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Cannot deny gig workers’ rights under guise of policy decision: SC tells govt
A bench comprising justices Dipankar Datta and Prashant Kumar Mishra expressed displeasure over the Centre’s delay in filing a response to a 2020 petition seeking social security measures.
The Supreme Court on Tuesday told the Union government that labour and social security rights for gig workers and app-based service providers cannot be denied under the guise of a “policy decision” if a statutory regime provides for such protections.
A bench comprising justices Dipankar Datta and Prashant Kumar Mishra expressed displeasure over the Centre’s delay in filing a response to a 2020 petition seeking social security measures, including insurance, provident fund, gratuity, and maternity benefits for gig workers.
Granting a final opportunity to file a response by December 17, the bench said: “This is a petition pending since 2021. They are seeking implementation of statutory provisions. Why have you not filed any response till date.”
A lawyer appearing for the Centre pointed out that since the matter involves a “policy decision”, they would require some more time. Taking exception to this explanation, the bench responded: “There is a submission by the petitioner that there are statutory provisions and regulations that you must comply with. Is it your submission that you will take a ‘policy decision’ whether to comply with the statutory provisions or not? How can that be?”
At this, the Centre’s counsel sought more time to file an affidavit, promising to include relevant legal provisions and changes. The court granted a final extension, directing the government to submit its response by December 17 and scheduling the next hearing for January 20.
The court was hearing a petition, moved by the Indian Federation of Application-Based Transport Workers (IFAT), that has argued for gig workers to be recognised as “unorganised workers” and to be extended statutory benefits such as health insurance and pensions. Notice in the case was issued in December 2021, but the Centre has yet to take a clear position.
The IFAT petition names platform companies such as Zomato, Swiggy, Uber, and Ola, accusing them of denying gig workers their rightful entitlements by misclassifying them as independent contractors. The petition contends that this classification deprives gig workers of essential social security benefits, violating their fundamental rights under Articles 14 and 21 of the Constitution.
Senior advocate Indira Jaising, representing IFAT, emphasised on Tuesday that the case concerns the human and economic rights of gig workers and therefore, a reply from the Centre was a must. She argued that the Centre must extend the same statutory benefits to gig workers that are available to other employees in organised sectors.
The petition filed by advocate Nupur Kumar in September 2020 sought a declaration from the Court to treat the drivers and delivery providers working for the app-based services as ‘workman’ as the app-based companies have claimed to be independent contractors.
“It is the case of the petitioners who are commonly known as ‘gig workers’ and ‘platform workers’ that they are in an employment relationship with the aggregators and hence covered by the definition of ‘workman’ within the meaning of all the applicable social security legislations,” stated the petition.
These legislations include The Workmen’s Compensation Act, 1923; The Industrial Disputes Act, 1947; The Employee’s State Insurance Act, 1948; Employee’s Provident Funds and Miscellaneous Provisions Act, 1952; The Maternity Benefit Act, 1961; The Payment of Gratuity Act, 1972 and ‘Unorganized Workers’ Social Welfare Security Act, 2008.
“The terms of condition by Uber, Ola, Zomato and Swiggy with their drivers or delivery staff are almost the same. In any event the said contracts are fixed-term employment contracts in the nature of ‘take it or leave it’. And the workmen offering their services have no choice but to sign the said contracts for their livelihood,” the petition stated.
Parliament had enacted the Code on Social Security, 2020 in order to amend and consolidate all laws relating to social security and extend the benefits under the said laws to all employees and workers of organised and unorganised sectors. This Code contained a separate chapter on ‘social security for unorganised workers, gig workers and platform workers’ that received the Presidential nod in September 2020 but is yet to be notified.
The 2020 Code, while a step towards consolidating multiple labour laws, has drawn criticism for its inadequate provisions for gig and platform workers. Despite officially recognising these workers as a distinct category, the Code falls short of guaranteeing them statutory social security benefits comparable to those enjoyed by employees in the organised sector. Instead, gig and platform workers are largely relegated to discretionary schemes that may be introduced by the Centre or state governments.
During the brief hearing on Tuesday, the court was informed by senior advocate Ajit Kumar Sinha, appearing for Uber, that with the coming of the 2020 Code, the laws relied on by the petitioner stood repealed and the petition has become infructuous. Jaising countered the submission by stating that the Chapter in the Code dealing with gig workers has not been notified yet which makes the prayers contained in the petition still relevant.
The workers claimed that the issue involves enforcement of their fundamental rights to live under Article 21 of the Constitution of India, besides the right to work, the right to livelihood and the right to decent and fair conditions of work. It is also a denial of the right to equality before law and equal protection of laws since they are similarly situated with all other workers under the applicable social security laws, the petition argued.
Companies such as Uber, Ola, Zomato and Swiggy claim that “there exists no contract of employment between them and the petitioners and that their relationship are in the nature of partnership”. These platforms in their affidavits filed before the top court stated that the drivers working for them are free to board in and board out of their platforms and at best can be termed as “self-employed workers” falling under the Unorganised Workers Act. 2008. They further stated that the welfare of these persons is a matter of legislative policy in which courts cannot intervene.
The petition submitted that merely because the app-based services enter into partnership agreements does not take away the fact that there exists a jural relationship of employer and employee; master and servant and worker within the meaning of all applicable laws.
