Written by Ritika Bherviya and Suraiyya Qureshi are law students at Maharashtra National Law University Mumbai.
Introduction
Every day, millions of Indians rely on app-based workers to deliver food, drive them to work, transport packages and provide home services. Gig workers have become the backbone of India’s platform economy. According to NITI Aayog, the gig sector was expected to employ over 1 crore workers in 2024-25, with this number projected to reach 2.35 crore by 2029-30. Despite their growing importance, one question remains: do they have a legally enforceable right to minimum wages?
In response to questions raised in Parliament, the government has maintained that the Code on Wages, 2019 extends universal minimum wage protection. Simultaneously, through the Code on Social Security, 2020, it has recognised gig and platform workers as distinct categories which is entitled to specific social security benefits. But this is where the debate begins between these two legislative developments. The Code on Wages imposes minimum wage obligations upon an employer in respect of an employee, whereas the Code on Social Security defines gig workers operating outside the traditional employer-employee relationship. If gig workers are not employees in this conventional sense, then who is legally responsible for guaranteeing their minimum wage?
The answer remains unclear because India’s labour law identifies no legally accountable duty-bearer responsible for enforcing this right. Recognition without a corresponding duty-bearer transforms minimum wage protection from an enforceable legal entitlement to little more than a policy aspiration. The issue, therefore, is not whether minimum wage protection has been promised, but whether it can be enforced.
Recognition without Responsibility
The government has consistently projected India’s labour reforms as extending protection to gig and platform workers. In response to questions raised in Parliament regarding the applicability of minimum wages to gig workers, the Ministry of Labour and Employment stated that the Code on Wages, 2029 provides for universal minimum wage protection and that gig workers are covered within the framework. At the same time, the Government highlighted the enactment of the Code on Social Security, 2020, which for the first time recognises “gig workers” and “platform workers” as distinct categories and provides for social security measures such as life and disability cover, accident insurance, health and matemity benefits and old age protection.
To make these benefits effective, the Government has increasingly relied on the e-Shram portal. It’s a national database for registering unorganised workers and improving implementation of social security services. Working towards this, the Government recently directed major digital platforms including Swiggy. Zomato. Uber. Ola. Rapido. Blinkit and Zepto to register gig workers on the e-Shram portal to expand their access to social security benefits.
There is no doubt that these measures strengthen the recognition and welfare of gig workers. But they do not answer the central legal question raised by the interaction between these labour codes. Who bears the statutory obligation to guarantee minimum wages? Recognition under the Code on Social Security itself cannot create wage liability under the Code on Wages unless the law identifies the entity against whom these obligations may be enforced.
The Missing Duty-bearers
Minimum wage protection assures a minimum standard of living and protects against unequal bargaining power of the employer from low wages. This objective becomes difficult to implement when the law recognises workers but leaves no entity legally responsible for fulfilling wage obligations. Section 5 of the Code on Wages, 2019, provides that “no employer shall pay to any employee wages less than the minimum rate of wages notified by the appropriate Government.” The Statutory obligation here is clear that minimum wages are payable by an employer to an employee. Hence, the enforceability of this whole provision is based upon the existence of an identifiable employer-employee relationship.
The difficulty arises when this provision is read alongside the Code of Social Security. 2020. Section 2 (35) defines a ‘gig worker’ as “a person who performs work or participates in a work arrangement and earns from such activities outside the traditional employment framework.” In contrast, section 2 (61) separately recognises “platform workers” as individuals who provide services through online platforms. The Social Security Code recognises gig and platform workers as a different group of workers for which social security benefits are to be provided, while also setting aside that group from that traditional employer/employee relationship. This results in a significant gap in the legislation. If the obligation to pay minimum wages under the Code on Wages is upon an employer in favour of an employee, who bears this obligation in case of gig workers?
- Platform Classification
One possible solution would be to treat digital platforms as employers. But this is precisely the position that platform companies consistently reject. Platform companies such as Swiggy. Zomato. Uber and Ola categorise themselves as technology platforms or intermediaries that just provide for transactions between service providers and customers. This contractual arrangement describes workers as “delivery partners”, “driver partners” or “independent contractors” and expressly denies the existence of an employment relationship. As a result, while these platforms exercise considerable control over the allocation of work, pricing mechanism and performance standards, they at the same time deny the legal status that would ordinarily attract obligations under the labour legislation, including the obligation to pay minimum wages.
- The Challenge of Multi-Apping
The issue is further complicated by the nature of platform work itself. Gig workers frequently provide services through multiple digital platforms during a single day. A delivery partner may undertake delivery for Blinkit in the morning, switching to Instamart in the afternoon and later may accept orders from Zomato. Similarly, the ride-hailing drivers remain logged into both Uber and Ola at the same time to maximise their earning opportunities. This practice of ‘multi-apping‘ makes it difficult to identify a single platform that should bear responsibility for ensuring compliance with minimum wage obligations, if any, in future. Should each platform be responsible only for the work performed through its application, or should only one platform be liable for ensuring that the worker’s total earnings meet the statutory minimum wage? The existing statutory framework does not guide on how minimum wage liability should be allocated where labour is performed across competing digital platforms on the same day. This is not just a practical difficulty but it also exposes inadequacy of labour laws which are designed as per single employer and single workplace.
Thus, the main gap in the existing framework is not only the absence of an express provision extending minimum wage to gig workers but also the absence of a clearly identifiable legal duty-bearer: Until the law either recognises digital platforms as employers or creates an independent statutory mechanism imposing minimum wage obligations upon aggregators, the enforceability of minimum wage protection for gig workers is not possible in the future.
Can Courts Solve the Problem?
Another possible response to this statutory ambiguity is that courts could simply recognise an employment relationship between digital platforms and gig workers and extend labour protection. But Indian courts have repeatedly held that the existence of an employment relationship depends on the actual work arrangement rather than the mere contract adopted by parties. In Dharangadhra Chemical Works Ltd. v State of Saurashtra, the Supreme Court emphasised that the degree of control and supervision exercised by the employer is the decisive factor in determining whether a person is a worker or not under the employment. Similarly, in Birdhichand Sharma v. Frist Civil Judge. Nagpur, the court recognised even piece-rate bidi workers as employees under the employment relationship, as the employer retained sufficient control over the manner in which the work was performed. These decisions depict that Indian labour law has determined employment status through the control and supervision test.
These traditional tests however, are quite hard to apply in context of platform work. Unlike traditional employment relationships, digital platforms exercise significant control through algorithmic management. They allocate work, constantly monitor workers by digital technologies, assess their performance through ratings and automated metrics, and control workers behaviour by offering incentives and even threatening to grant fewer opportunities in the future or even to deactivate accounts. Meanwhile, most workers can set their own schedules and work times for the platform. This complex arrangement does not fit within the traditional relation of employee and independent contractor on which the whole and soul of Indian Labour law is based.
Judicial recognition alone does not remedy the underlying structural issue. Even if courts classify particular gig workers as employees in individual disputes but, litigation is fact-specific and retrospective. It cannot establish obligations on the whole of the labour industry, allocating minimum wage obligations across platform-based work.
Multi-platform working just adds up to the overall problem. Labour protections, particularly through judicial interpretation, can help secure individual protections, but they do not change the uncertainty of the structure and minimum wage liability within the platform economy. Ultimately, this problem requires legislation either to give gig workers minimum wage protection or to create a statutory definition of what it means to be a gig worker, along with the definition of who is obligated to fulfil it.
Looking Abroad
Several jurisdictions have recognised that platform workers require enforceable wage protections rather than a mere legal recognition. In Uber BV v. Aslam, the UK Supreme Court held that Uber drivers are “workers”, which is an intermediate category between employees and independent contractors and therefore entitled to minimum wages and paid leave. The court in this case looked beyond the statutory definitions and focused on real-life factors such as Uber’s control over fares and working conditions to decide their status. The importance of this judgement does not solely lie in the creation of a separate category but in how even after creation, the protection does not cease to apply. India’s labour codes, by contrast, recognise gig workers as a distinct category, but with social security benefits and leaving them without comparable wage rights. Similarly, Ontario’s Digital Platform Workers” Rights Act. 2022, creates a separate statutory category of digital platform workers and guarantees them at least the applicable minimum wage for every work assignment performed.
Though these models do not fully address issues such as multi-platform work but they share one important feature that is absent from India’s labour codes. They create a clear legal basis for enforcing wage rights and certainty on who owes the enforcing wage obligations. Comparatively, India recognises gig workers under the Code on Social Security but does not give wage rights or even identify its enforcement mechanism.
Reimagining Labour Protection
India’s recognition of gig workers under the Code on Social Security, 2020 is an important step, but it cannot be substituted for minimum wage obligations. Labour protection in its true sense requires moving beyond welfare registration towards enforceable wage rights. The following reforms may help bridge the gap.
First, Parliament should build upon the existing statutory recognition of gig workers under the Code of Social Security, 2020 by extending core labour protections including minimum wage guarantee to this category of workers. Rather than creating an entirely new classification, Parliament can look upon UK’s ‘worker category. It extends labour rights inclusive of minimum wages without requiring proof of a traditional employer-employee relationship. Corresponding amendments to the Code on Wages, 2019 should also be made which expressly extend minimum wage protection to gig workers. Further, clearly identify digital platforms or aggregators as the entities responsible for complying with these obligations, even in absence of traditional employment relationship.
Second, the legislature has to do more than just recognising gig workers as beneficiaries of social security and put the responsibility for minimum wage obligations onto someone. For workers that offer services across more than one digital platform, the responsibility should be distributed amongst aggregators, depending on the total number of services given, or the number of services available through the platform that generated the greatest money. This will ensure that the statutory rights of the worker to minimum wage do not turn into an unenforceable right because he/she is engaged with multiple applications.
Third, the current e-Shram portal needs to be enhanced from the previous function of being a welfare database to a central repository of verified data on gig workers’ engagement, working hours and earnings through digital platforms. It would therefore help the labour authorities to better monitor compliance with the minimum wage requirements, especially for employees who are engaged in work on several platforms, and allow for transparency and accountability.
Conclusion
With the recognition of gig workers and integration into the social security scheme, India has made a pivotal leap. However, merely establishing recognition is not enough to mean protection. A right to minimum wages is meaningless if it isn’t clear who’s supposed to pay it or enforce it.
As the gig economy continues to grow, India’s labour laws must grow with it. The real challenge is no longer whether gig workers deserve minimum wage protection, but how the law can make that protection meaningful in a platform-based economy. Until Parliament clearly identifies who bears this responsibility, the promise of universal minimum wage will remain difficult to enforce.
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