Right to Choose or Choice of the Privileged?
Indian Constitutional law is fundamentally agnostic to the “prestige”, or “societal respect” associated with a vocation. Article 19(1)(g) guarantees every citizen the right to practice any profession or engage in any occupation, trade, or business. In Sodan Singh, the Supreme Court emphasized that the right to carry on a trade is a fundamental right, which legally underpins the validity of content creation as legitimate work, just as it does for traditional vocations. The Court has clarified that this freedom extends beyond the mere act of earning a living; it includes aspects of autonomy, identity, and dignity.
This provision applies equally to those who aspire to be civil servants and to those who want to be YouTubers. In the Sodan Singh v. New Delhi Municipal Council, emphasized that the right to carry on a trade is a fundamental right that underpins the validity of content creation as legitimate work. The Supreme Court has clarified that this freedom extends beyond the mere act of earning a living; it includes aspects of autonomy, identity, and dignity.
However, the reality of exercising this right is heavily gated. Success as a creator is predicated on access to high-speed internet and expensive technology. In a country where the “digital divide” remains stark, and urban internet penetration significantly outpaces rural access, the choice of vocation is unequal. This is where Article 21, read alongside the Supreme Court’s recognition of the right to internet access in Anuradha Bhasin, becomes crucial. If the internet is an enabler of fundamental rights, the State has a constitutional mandate to implement policies that ensure the choice of becoming a creator is accessible regardless of socio-economic background. Ultimately, the law does not take a side on whether the traditional ‘hustle’ is nobler than ‘hashtags.’ Constitutional rights are blind to societal prestige. The law’s only concern is equitable access; it mandates that the State actively dismantle structural barriers, such as the digital divide, so that pursuing a digital livelihood is an accessible reality for everyone, not merely an inherited privilege.
this right is not absolute. Articles 38 and 39 obligate the state to reduce inequalities and ensure equal opportunities. This is where Article 15(4), which allows for special provisions for the advancement of disadvantaged groups becomes crucial. While this principle traditionally justifies reservations for SC/ST/OBCs in competitive examinations and public jobs, it also provides a constitutional mandate for the state to address the Digital Access Gap. Success as a creator is often predicated on access to high-speed internet and expensive technology. In a country where the “digital divide” remains stark, urban internet penetration is significantly higher than the rural, the State has a legal duty to implement policies that ensure the choice of becoming a creator is accessible regardless of their socio-economic background. The law does not take a side on whether “hustle is nobler than hashtags”; it simply mandates that the State makes both paths viable choices for all.
Real or Reel Work?
In the Indian legal imagination, “labor” is typically synonymous with office jobs, factory shifts, and defined contracts. This traditional mold is heavily regulated. When standards slip in these sectors, the judiciary intervenes, as seen in recent controversies surrounding CLAT 2025 and NEET 2024, where the fairness of national exams were challenged in court.
In contrast, the Creator Economy, valued globally at over $250 billion, operates in a space that is largely deregulated. While creators use Copyright Act, 1957, and the Trademarks Act, 1999, to protect their intellectual property, they lack the basic safety nets offered by traditional labour laws. There is no legal recourse if a platform’s algorithm suddenly suppresses a creator’s reach or if a brand fails to pay for the services rendered.
This lack of recognition echoes the struggles of India’s broader gig workforce. According to NITI Aayog, India’s gig workforce is expected to grow to 23.5 million workers by 2029-30, accounting for roughly 4.1% of the country’s total workforce. While, the Code on Social Security (2020) legally defined “gig worker” and promised access to welfare schemes, implementation remains stalled at the preliminary state level. Consequently, millions of workers remain in a state of “regulatory limbo”.
As Justice Krishna Iyer affirmed in Gujarat Steel Tubes v. Gujarat Steel Mazdoor Sabha, dignity, not just a contract, defines real work. The current gap in legal recognition is not a failure of the worker, but a failure of the law to adapt to the modern definition of labour.
In the Indian legal imagination, ‘labour’ is typically synonymous with office jobs, factory shifts, and defined contracts. This traditional mold is heavily regulated by courts using the classic supervision and control test established in Dharangadhra Chemical Works to determine employer-employee relationships. Fundamentally, a content creator is an independent entity, a digital freelancer who operated outside the traditional bounds of employment.
Because creators are independent, the traditional framework of employer-employee doesn’t apply. However, this independence is often an illusion. When creators engage in sponsored content, brands exert significant financial and creative control over the deliverables, shifting the dynamic from mere expression to a strictly regulated commercial service. Even more pervasive is the control exerted by the platforms themselves. While a platform is not legally an ‘employer’, its algorithm acts as a de facto manager, dictating reach, determining monetization, and possessing the power to financially penalize a creator without any procedural fairness or human review.
This algorithmic dependency is exactly what bridges the gap between digital content creators and gig workers. We propose that the legal isolation of creators can be solved by viewing them through the lend of the Code on Social Security (2020). The code defines a ‘gig worker’ as someone who earns from activities outside traditional employment, a ‘platform worker’ as someone who uses an online algorithmic matching platform to solve specific problems or provide services. Just as the Supreme Court is currently examining the rights of delivery and transport gig workers to access social security in IFAT Workers, the law must expand its horizon. A creator generating revenue though a platform’s ad-sharing ecosystem fits the legislative intent of a platform worker. Bringing content creators under the protective umbrella of the gig economy is not just a theoretical exercise; it is a necessary evolution to ensure that millions of digital workers are not left in regulatory limbo.
Business or Hobby?
A significant legal friction point exists in how the State perceives the income of creators. The State has been quick to bring digital content creation under strict revenue compliance. Creators are subject to Goods and Services Tax on income exceeding ₹20 lakh, and Tax Deducted at Source is levied on barter deals and promotional gifts. While the mere regulation and taxation of income generated from a transaction does not legally classify creators as formal businesses under labor laws, it does demonstrate the State’s clear recognition of content creation as a highly structured, lucrative economic activity rather than a casual hobby.
This creates a glaring regulatory asymmetry that warrants scrutiny under Article 14. For any State action or legislative omission to be valid, there must be an intelligible differentia with a rational nexus to the objective. Currently, the State imposes heavy commercial compliance burdens on the individual creator yet leaves the aggregators entirely unregulated regarding their labor practices. Treating a creator’s output as formal commerce for the purpose of taxation, while simultaneously treating their labor input as informal, unprotected ‘usage’ of a platform, creates an arbitrary divide. There is no rational nexus in recognizing the economic value of the digital ecosystem while actively ignoring the rights of the workers who sustain it. versus their status. Unlike salaried employees who receive Provident Fund (PF) and paid leaves, creators are increasingly taxed like corporations. They are subject to GST on income exceeding ₹20 lakh, Tax Deducted at Source (TDS) on barter deals and promotional gifts. This raises a question under Article 14 (Equality before the Law). For a legal classification to be valid, there must be an “intelligible differentia” with a “reasonable nexus” to the objective. If the State treats creators as “small businesses” for taxation, it is arguably discriminatory to treat them as “casual freelancers” when it comes to social security and protection from exploitative platform contracts. The current system fails this test of reasonableness.
merit or privilege?
The debate pitting creators against exam aspirants often centres on “merit.” In Indra Sawhney v. Union of India, the Supreme Court asserted that merit cannot be separated from social context.
This is why reservations exist, to ensure that those starting the race ‘10 steps behind’ are not unfairly judged against those at the front. Traditional paths like the UPSC or NEET are perceived as the ultimate ‘grind’ and a rare avenue for upward mobility. However, the Creator Economy rewards visibility, aesthetics, technical skills, social media proficiency, and so on. It often favors individuals who already have access to social networks that can enhance their performance. Furthermore, it does not commence everyone at the same starting point; it merely conceals the inequality behind the algorithmic allure.
Therefore, when critics claim that “influencers have it easy” or “exams are the real grind,” they overlook the volatility and mental health toll of the attention economy. Conversely, when creators dismiss traditional paths, they overlook the structural security those parts provide. The law recognises the individual’s choice but currently offers more robust protection to the “system” for which the law was originally designed.
Are Creators Being Taken Seriously by the Law?
The Indian Government increasingly acknowledges the massive cultural and economic output of the creator economy. However, current regulatory interventions, such as the guidelines issued by the Advertising Standards Council of India (ASCI) and the Central Consumer Protection Authority (CCPA) mandating the disclosure of sponsored content, are fundamentally mechanisms of consumer protection, not occupational recognition. The State eagerly regulates the creator’s impact on the public, yet it entirely ignores the creator’s status as a worker.
Content creation requires sustained effort, technical proficiency, and significant capital investment, bearing all the hallmarks of a legitimate “profession” under Article 19(1)(g). However, unlike traditional professions that benefit from institutional scaffolding, creators are legally classified by the Information Technology Rules, 2021, merely as “users” of a platform. They bear the heavy compliance burdens of a regulated business but enjoy none of the corresponding statutory protections afforded to formal labor.
This creates a profound recognition gap. If a consumer is misled by a sponsored post, they have direct statutory recourse against the creator. Conversely, if a platform’s algorithm arbitrarily demonetizes a creator’s life’s work or unjustly terminates their account, depriving them of their livelihood, there is no corresponding “Digital Labour Court” or specialized tribunal to hear the grievance. Until the law elevates content creators from mere “platform users” to recognized “digital professionals”, thereby extending the umbrella of labor and gig-worker protections to them, they will remain heavily policed targets, but fundamentally unprotected participants, in India’s legal discourse.
The Indian Government is increasingly recognizing content creation as a part of the mainstream economy, showcasing the country’s rich heritage, culture, languages, and literature. For example, the government has started to take creators seriously by imposing regulations, such as those issued by the Advertising Standards Council of India and the Central Consumer Protection Authority, which require influencers to disclose sponsored contents. Furthermore, the Digital India Act imposes regulations on how platforms operate, including monetization policies and algorithms. This shift signals that the law is beginning to view content creation as a legitimate, regulated business.
While these are steps toward legitimacy, a “recognition gap” remains. If an exam is leaked, a student can go to court but if an algorithm demonetises a creator’s life’s work without explanation, there is currently no specialised tribunal or “Digital Labour Court” to hear the grievance. Until the law addresses algorithmic bias and platform accountability, creators remain “second class” participants in the legal discourse.
Conclusion
The fundamental question facing India’s workforce is not “Who is working harder?” but rather “Does our law recognise the work being done?”
The Indian legal system aims to safeguard freedom of choice and equitable treatment, yet it currently operated on a profound regulatory asymmetrywhile ensuring equitable treatment. It eagerly taxes digital innovation and strictly polices content for consumer protection but entirely fails to extend statutory labour protections to the digital professionals driving this economy. It does not and should not bestow accolades on “respectable” traditional jobs while dismissing digital innovation. However, a transition is required. We are moving toward a hybrid, precarious workspace where the old definitions of “employer” and “employee” are dissolving.
A transition is urgently required. We have entered a precarious workspace where the traditional definitions of employer and employee have dissolved, replaced by algorithmic control and platform aggregators. To ensure constitutional fairness, the State must bridge this recognition gap. It must move beyond treating creators merely as taxable businesses or vulnerable platform users and formally integrate them into the protective framework of the Code on Social Security (2020) as legitimate platform workers. Only by shifting the focus from mere compliance to active protection can we bridge the divide between the “hashtag” and the “hustle,” ensuring that every Indian worker, whether preparing behind a desk, navigating the gig economy, or creating behind a camera, is economically and legally secure.
To ensure fairness, the State must move beyond mere taxation of the digital economy and toward the protection of its participants. Only then can we bridge the divide between the “hashtag” and the “hustle” ensuring that every Indian worker, whether behind a desk or a camera, is economically and legally secure.