Lessons from Horizontality: A Caution Note on Instant Deliveries

The Indian economy that is based on delivery of quick services is well known to be negligent towards its workforce. Most instant delivery options like ‘10-minute delivery’ in Indian e-commerce, provide services aimed at the instant gratification of demand and are often built on an overworked and underpaid workforce who are denied paid holidays and healthcare premiums. While disregarding the rights of such workers, is against the provisions of the Indian Constitution and labour laws, yet surprisingly this form of forced labour continues to prevail.

Undeniably, reconciling conflicts between the employees and the employer is a complex task and more so when they are non-state actors. The jurisprudence on it is meandering but provides some methods of approach. To understand this, reference may be drawn to the horizontal application principle, that is the flow of constitutional rights and duties among the governed subjects or the people. A direct application of this principle would suggest that a private entity’s violation of an employee’s fundamental rights may be tested against the Constitution. The Indian Supreme Court supported this application in PUDR v. Union of India by reinforcing the meaning of ‘similar forms of forced labour’ in Article 23 of the Constitution, in the context of prevention of trafficking of human beings and forced labour. The Court noted that ‘similar forms of forced labour’ meant every form of forced labour, even if contracted voluntarily. To apply this construction to the problem created by the quick services economy, we must understand how the labour in this situation may be forced within the meaning of the jurisprudence.

As emphasized earlier, instant deliveries have changed the operating forces of the relationship between employers and employees in the ecosystem. Even prior to the concept of 10 minute food delivery businesses, workers were chasing tight timelines to deliver results. However with the advent of the 10-minute delivery service of food in India, the workers have now been forced to perform in more stressful working circumstances than ever before, including dangerously commuting and navigating faster on congested Indian roads. Interestingly Dominos had to abandon its 30-minute delivery guarantee in the United States following accidents because of rash driving and a civil suit for damages. However, there seems to be no respite yet for Indian workers forced to make food deliveries within an unreasonable time span.

One might argue that workers working in the quick food services delivery industry choose such a profession and therefore cannot be equated to forced labourers. However, it must be emphasized that such workers are forced workers as they have no other alternative form of employment. Such workers either continue to work under the stressful conditions or risk being laid off.

While the Indian Supreme Court has been proactive and upheld concepts of individual agency in recent years, especially with groundbreaking moments like the Puttuswamy judgment which read privacy as a fundamental right in Article 21 of the Indian Constitution, the application of the doctrine of horizontality needs further consideration. The requirement, therefore, is to institutionalize the jurisprudence on horizontal interactions by involving the State’s potential to affect conduct. The absence of privileges or security for workers who are in the quick food services delivery industry can only be countered with effective regulations, like for example the Code on Social Security that was passed by the Indian Parliament in 2020 and which consolidates the laws relating to social security with the goal to extend social security to all employees and workers in the organized as well as unorganized or any other sector. Although in addition to such laws there needs to be complementary mechanisms to oversee strict implementation of such laws so that private bodies do not have unfettered allowance to operate as they wish and make workers pay the price of corporate greed.

It would be pertinent to note that the primary economy, when it is unable to generate enough employment in a particular sector, gives birth to a shadow strand of its own, leaking into the underbelly of temporary employment. Desperate workers, to make fast money, sign up for a job, surrendering all individual concerns of safety and health. Such is the nature of this fast paced quick delivery industry. But since it is temporary, the macroeconomic gains are never truly settling anywhere. Uncertainty surrounding individual concerns leaves many with tight decisions to make about personal disposable income. Savings are meagre and inflation is always inevitable.

The overlapping of the economy, identity and the law is glaring. An intersectional analysis would prove that the fast paced quick delivery industry economy in India has on the contrary worsened the state of rights. Case in point, it is far worse for a lower-class woman who belongs to a minority class to recognize that her labour is forced, as this is not a consideration she is ‘wired’ to think of. Her unfortunate conditioning has led to a denial of violation. With demand for services peaking in the wake of the pandemic, private companies are pushing for expansions across the nation. While this means there will be jobs, whether these jobs will be dignified in the true sense is yet to be seen. It is time that we must assess whether there is a need for an acceleration in our collective circumstances? We need to introspect to understand if we really need a product or service 20 minutes earlier than what we would have got it for anyway? If the answer is yes, then the baton passes to the judiciary to engineer constructive discourse to enable existent laws to protect such workers. Such is the utility of our common law, for it provides for a wide import of ideas across generations.

The author, Bhaskar Vishwajeet, is a first year student at Jindal Global Law School.