Traditional concepts place consent at its core, which are actually insufficient in modern algorithmic age. Modern digital ecosystems demand continuous and extensive processing of the data while often undermining the right of privacy and free speech of the society in the digital space. The consent rather than being mere formality must embody autonomy, contrary to which the current legal system is flawed enough which creates a constitutional vacuum, allowing both the State and private institutions to operate within the illusion of lawful consent.
This paper critically examines the illusion of consent, within India’s data protection regime, particularly under Digital Personal Data Protection Act, 2023. While analysing the depth of Article 19(1)(a) and Article 21 of Constitution of India which also aligns with the judgements such as K.S. Puttaswamy v. Union of India and Anuradha Bhasin v. Union of India and by comparing India’s approach with the EU’s GDPR’s framework, the study identifies the lack of algorithmic profiling and absence of robust oversight in the structural framework. It concludes that the Privacy and free speech could ultimately be rethought as per the constitutional standards of autonomy, proportionality and proper oversight.
