Contours of data protection in India: the consent dilemma

Amid the rapid advancement of digital technology in India, there is a growing concern regarding data protection and digital privacy. The recent DPDP Act 2023 also reflects the significant emphasis on a robust privacy practice. This paper examines the effectiveness of consent, a crucial principle and a subject of many debates in data privacy regimes. Despite being a cornerstone of privacy regimes globally, the consent-based approach has significant limitations. For instance, its binary character allows for a yes or no response and its inability to guarantee data subjects to make an informed choice. The study is set against the prominent data breaches and the Indian Government’s effort to strengthen data protection measures. The study also examines the theoretical and legal aspects of consent by analysing the fundamental ideas that form the basis of the DPDP Act, 2023, protecting the consent framework. It questions whether the current form of the Act aligns with the landmark Privacy Judgement. It concludes by exploring alternative and more adaptable mechanisms for implementing informational privacy that might effectively address the specific issues in the Indian context while taking inspiration from other jurisdictions like the EU.