unilaterally by the platform and can be revised without the worker’s consent. Delivery workers on Swiggy and Zomato typically earn between Rs. 15,000 and Rs. 25,000 per month before deducting fuel, maintenance, and data costs amounts that frequently fall below state minimum wage rates for the actual hours worked.
• Workers are required to maintain a minimum order acceptance rate. Falling below this threshold leads to ‘deactivation’ the platform’s term for what is functionally a dismissal without notice or a hearing.
• Routes are allocated by the algorithm. The worker has no meaningful discretion over which orders to take once logged into the system during peak hours, nor over delivery sequencing.
• Ratings assigned by customers determine access to work. A worker whose rating falls below a platform-set threshold finds herself effectively locked out of the system.
• The platform sets the code of conduct that governs interactions with restaurants and customers. Violations can result in immediate deactivation.

These features unilateral pay-setting, performance monitoring, behavioural control, and the power to terminate access are the hallmarks of an employment relationship. The contract says otherwise, but the operational reality tells a different story.

4. The Legal Framework: What The Law Says And What It Misses

4.1 Pre-Codification Labour Law:

Before the four Labour Codes were enacted, Indian labour law comprised over 40 central statutes. Most of them the Industrial Disputes Act, 1947, the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952, the Employees’ State Insurance Act, 1948, the Payment of Gratuity Act, 1972 were built around a model of factory or establishment-based employment. The central concept in each was the employer-employee relationship, evidenced by a contract of service, wage payment, and the employer’s right to control the manner of work.

Gig workers, classified as independent contractors by the platforms, fell outside this framework entirely. They were not ‘workmen’ under the Industrial Disputes Act, not ’employees’ under the ESI Act, and not eligible for provident fund contributions or gratuity. The law was not designed with them in mind.

4.2 The Code On Social Security, 2020:

The Code on Social Security, 2020 is the first piece of central legislation to formally recognise gig workers. Section 2(35) defines a ‘gig worker’ as a person who performs work or participates in a work arrangement outside of a traditional employer-employee relationship. Section 2(61) defines a ‘platform worker’ as someone who accesses organisations or individuals through online platforms to provide services. Sections 113 to 115 provide for a Social Security Fund for gig and platform workers, to be financed by contributions from the Central Government, State Governments, and aggregators.

This recognition is significant in principle. But the Code has several serious limitations:

• Gig workers are not recognised as ’employees’ under the Code. Their recognition is confined to the social security chapter. Minimum wage provisions, gratuity, and industrial dispute mechanisms remain out of reach.
• The quantum of the aggregator’s contribution to the Social Security Fund has not been specified. It is left entirely to executive rule-making, which has not yet happened.
• The social security provisions of the CSS 2020 have not been brought into force. As of 2024, they remain unnotified, making the recognition largely theoretical.
• Gig workers are excluded from the definition of ’employee’ under the Code on Wages, 2019, meaning minimum wage protections do not apply.

4.3 The Four Labour Codes And Their Gaps:

The four Labour Codes the Code on Wages, 2019; the Industrial Relations Code, 2020; the Code on Social Security, 2020; and the Occupational Safety, Health and Working Conditions Code, 2020 consolidated 29 central statutes. Their treatment of gig work is fragmented and inadequate:

Labour Code	Gap Identified
Industrial Relations Code, 2020	Gig workers cannot raise industrial disputes or engage in statutory collective bargaining.
Occupational Safety, Health and Working Conditions Code, 2020	Does not extend protections to gig workers.
Code on Wages, 2019	Does not cover independent contractors or platform workers under minimum wage.
Code on Social Security, 2020	Only partially recognises gig workers; provisions remain unimplemented.

5. The Constitutional Framework

The Constitution offers several potential bases for gig worker protection, even in the absence of legislative action.

• Article 21: which guarantees the right to life and personal liberty, has been interpreted by the Supreme Court to include the right to livelihood. In Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545, the Court held that the right to life encompasses the right to earn a livelihood, since depriving a person of livelihood amounts to depriving them of life itself. The sudden deactivation of a gig worker’s account without notice, without reason, without recourse directly threatens this right. Where a platform commands near-monopoly power in a given market, the argument becomes even stronger.
• Directive Principles of State Policy:
  • Article 39(a): Ensures adequate means of livelihood.
  • Article 41: Right to work.
  • Article 42: Just and humane working conditions.
  • Article 43: Living wage.
  Though non-justiciable, these provisions have been used repeatedly by courts to give a purposive interpretation to labour legislation. In Consumer Education and Research Centre v. Union of India, (1995) 3 SCC 42, the Supreme Court held that the right to health and social security are part of Article 21, drawing directly on the Directive Principles.
• Article 14: the right to equality, may also be engaged. The differential treatment of gig workers who perform functions identical to regular employees but are denied equivalent protections could constitute an arbitrary and unreasonable classification, particularly where no legitimate purpose is served beyond reducing the employer’s labour costs.

6. Determining Employment Status: How Indian Courts Approach the Question

6.1 The Control Test:

The foundational test for determining whether someone is an employee or an independent contractor in Indian law is the ‘control test.’ The question is whether the hirer retains the right to control not just what the worker does, but how they do it. If the hirer controls both the result and the method, the relationship is one of employment.

Applied to delivery workers on Swiggy or Zomato, the evidence of control is difficult to dispute. The platform determines:

• The pay rate
• The delivery route
• The required acceptance rate
• The expected conduct with customers
• The standards for maintaining a rating
• The conditions under which access to work can be withdrawn

The worker has no meaningful discretion over any of these matters. The control test, honestly applied, points toward employment.

6.2 The Economic Reality Test:

Indian courts have increasingly looked beyond the control test to the broader economic reality of the relationship. In Hussainbhai v. Alath Factory Thozhilali Union, (1978) 4 SCC 257, the Supreme Court held that the test of employment is not formal but substantive. What matters is the economic reality of the relationship, not its contractual label.

The Court observed that where a person works for the economic benefit of another and is economically dependent on that relationship, the label of ‘contractor’ cannot insulate the principal from the obligations of an employer.

The argument that gig workers are independent because they own their own vehicles and can work for multiple platforms is not conclusive. Economic dependence, not asset ownership, is what matters. A worker who relies on a single platform for the majority of her income, who cannot negotiate the terms of her engagement, and who faces deactivation at the platform’s discretion is economically subordinate regardless of who owns the bicycle.

6.3 The Multiple Indicia Approach:

Beyond the control and economic reality tests, courts have used a multi-factor approach to determine employment status.

Relevant factors include:

• The degree of control exercised by the hirer over the manner of work
• Whether the work is integral to the hirer’s business
• The degree of financial risk borne by the worker
• The worker’s opportunity for profit or loss
• The presence of mutuality of obligations

In the case of platform workers, most of these factors point toward employment, with the notable exception of the worker’s ownership of their own vehicle. A court applying this test honestly would likely find that delivery workers are employees.

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7. Key Legal Vulnerabilities of Gig Workers

7.1 No Minimum Wage Protection:

The Code on Wages, 2019 applies only to ’employees.’ Since platform workers are not so classified, no minimum wage floor applies to their earnings.

This matters enormously in practice. When the costs are factored in:

• Fuel
• Vehicle maintenance
• Data charges
• Downtime

Many delivery workers earn effective hourly rates below the applicable state minimum wage. Without a legal minimum, there is no floor, and competitive pressure tends to push earnings down.

7.2 No Social Security:

Gig workers have no statutory entitlement to:

• Provident fund contributions
• Gratuity
• Maternity benefits

They are not covered by the Employees’ State Insurance Act, 1948. The CSS 2020’s Social Security Fund, which could have addressed this, remains unimplemented.

Workers who are injured on the job have no statutory claim to compensation under the ESI framework, though a claim under the Employees’ Compensation Act, 1923 is technically possible and routinely resisted by platforms.

7.3 Arbitrary Deactivation:

The most immediate vulnerability is the platform’s power to deactivate a worker’s account at will effectively terminating their livelihood without:

• Notice
• Stated reasons
• Any right of appeal

Workers covered by the Industrial Relations Code, 2020 as ‘workmen’ enjoy statutory protection against arbitrary retrenchment. Gig workers have no such protection.

The platform contract is an adhesion contract: its terms are set and periodically amended unilaterally by the platform, and a worker who objects has no leverage.

7.4 No Collective Voice:

The Industrial Relations Code, 2020 preserves the right to form trade unions for ‘workmen.’ Gig workers, excluded from that definition, have no statutory right to collective bargaining.

Several gig worker unions have been formed, including:

• Indian Federation of App-based Transport Workers (IFAT)

However, they lack statutory recognition and cannot compel platforms to negotiate. Individual workers have no bargaining power whatsoever against platforms that operate at national scale.

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8. The Rajasthan Platform-Based Gig Workers Act, 2023: A State-Level Experiment

In July 2023, Rajasthan became the first Indian state to enact dedicated legislation for gig worker welfare.

Key Features of the Act:

Feature	Description
Registration Requirement	Aggregators must register with the State Government
Welfare Fund	Fund financed through a cess on each platform transaction
Welfare Board	Rajasthan Platform-Based Gig Workers Welfare Board administers the fund

Limitations of the Act:

• Does not confer employment status on gig workers
• Does not set a minimum wage
• Does not regulate working conditions
• The quantum of the welfare cess has not yet been fixed

But as a statement of principle that platforms have an obligation to the workers on whose labour their business depends, it is significant.

Several other states are reported to be considering similar legislation, and the Rajasthan model may eventually precipitate central action.

9. Summary of Key Arguments

The analysis in this paper leads to the following conclusions:

• Gig workers engaged by Swiggy, Zomato, and Uber exhibit, in substance, the hallmarks of an employment relationship. The control test, the economic reality test, and the multiple indicia approach, applied honestly to the facts of platform work, all point toward employment. The ‘independent contractor’ label is a legal fiction that does not survive scrutiny.
• The Code on Social Security, 2020 formally recognises gig workers but offers them no meaningful protection. Its social security provisions remain unimplemented, and the Code does not extend minimum wage, gratuity, or industrial dispute protections to gig workers.
• The Constitutional framework particularly Article 21, Article 14, and the Directive Principles in Articles 39, 41, 42, and 43 provides a strong normative basis for legislative reform and judicial intervention.
• The arbitrary deactivation of accounts, the absence of minimum wage protections, and the exclusion from social security together amount to a systemic denial of the economic and social rights of a rapidly growing workforce.
• The Rajasthan Act, 2023 represents a useful beginning at the State level but does not substitute for comprehensive central legislation.
• Judicial intervention through a well-founded challenge applying the economic reality test to a specific platform’s employment arrangement could provide the immediate relief that legislative delay has denied.

10. Author’s Opinion

The legal framework as it stands is not neutral. By declining to classify gig workers as employees, the law makes a choice a choice that benefits platform companies and leaves workers unprotected. That choice is dressed up as deference to freedom of contract, but it is worth asking whose freedom is actually being protected. A delivery worker who has no option but to accept the platform’s terms on pain of losing her income is not exercising free commercial choice.

The most defensible legislative reform would be a rebuttable presumption of employment for all platform workers. Under such a framework, a gig worker would be presumed to be an employee, and the burden of proving genuine independence would fall on the platform. This is not a radical idea. It reflects what employment law already does in spirit when courts apply the economic reality test. Making it explicit would give workers a clear legal foundation without requiring them to litigate their status individually.

There is also a role for the courts here, without waiting for Parliament. The Supreme Court’s existing jurisprudence on the economic reality test particularly the line of cases from Hussainbhai onwards is fully capable of reaching the conclusion that platform delivery workers are employees. What is needed is a case that puts the question squarely before a court, with proper factual evidence of how the algorithm operates, how performance is monitored, and how deactivation decisions are made.

One caveat is worth noting. The gig economy is not uniformly exploitative. For some workers, platform work genuinely offers flexibility that suits their circumstances students, those with caregiving responsibilities, those doing it as supplementary income. Any regulatory response should be designed to protect those for whom it is a primary livelihood without foreclosing those for whom it is a genuine choice. A tiered approach distinguishing primary livelihood workers from occasional gig workers would be more nuanced and more durable than a blanket reclassification.

11. Future Outlook

Several developments are likely to shape the trajectory of gig worker protection in India over the coming years.

• The most immediate question is whether the Central Government will notify the rules implementing the social security provisions of the CSS 2020. This has been pending since the Code was enacted in 2020, and continued delay is difficult to justify given the scale of the workforce involved. Notification would at least establish the Social Security Fund as an operational reality, even if it would not resolve the broader issues of employment status.
• The Rajasthan model is likely to influence other states. Karnataka, Maharashtra, and Telangana all of which have significant gig workforces have at various points indicated interest in state-level regulation. A patchwork of state laws may eventually create enough political pressure for coordinated central action.
• The growth of gig worker unions and their increasing capacity for coordinated protest is another important variable. The 2022 delivery worker protests were a signal. As gig workers become more organised and better informed about their legal rights, the prospect of test litigation increases. A well-argued case challenging the deactivation of a long-serving delivery worker, or challenging the classification of Uber drivers as independent contractors, could set significant precedent.
• Finally, the increasing role of artificial intelligence in managing gig workers algorithmic allocation, automated performance assessment, AI-driven deactivation raises a new set of legal questions about accountability and transparency that existing law is entirely unprepared to address. Future legislation will need to grapple with algorithmic governance as a distinct legal problem.

12. Conclusion

The gig economy is one of the defining features of the contemporary labour market in India. The workers who make it function delivering food, ferrying passengers, running errands are not peripheral to the economy; they are central to it. That the law has allowed them to remain outside the protective framework that applies to other workers in comparable situations is a matter that deserves more serious legal attention than it has received.

The tools to address this are available. The courts have the jurisprudential framework to reclassify gig workers as employees if the facts are put before them properly. The legislature has the CSS 2020 as a foundation to build on. The Constitution offers a normative framework that supports both routes. What has been missing is the will to use them.

Platform companies have built substantial businesses on the labour of gig workers. The least the law should require is that this labour be performed with basic dignity, economic security, and some protection against arbitrary treatment. Until the law is reformed to guarantee this, the gig economy will remain for most of those who work in it a precarious and unprotected existence.

References

Books and Articles

• NITI Aayog, India’s Booming Gig and Platform Economy: Perspectives and Recommendations on the Future of Work (Government of India, 2022).
• N. Misra, Labour and Industrial Laws (26th edn, Central Law Publications, 2020).
• Virmani, A., ‘Platform Work and Labour Law in India: Regulatory Gaps and the Way Forward’ (2022) 34 National Law School of India Review 112.
• Singh, R. and Sharma, P., ‘Gig Economy Workers and Statutory Protections under Indian Labour Law’ (2021) 63 Journal of the Indian Law Institute 45.
• Datta, M., ‘Algorithmic Management and Labour Rights in India’ (2023) 15 Indian Journal of Law and Technology 78.
• International Labour Organisation, World Employment and Social Outlook 2021: The Role of Digital Labour Platforms in Transforming the World of Work (ILO, Geneva, 2021).
• Fairwork Foundation, Fairwork India Ratings 2022: Labour Standards in the Platform Economy (University of Oxford, 2022).
• Ministry of Labour and Employment, Report of the Expert Group on Labour Law Reforms (Government of India, 2019).

Statutes and Cases Cited

A. Statutes

• The Constitution of India, 1950 — Articles 14, 21, 39(a), 41, 42, 43.
• The Industrial Disputes Act, 1947.
• The Employees’ Provident Funds and Miscellaneous Provisions Act, 1952.
• The Employees’ State Insurance Act, 1948.
• The Payment of Gratuity Act, 1972.
• The Employees’ Compensation Act, 1923.
• The Trade Unions Act, 1926.
• The Code on Wages, 2019.
• The Industrial Relations Code, 2020.
• The Code on Social Security, 2020 — Sections 2(35), 2(61), 113–115.
• The Occupational Safety, Health and Working Conditions Code, 2020.
• The Rajasthan Platform-Based Gig Workers (Registration and Welfare) Act, 2023.

B. Cases

• Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545.
• Consumer Education and Research Centre v. Union of India, (1995) 3 SCC 42.
• Hussainbhai, Calicut v. Alath Factory Thozhilali Union, (1978) 4 SCC 257.
• Silver Jubilee Tailoring House v. Chief Inspector of Shops, AIR 1974 SC 37.
• Balwant Rai Saluja v. Air India Limited, (2014) 9 SCC 407.
• Maharashtra SRTC v. Casteribe Rajya Parivahan Karmachari Sanghatana, (2009) 8 SCC 556.
• Standard Vacuum Refining Co. v. Their Workmen, AIR 1960 SC 948.
• Workmen of Nilgiri Coop. Mkt. Society Ltd. v. State of Tamil Nadu, (2004) 3 SCC 514.

Written By:

• Abhiraj Khare – Penultimate year Law Students of Maharaja Agrasen Institute of Management Studies, Delhi
• Ruchi Bhatnagar – Penultimate year Law Students of Maharaja Agrasen Institute of Management Studies, Delhi