NEW DELHI—Online food delivery aggregator Zomato’s recent decision to make it mandatory for its ‘delivery partners’ to use the controversial Aarogya Setu app violates their autonomy and constitutional right to privacy, legal experts told HuffPost India.
The leading food delivery aggregator’s decision, the experts said, fails to take into account the delivery partners’ consent in deciding whether or not to download the app and their constitutional right to privacy, which includes making a decision about whether they would like to part with any of their personal information.
According to the experts, Zomato can afford to neglect workers’ autonomy because, like most players in the gig economy, it has circumvented India’s complex regime of labour laws, resulting in inequitable conditions of service in an overall context where workers already have limited bargaining power.
HuffPost India has reached out to Zomato with questions regarding these concerns voiced by legal experts. This report will be updated if the company responds.
On April 22, Zomato CEO Deepinder Goyal posted a tweet thread announcing the company’s decision to mandate its delivery partners to install and use the government’s Aarogya Setu smartphone application. Goyal said the decision fulfilled two objectives: a) authorities will be alerted at the earliest if a delivery person came in contact with a person infected by coronavirus or if he entered a hotspot area and b) customers can know that those who deliver their food are “most likely safe and aware”.
HOW ZOMATO WORKERS GET SHORTCHANGED
Speaking about the two objectives, advocate Aditya Chatterjee, who has worked on both labour laws and aggregator technology related issues, said, “The problem with both the above reasons is that they ignore the delivery person’s autonomy in deciding whether or not he wants to download the app. Downloading the app necessarily means parting with some aspects of your privacy, for which the app seeks your consent.”
Given that privacy has been held to be a fundamental right by the Supreme Court, he argued, it is up to each individual’s “right of choice” to decide what aspects of his privacy he or she is willing to part with voluntarily. “Therefore, the key elements of privacy and autonomy (implying voluntary choice) are crucial here.”
To “bundle up”, Chatterjee explained, the delivery partner’s ability to earn his livelihood with the installation of an app leaves little room for free choice—especially since alternative work and bargaining power are limited while a national lockdown is in force.
To “bundle up” the delivery partner’s ability to earn his livelihood with the installation of an app leaves little room for free choice—especially since alternative work and bargaining power are limited while a national lockdown is in force.
Online aggregators can do this because of the peculiar legal relationship between them and the workers, whom they refuse to term employees—they are called ‘driver partners’ (in the case of cab aggregators) or ‘delivery partners’ (in the case of food delivery aggregators).
Advocate Apar Gupta, executive director of the Internet Freedom Foundation, explained how the overall hiring practices adopted by India’s private sector enable them to get around the current labour legislation.
“India’s present labour laws, to a large degree, have been circumvented by a lot of businesses by employing sub-contractors by creating third-party companies who employ workforce which then services a larger corporate entity. So they act as an intermediary for regulatory compliance, thereby ensuring that there is one degree of separation at least in terms of a legal fiction. Which is why, quite often, the enforcement that happens of labour laws is very weak given the modern gig economy,” he said.
Speaking specifically in context of the practises adopted by firms such as Zomato in the gig economy, Gupta said, “Structures are made in which people are not considered to be the workers for a corporate entity, but are actually considered to be contractual at-will workers. So this distinction by itself results in a very weak position by which the benefit of certain labour laws and standards are not available to them. It can actually result in the contract by itself resulting in a condition of service which may be inequitable and cannot be then remedied through the existing labour laws and standards.”
Drawing on his experience of working on labour and aggregator technology related issues, Chatterjee explained how workers are short-changed in this model.
“Almost all the work in the gig economy is based on contract. The traditional workplace is not there and aggregator platforms argue that they are not employers; and drivers, delivery personnel and other forms of gig workers are not their employees,” he said.
This is why most labour laws are inapplicable to these firms. But, he pointed out that some aggregator platforms do exercise significant control over gig workers on their platforms.
“They do decide how much the worker gets paid (it is not like the worker negotiates his rate with the end receiver of his service), the end customer pays through the app and payments work roughly along the commission model.”
The current labour law regime, the Delhi-based lawyer said, “does not cover such work (which) is mostly unregulated.”
ALTERNATIVES TO THE AAROGYA SETU APP
Both Gupta and Chatterjee said the app was not essential for contact-tracing of workers delivering food for customers of online aggregators.
“The aggregator’s platform is sufficient to track whether a delivery person has visited a hot spot or not,” said Chatterjee.
He also pointed out the flaw in the argument by the Zomato CEO that customers will be able to tell if the delivery staff is infected or feel reassured that he is not if the Aarogya Setu app is downloaded on his phone. “It assumes that every person that the delivery person is likely to come in contact with in discharge of his tasks (for which he is on the aggregator’s platform) will also have the Arogya Setu app,” he added, pointing out that not all customers of food delivery apps necessarily will have it on their phones.
Gupta cited the example of the worker who delivered food which was booked on the Zomato platform in South Delhi and was subsequently detected with the coronavirus.
“It makes me ask and wonder whether we need such advanced technologies like smartphone applications which have real-time surveillance capability or do we need some old measures and methods of basic healthcare such as taking the temperature of all people who are in the active workforce given the present quarantine,” he said.