Free to Work: The Unfree Gig Workers of India

ABSTRACT

This article examines the free market system of the gig economy in India wherein temporarily associated ‘partners’ of an aggregator known as the gig workers are ‘free’ to choose when they work. However, there is an absence of collective responsibility from the state and the market, denying social protection to this class of workers. The author debates that gig work presently exists in a legal vacuum in India which has resulted in the emergence of a mass sector of the working class that are underemployed and unwilling to jeopardise this work-based relationship even though they are being exploited and denied their fundamental rights. The author concludes with the realisation that this is not a development challenge that has been ignored by social policy but that policy intentions have not translated into successfully addressing its influence in hierarchies of value chains that are more informal in nature.

INTRODUCTION

Over the last two decades, there has been a major restructuring in the nature of the global labour market and economic revolution, resulting in the emergence of a significant population which is surplus to the requirements of the national economy, and excluded from the benefits of economic growth. This restructuring has been accompanied by a rise in underemployment and also unemployment, resulting in a massive absolute increase in the number of working-age poor (Surender et al., 2013).

This period of economic transformation has resulted in GDP growth which has been associated with the creation of poor quality employment on a mass scale, with workers being poorly paid in poor working conditions, and limited conformation to the ILO’s conception of ‘decent work’. At the same time, mass urbanisation and migration have been largely driven by the search for a share of the benefits of growth and have coincided with major changes in the agricultural sectors in many low and middle-income countries, resulting in the breakdown of traditional rural livelihoods and support mechanisms (Surender et al., 2013). Together this perfect storm of fundamental economic change has resulted in the emergence of a mass sector of the working class that is derived from any social protections or decent working conditions. This informal class of workers in India comprises a class of employment that falls outside the traditional definitions of employer-employee relationship. They are known as gig workers. The gig workers form part of this newly recognised economic demographic known as the gig economy which is a labour market that relies on independent contractors and freelancers rather than full-time permanent employees.

The experiences of a semi-skilled gig worker differ significantly from those engaged in high-skilled consulting services such as accounting, law, economics and finance. The latter group typically have conventional jobs and view gig work as an additional income, enjoying greater bargaining power, higher wages and a comfortable lifestyle. In contrast, semi-skilled gig workers face challenges of unlimited working hours, minimum wage rates, lack of social security benefits and arbitrary removal from the platforms (Banik, 2023). Currently, 47% of gig work is in medium-skilled roles, 22% in high-skilled, and 31% in low-skilled positions (Niti Aayog, 2022).

The world’s most populous country with over 1.4 billion people and a surplus of individuals in their working age (median age - 28 years) faces challenges in job availability. According to the government’s Periodic Labour Force Survey data for 2021-2022, the unemployment rate remains constant at 8.8%, showing little changes since 2017. This is unsurprising, given the limited technical education and tertiary level certificates among young workers — only 1.3% have technical education, and just 0.7% possess a vocational education graduate certificate (Banik, 2023). As a result, many turn to low-paying gig work. Around 7.7 million people relied on such jobs in 2020, and this number is expected to rise to 23.5 million by 2030 (Niti Aayog, 2022), establishing it as the world’s second-largest gig economy (ILO, 2023).

In terms of economic contribution, the gig economy is projected to make up approximately 1.25% of India’s GDP by 2025, potentially generating 90 million jobs. Echoing Gramsci, Fanon, has noted that, in such capitalist societies, political superstructures in the form of the rewards given to workers lighten the “task of policing considerably,” even as intellectuals organise to “separate the exploited from those in power” (Ali, 2015).

REASONS FOR CONCERN

The shift mentioned in the previous section represents a major challenge. Mass labour market protection failure and the resultant impoverishment represent a significant moral challenge, requiring immediate policy responses to protect the social and economic rights of gig workers. Digital technology produces labour relationships very similar to those in traditional factories. Thus, as the means of production, the gig workers can be recognised as ‘workers of a digital factory’ (Altenried, 2021). Mobile capital has utilised the breakdown of production processes to leverage abundant, inexpensive, and unorganised labour in developing nations, as well as the influx of affordable migrant labour in developed countries, thus circumventing organized workforces (Kabeer, 2010).

The gig economy in India is marked by a myriad of hurdles, significantly impacting the lives of its participants (IFAT, 2020). From the absence of social security benefits to the lack of safety nets, gig workers contend with a range of issues that demand attention and resolution. Several key issues facing gig workers today are (though not exhaustive):

NEOLIBERALISM to NECROCAPITALISM

Technological advances produced the Neoliberal order. Economic policies produced concentrated macroeconomic growth within increasingly narrow segments of society. This led to corruption, inequality, and criminalised poverty, exacerbated by intensified structural dynamics (LeVine, 2020). By the turn of this century, this dynamic gave rise to a new form of politics known as Necrocapitalism. This socio-economic order is characterised by a country’s trade and industry being directly or indirectly linked to and dependent on death and the profits derived from it (Bobby Banerjee, 2008). The escalating inequality, poverty, societal pathologies (debt, disease, addiction) and environmental degradation prompt questioning of the morality and sustainability of the system, where the normalisation of loss of social support or traditional systems is evident.

The Indian Federation of App-based Transport Workers (IFAT) and the Transport Workers’ Federation conducted a study with 2128 respondents across six Indian cities. The findings revealed that the average taxi driver spends 16-20 hours a day in their car, with 89.8% reporting less than six hours of sleep. Common health challenges include backaches, liver disease, constipation, and waist and neck pain. Despite these challenges, aggregators do not provide health and accidental coverage. Worse still, there are instances where aggregator reduces the minimum wage rate without compensating for higher fuel prices or heavier loads on motorcycles (IFAT, 2020). This exemplifies necrocapitalism, as Indian aggregators exploit legal grey areas to exploit wage payments and working hours (Banik, 2023).

The Grey Area of Denied and Undenied Legal Rights

Rights often find their way into the laws, but their formal acknowledgement does not always result in tangible outcomes. Today there is a dual approach combining pressure on the state for protective legislation with an increasing dependence on legal mechanisms to promote workers’ rights and address grievances (Kabeer, 2010).

The denial of social security constitutes exploitation through forced labour under Article 23 of the Indian Constitution. Service aggregators enforce regulations, including minimum work hours and a code of conduct, restricting workers from refusing jobs, or negotiating job prices. Despite contractual claims of workers being free agents, the prevailing approach is to ‘take or leave’ as negotiations on terms and conditions are not permitted, thereby resembling forced labour (Kashyap, 2021).

The Supreme Court of India (The Indian Federation Of App-Based Transport Workers (IFAT) v Union of India, WP (C) 1068/2021) has outlined that determining an employer-employee relationship involves assessing the authority to select and dismiss workers, handle remuneration, organise work, and deduct insurance contributions. Given that service aggregators exert control over gig workers, implies an employer-employee relationship suggesting that gig workers should be classified as ‘workers’, making them eligible for social security benefits.

To a certain extent, the judiciary steps in where the administration fails. In leading examples where people have felt the state failing them, they have approached the Supreme Court to reinforce the duty of the government. The petition filed by IFAT argued that aggregators such as Ola and Uber (App-based cab services) and Zomato (Food-Delivery app) violated the workers’ rights to equality (Article 14), freedom (Article 21), and their right against exploitation (Article 23). They demanded an increased share in the journey fares, improved rates considering rising fuel prices, more flexible hours to meet targets and accident insurance. They also highlighted that several Ministries of the Central Government have violated Article 23 (Prohibition of traffic in human beings and forced labour) by not recognising gig workers as ‘workers’ under social security laws. This Public Interest Litigation (PIL) pleads that the government be directed to recognise all gig workers as ‘unorganised workers’ under Section 2(m) of the Unorganised Workers’ Social Welfare Security Act, 2008 to claim social security benefits (Banik, 2023). Under the 2008 Act, social security benefits for workers place the responsibility on the Central Government to provide life and disability cover, health and maternity benefits, old age protection, and other social benefits. Simultaneously, the State Government is tasked with providing provident funds, employment injury benefits, housing, educational schemes for children, skill up-gradation of workers, funeral assistance, and old age homes. The IFAT has contended, that failing to register gig workers under the Act would be violative of their fundamental rights.

Furthermore, certain Directive Principles of State Policy (DPSPs) are also relevant to the cause:

• Article 39(e): Mandates the State to direct its policies on preventing the exploitation of workers' health and strength and ensuring that citizens are not compelled to undertake unsuitable work due to economic necessity.
• Article 41: The State is mandated to within its economic capacity and development allowance, effectively make provisions for securing the right to work, education, and public assistance in situations like unemployment, old age, sickness, disability, and other instances of undeserved want.
• Article 42: Mandated to establish just and humane working conditions and provide for maternity relief.
• Article 43: Obliges the State to strive for employment, a living wage, satisfactory working conditions, ensuring a decent standard of life, and full enjoyment of leisure and cultural opportunities to all workers, industrial or otherwise, through legislation, economic organization, or any other means.

A decision in this case is still pending before the Supreme Court. However, the basis of the PIL of IFAT relied on the decision of the U.K. Supreme Court in Uber BV vs. Aslam (2021). In 2016, two Uber drivers took legal action claiming they were “workers” and were being denied their rights and wages. The employment tribunal ruled in favour of the drivers classifying the 40,000 Uber drivers as “workers”. It further ruled that drivers’ hourly wage calculations must include the time spent waiting for rides. Uber appealed twice unsuccessfully leading the case to the Supreme Court in 2020. The key issue was whether drivers using the Uber App under workers’ contracts were eligible for rights such as national minimum wage, and paid leaves. Uber argued their role as a booking agent wherein the drivers were independent contractors, with contracts directly made with the passenger, makes them ineligible for workers’ rights. A secondary question arose about whether the tribunal was justified in finding that drivers were working as soon as they logged into the Uber App to accept trips. Uber contested this asserting that drivers were only working when driving passengers. The Supreme Court examined Uber’s control over the drivers including rates, contract terms, performance monitoring, mandated routes, and restrictions on personal communications. It concluded that Uber maintained strict control over its drivers so much so that to improve their economic conditions, drivers must work long hours on Uber’s terms. It affirmed the tribunal's decision, recognising Uber drivers as "workers" entitled to rights such as the minimum wage and paid leave.

The IFAT in their case is contending that Uber, being a multinational entity, must treat all its drivers across the world the same and thus, the compliances they are now fulfilling in the UK, must also be met in India.

To address rising concerns, the Indian government introduced the Code on Social Security 2020, which defines and outlines welfare programs including for gig, platform, and unorganised sector workers.

Section 2(35) defines a gig worker as ‘a person who works and earns in an arrangement outside of the traditional employer-employee relationship’.

Section 2(60) defines platform work includes ‘work, outside of the traditional employer-employee relationship, where organizations or individuals use online platforms to solve problems or perform services or other activities, as may be notified by the Central Government, in exchange for payment’.

Social security, under Section 2(78) includes ‘measures to ensure access to health care and to provide security of income, particularly in cases of old age, sickness, unemployment, invalidity, maternity relief, and work injury or loss of a breadwinner. These measures are to give basic protection to employees, gig workers, unorganized workers, and platform workers.'

The code simplifies the process of accessing comprehensively tailored social security benefits for employees, with funding possibilities from the central and state governments, as well as through contributions from gig economy aggregators.

However, concerns arise about potential issues in defining gig and platform workers and their registration processes’ inclusivity. For instance, an Uber driver working outside the traditional employer-employee relationship and using an online platform to provide a service in exchange for payment could be categorised as both gig and platform workers.

Furthermore, restricting benefits may prompt online platforms to enforce stricter schedules to preserve profitability, impacting the freedom of gig workers and potentially altering employment methods, wage structures, and minimum working hours. Despite receiving the Presidential assent on September 28, 2020, the code is not yet in effect.

The Absence of Power to Negotiate

In urbanised business sectors, the working class has everything to lose. They have no desire for the “radical overthrowing of the system,” as they are “in fact partisans of the new order”. Their goals involve the attainment of greater degrees of power and reforms and improvements in their living conditions—goals that reinforce the system’s logic rather than subverting it (Ali, 2015). Their concrete interest in the survival of this system makes them, in a sense, alienate their labour power in return for wages.

Gig workers are perceived as ‘free’ to work and choose their employers. However, they are essentially unfree labourers unable to determine their working conditions. They may be compelled to work in unsafe environments due to a lack of bargaining power with capital, highlighting an element of coercion within these working conditions shaped by legal orders. (Natarajan et al., 2020).

Unfree forms of waged work are one of the many means through which capital at an abstracted level extracts surplus. Lerche has examined labour relations in India for the past 20 years, advocating for a ‘continuum’ approach, ranging from ‘fully unfree relations till it reaches a point at which it meets socially and historically continuously re-negotiated minimum criteria regarding pay and conditions’. His analysis highlights the complex and interconnected nature of various forms of exploitation in empirical reality. He emphasises that a continuum approach recognises unfree labour as ‘sharing characteristics with a wider set of relations, both with regard to the underlying processes which lead to their creation by capital and concerning conditions of work and pay for labour’. In terms of the nation’s economy, this has resulted in a generation of low-wage employment and inadequate social protection (Natarajan et al., 2020).

The emergence of common labour conditions enables the formation of alliances rooted in the ‘dignity’ of individuals and their ability for self-organisation and collective action (Bhambra & Holmwood, 2018). However, since gig workers are not formal employees i.e., they are not protected under any law, their unions are not recognised by companies leaving them toothless with an instrument that is unable to negotiate. Rather, in these circumstances, it has become an instrument to agitate (Ganguly & Touhid, 2023). Without a basic level of security, any effort to express their opinions poses a risk of jeopardising relationships with companies they depend on for fulfilling basic needs. Conversely, without this voice, it's challenging to alter the terms of these relationships or access alternatives with less extreme dependency (Kabeer, 2010).

Although codes of conduct have impacted intermediaries and suppliers directly linked to multinational corporations, their influence diminished the less visible, distant, and informal stages of the value chain where poorer workers are situated (Kabeer, 2010).

The Role of the State in Shaping Social Policy and Welfare Regimes

Political regionalisation and economic liberalisation collaborate, placing governments at the forefront of addressing the challenge of widening inequality amidst rapid economic growth (Tillin, 2021). India has embraced a protective role with its policy strategies relying on a rights-based policy agenda. It focuses on establishing legal entitlements to social provisions in a bid to empower citizens to demand better service delivery. Legislations establish a range of social rights, including education, food, employment, and information. However, given the high level of informality in the state which cannot be bracketed under the relative dependence of market versus public policy, the sector is influenced by non-market and non-state entities like family, community and non-governmental organisations that play a significant role in supporting livelihoods and managing risks.

The cross-section of a ‘state productivist regime’ (social protection is used to encourage labour market participation), and ‘state protectionist regime’ (high levels of labour commodification, accompanied by protections for formal sector workers) leaves a blind spot where the gig economy in India is flourishing without any social protection.

Social protection is often viewed in terms of welfare rather than empowerment, however, it also has the potential for empowerment by playing a transformative role in asset creation as part of social protection (Pellissery & Jalan, 2011). E-Shram, initiated by the Ministry of Labour and Employment, aims to establish a centralised database for all unorganised workers including gig and platform workers. This portal is designed to enhance employability recognition and facilitate access to social security schemes. The objective is to enhance the efficiency of implementing social security services for unorganised workers and integrate various social security schemes tailored to this demographic.

REFLECTIONS AND WAY FORWARD

Social policies in India extend beyond welfare and social development; contributing to regime legitimacy (Mooij, 2007). The growing number of Indians reliant on the gig economy necessitates government intervention to safeguard labour rights and ensure humane labour practices.

One point that emerges strongly is the value attached to paid work, however precarious, and hence the unwillingness to jeopardise this through forms of action that might disrupt work-based relationships. This has helped to shape the kinds of strategies employed by organisations seeking to promote gig work.

The other important point that emerges from theory is the importance attached to social security measures along with improving wages and conditions of work. Pressure is often exerted on the state to support and extend protection measures, including labour legislation, rather than on private employers to be held equally responsible in areas they are lacking.

Efforts should be intensified to translate intentions into actual results and prevent policy failures or absenteeism. Rather than just letting policies or codes of conduct drift into full or even partial failure, governments must begin to take an interest in ways in which the policy process – and especially their implementation can be strengthened and supported (Hudson et al., 2019).

REFERENCES

Aayog, N. (2022). (rep.). India’s Booming Gig and Platform Economy: Perspectives and Recommendations on the Future of Work. Retrieved November 13, 2023, from https://www.niti.gov.in/sites/default/files/2022-06/25th_June_Final_Report_27062022.pdf.

Ali, N. G. (2015). Reading gramsci through fanon: Hegemony before dominance in revolutionary theory. Rethinking Marxism, 27(2), 241–257. https://doi.org/10.1080/08935696.2015.1007793

Altenried, M. (2021). Mobile workers, contingent labour: Migration, the gig economy and the multiplication of labour. SAGE Journals | Environment and Planning A: Economy and Space. https://doi.org/https://journals.sagepub.com/doi/full/10.1177/0308518X211054846

Banik, N. (2023, September 23). Necrocapitalism and the Dark Side of India’s gig work economy. East Asia Forum. https://www.eastasiaforum.org/2023/09/23/necrocapitalism-and-the-dark-side-of-indias-gig-work-economy/

Bhambra, G. K., & Holmwood, J. (2018). Colonialism, postcolonialism and the Liberal Welfare State. New Political Economy, 23(5), 574–587. https://doi.org/10.1080/13563467.2017.1417369

Bobby Banerjee, S. (2008). Necrocapitalism. Organization Studies, 29(12), 1541–1563. https://doi.org/10.1177/0170840607096386

Ganguly, A., & Touhid, R. (2023, March 29). Gig Work Seen as Economic Revolution, But 8 Million Indian Gig Workers Are Not Considered Employees, Denied Social Security. Article 14. Retrieved November 13, 2023, https://article-14.com/post/gig-work-seen-as-economic-revolution-but-8-million-indian-gig-workers-are-not-considered-employees-denied-social-security-64239dd0060b5

Hudson, B., Hunter, D., & Peckham, S. (2019). Policy failure and the policy-implementation gap: Can policy support programs help? Policy Design and Practice, 2(1), 1–14. https://doi.org/10.1080/25741292.2018.1540378

IFAT. (2020). (rep.). Protecting Workers in the Digital Platform Economy. Retrieved 2024, from https://cis-india.org/raw/files/ifat-itf-protecting-workers-in-digital-platform-economy-ola-uber-occupational-health-safety-report/.

ILO. (2023). (rep.). Decent Work Country Programme for INDIA (2023-2027). Retrieved January 16, 2024, from https://www.ilo.org/wcmsp5/groups/public/---asia/---ro-bangkok/---sro-new_delhi/documents/publication/wcms_873755.pdf.

Kashyap, G. (2021, December 7). Gig workers’ access to Social Security: Writ petition summary (the Indian Federation of APP-based Transport Workers). Supreme Court Observer. https://www.scobserver.in/reports/gig-workers-access-to-social-security-the-indian-federation-of-app-based-transport-workers-ifat-v-union-of-india-writ-petition-summary/

Kabeer, N. (2010). 8. The Indispensability of Voice: Organising for Social Protection in the Informal Economy. In Gender and Social Protection Strategies in the informal economy (pp. 262–300). essay, Routledge.

Khan, M. H. (2005). Markets, states and democracy: Patron–client networks and the case for democracy in developing countries. Democratization, 12(5), 704–724. https://doi.org/10.1080/13510340500322157

LeVine, M. (2020, July 15). From neoliberalism to necrocapitalism in 20 years. Al Jazeera. https://www.aljazeera.com/opinions/2020/7/15/from-neoliberalism-to-necrocapitalism-in-20-years

Mooij, J. (2007). Is there an Indian policy process? an investigation into two Social Policy Processes. Social Policy & Administration, 41(4), 323–338. https://doi.org/10.1111/j.1467-9515.2007.00556.x

NASSCOM. (2020). (rep.). Decoding “Gig Economy”: Emergent Industry Shift Towards A Blended Work Model. Retrieved January 15, 2024, from https://www.nasscom.in/knowledge-center/publications/decoding-gig-economy-emergent-industry-shift-towards-blended-work.

Natarajan, N., Brickell, K., & Parsons, L. (2020). Diffuse drivers of modern slavery: From microfinance to Unfree Labour in Cambodia. Development and Change, 52(2), 241–264. https://doi.org/10.1111/dech.12623

Pellissery, S., & Jalan, S. K. (2011). Towards transformative social protection: A gendered analysis of the employment guarantee act of India (MGNREGA). Gender & Development, 19(2), 283–294. https://doi.org/10.1080/13552074.2011.592639

Surender, R., Walker, R., McCord, A., & Meth, C. (2013). Chapter 9: Work and welfare in the global South: public works programmes as an instrument of social policy. In Social policy in a developing world (pp. 172–182). essay, Edward Elgar.

Tillin, L. (2021). Does India have subnational welfare regimes? the role of State Governments in shaping Social Policy. Territory, Politics, Governance, 10(1), 86–102. https://doi.org/10.1080/21622671.2021.1928541