Written by Bhavika Maheshwari, B.A. LL.B. (Hons.) student at Hidayatullah National Law University, Raipur.
Work in the digital age is never-ending and increasingly boundaryless. Late-night emails, WhatsApp work messages, and post-office-hours calls have become routine, and this may be termed “shadow overtime”. Work that is performed but always remains legally invisible. Despite its pervasiveness, such labour is neither recognized nor compensated. Thus, offering no tangible benefit to the employee in terms of wages, bonuses, increments, incentives, or career development.
This tele-pressure culture is often justified by “just a quick call”, “a simple reply,” or “a basic draft”, which gradually leads to conflict of interest between professional obligations and personal time. What appears to be insignificant cumulatively intrudes on the personal liberty, privacy, and mental well-being of an employee. Thus, violating Article 21 of the Indian Constitution under the veil of office work.
The new labour codes, specifically the Occupational Safety, Health and Working Conditions Code, 2020 and the Code on Wages, 2019, which were designed to safeguard the social and human rights of the employees in this digital age, fail to recognize and regulate this invisible digital work, thus enabling and promoting systematic unpaid labour.
THE STATUTORY FRAMEWORK AND ITS STRUCTURAL INADEQUACY IN THE DIGITAL AGE
Recently, 29 central labour laws have been consolidated into four comprehensive codes to simplify the labour legislation and align it with the needs of the digital age. However, they continue to harbour a regulatory framework anchored in an understanding of a pre-digital economy. Labour legislations such as the Occupational Safety, Health and Working Conditions Code, 2020 and the Code on Wages, 2019, stipulate limits on working hours and mandate overtime compensation, but fail to account for the digital work done after office hours on phone calls, WhatsApp messages and emails.
As per these statutes, to qualify for compensation, the overtime work ought to be explicitly directed and formally recorded. But these prerequisites exclude the routine yet pervasive digital engagement after office hours. While this may appear trivial in isolation, a substantial part of the work is done in this way without any compensation. Thus, indirectly promotes a significant magnitude of unrecognized and uncompensated work in an organized sector.
The absence of a clear legal definition of digital or after-hours work, an evidentiary vacuum and informal coercion to receive a call or reply to a text on time further intensifies this problem, leaving the employees without any meaningful legal recourse. As Indian Labour law ignores dispersed, technology-mediated work, it consequently normalises this telepressure culture with constant availability.
DIGITAL LABOUR AND CONSTITUTIONAL SILENCE UNDER ARTICLE 19 & 21
The Constitution of India, under Article 21, guarantees the right to life and liberty, and through judicial interpretation, it has evolved far beyond mere physical existence to incorporate dignity, privacy, health and humane conditions of work. This is directly supported by Article 42 of the Indian Constitution. Despite it being a directive principle of state policy, the Hon’ble Supreme court in the case of Bandhua Mukti Morcha v. Union of India, affirmed that under Article 21, the right to live with dignity includes protection against exploitative labour conditions. Further, in the case of Consumer Education and Research Centre v. Union of India, the court recognized that the health and safety of workers is an integral component of Article 21.
The modern era is full of technology, despite the recent codification of laws and the expansive interpretation of Article 21 of the Indian Constitution, the labour legislation has failed to recognize the digital overtime of work. The modern workplace constantly needs active connectivity, which might extend beyond the control of the employer, and this is the grey area where employees were coerced into answering. The need to respond immediately to a late-night call for a briefing in the pretext of it being important or reply to an office text or draft an e-mail gradually transforms into a sustained intrusion of privacy, violating personal autonomy and liberty. This is the grey area where employees need protection. In 2017, the landmark case of K.S. Puttaswamy v. Union of India held that the right to privacy is an intrinsic part of Article 21.
The human cost here is not just the intrusion of privacy, violating Article 21, but these continuous engagements lead to frequent burnouts, persistent imbalance between personal and professional life. Thus, deteriorating mental health. In Sukdeb Saha v. The State of Andhra Pradesh, the Hon’ble Supreme Court held that mental health is a part of the right to life under Article 21. However, this right becomes illusory, and the employee is expected to work continuously. When there is no compensation or reward for this, it reduces the efficiency of an employee to work. Due to the vagueness in the labour legislation, to acknowledge this and protect the employees. The employer takes advantage of this grey area and coerces the employees to work digitally even after office hours. Despite the judiciary having progressively expanded and strengthened the rights of the workers, the statutory regime continues to fall short in safeguarding these rights in practice.
GLOBAL APPROACHES TO DIGITAL WORK & INDIA’S MISSED OPPORTUNITY
With the advancement in technology, digital labour across several jurisdictions of the globe started getting formal recognition. Countries have started to recognize disconnect as a basic human right. France emerged as a pioneer in this regard, passing the ‘El Khormi Law’ in 2017, amending Article 55(1) in the Labour code by adding Paragraph (7). This law allows companies with more than 50 employees to mutually agree on the terms and conditions of disconnection from work-related communication after office hours. A similar law was passed in Belgium in 2020, following France’s model, but the number of employees was reduced to 20. Ireland, through its Code of Practice, provides a framework and encourages employers to develop a Disconnect Policy on their own. Australia in the year 2024 enacted a similar policy for more than 15 employees. Similarly, Colombia, through its Law 2191 of 2022, formally recognized the right to disconnect. Likewise, the Labour Code of the Republic of Kazakhstan has incorporated the right to disconnect in its legislation.
Although the UAE does not have such a law, its labour code contains a provision that allows employees not to work digitally beyond office hours unless they have consented in writing to do so. These progressive laws allow employees to ignore work calls, emails, and texts after office hours without any fear of reprisal.
India also tried to incorporate disconnection as a right through the Right to Disconnect Bill No. 51 of 2025, introduced in Lok Sabha on 21 February 2025 by Supriya Sule as a private member bill. The bill contains progressive provisions allowing employees to disengage from any work-related communications beyond the formal working hours without the fear of any disciplinary actions.
This bill grants the employees the right to explicitly refuse to attend calls, reply to e-mails or texts beyond the designated working hours. It aims to establish a forum, the Employees’ Welfare Authority, to oversee the implementation of the laws of the bill successfully in every country employing more than 10 employees. Further, it contains the provision that if any digital work is performed after the formal office hours, it should be compensated through overtime pay. If the employer fails to acknowledge the digital work or adhere to the provisions of this bill, the employer shall be liable to pay a penalty of 1% of the total remuneration of its employees, reflecting an attempt to impose financial consequences of shadow overtime.
Though the bill was progressive in nature, it couldn’t get passed, mainly due to the fact that it was a Private Member’s bill. This was a bill of the hour, and this is what our nation needs, which will actually protect the fundamental human rights of employees. However, the Indian labour law persists without any mechanism for recognizing digital labour after office hours. The UAE also lacks any written laws concerning digital work after office hours, but it has provided some guidelines that should be mandatorily followed by the employers. India can also come up with some guidelines, if not a codified law. This is a missed chance for India since this legislative inaction is directly violating the fundamental rights of the workers and is in complete contrast with the international standards.
The Indian labour law not only failed in recognizing the digital labour work after the designated office hours, but it also failed in overcoming a grave danger to the long-term economic productivity of the country. Constant connectivity, which is normalized results in burnout that negatively impacts mental health and efficiency and is a serious economic turning point. The solution to this problem is necessary to avoid burnout and have a healthier work-life balance. The right to disconnect cannot be treated as a managerial privilege anymore in the fast digitalising work environment, but rather affirmed as a legal right to provide dignity, equity, and sustainable labour in the workplace.
Caveat: The views, analyses, and information presented in this article are provided in good faith and for general informational purposes only. No representation or warranty, express or implied, is made regarding the accuracy, adequacy, validity, reliability, or completeness of the information. Readers should conduct their own research and seek professional guidance where appropriate. Neither the author nor the publisher shall be held responsible for any loss, liability, or consequence arising from reliance on this content.
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