The centrality of consent in India’s digital data protection framework, particularly under the Digital Personal Data Protection Act, 2023 (DPDP Act), is increasingly being questioned by legal scholars and practitioners. While the law places heavy reliance on user consent as the primary basis for data processing, experts argue that the idea of “meaningful consent” remains deeply problematic in practice.
The debate now extends beyond statutory compliance to a more fundamental concern—whether consent, as currently structured, can truly safeguard informational privacy in complex digital ecosystems.
The illusion of informed consent
A key concern highlighted in legal discourse is that most users do not meaningfully engage with privacy policies or terms of service.
Lengthy, technical, and often ambiguous privacy agreements contribute to what is widely described as “consent fatigue”, where users mechanically click “agree” without understanding the implications.
This raises doubts about whether such consent satisfies the legal standard of being “free, informed, specific, and unambiguous”, as envisioned under modern data protection frameworks.
The problem is not merely behavioural but structural—users are often overburdened with information yet under-informed in substance.
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Judicial recognition of privacy and consent
The debate around consent must also be situated within India’s constitutional jurisprudence, particularly the landmark judgment in Justice K.S. Puttaswamy v. Union of India.
In this case, the Supreme Court recognised the right to privacy as a fundamental right under Article 21, emphasising informational self-determination as a core component of personal liberty.
However, the judgment also implicitly acknowledged that consent alone cannot be the sole safeguard, especially where there exists an imbalance of power or lack of real choice.
Similarly, in K.S. Puttaswamy (Aadhaar-5J.) v. Union of India, the Court examined the limits of consent in the context of Aadhaar-based data collection.
The ruling highlighted concerns around coerced consent and function creep, where individuals may be compelled to share data to access essential services, thereby diluting the voluntariness of consent.
Power imbalance and coercive consent
A major critique of the consent framework lies in the asymmetry between data principals (users) and data fiduciaries (platforms and corporations).
In practice, users often face a “take-it-or-leave-it” situation, where refusal to consent may mean denial of access to essential digital services. This creates a form of constructive coercion, undermining the voluntariness that consent is supposed to embody.
Such imbalance raises serious concerns about whether consent can genuinely function as a tool of user autonomy, or whether it merely legitimises data extraction practices.
Limits of consent in data-driven ecosystems
Modern data ecosystems are highly complex, involving:
- Multiple layers of data sharing
- Algorithmic profiling and behavioural tracking
- Cross-border data flows
In such a scenario, expecting individuals to fully comprehend and control how their data is processed is both unrealistic and impractical.
Legal experts argue that this over-reliance on consent shifts the burden of data protection from institutions to individuals, who are often ill-equipped to manage it.
Towards a more balanced data protection regime
There is a growing consensus that consent must be supplemented by robust regulatory and institutional safeguards.
These include:
- Stronger accountability obligations for data fiduciaries
- Purpose limitation and data minimisation principles
- Transparent and auditable data practices
- Independent oversight by regulatory authorities
Rather than treating consent as a complete solution, experts suggest it should function as one element within a broader framework of data governance.
The way forward
India’s DPDP Act represents a significant step in codifying data protection norms, but its effectiveness will depend on how the concept of consent is operationalised.
Legal scholars emphasise that true data protection lies not in formalistic consent mechanisms, but in ensuring substantive fairness, accountability, and user empowerment.
As digital technologies continue to evolve, the law must move beyond checkbox compliance and address the deeper structural challenges that define the modern data economy.
About the author – Rehan Khan is a law student and legal journalist with a keen interest in cybercrime, digital fraud, and emerging technology laws. He writes on the intersection of law, cybersecurity, and online safety, focusing on developments that impact individuals and institutions in India.
