Consent, Autonomy, and Constitutional Foundations
The concept of consent is a foundational pillar of modern liberal democracy, law, and ethics. H.L.A. Hart described consent as the point at which law respects an individual’s capacity to choose for themselves, even when that choice carries risk or disadvantage. Consent is a fundamental concept that occupies a central position in medical settings, contractual agreements, personal interactions, legal reasoning, and across multiple branches of law, including criminal law, contract law, and constitutional theory. Indian constitutional jurisprudence echoes this view profoundly, which can be observed in the light of the Right of Personal Liberty and Right of Privacy enshrined within Article 21 of the Indian Constitution.
The Supreme Court has repeatedly linked consent to decisional autonomy, holding that the ability to make meaningful choices is an inseparable part of personal liberty under Article 21[1]. In K.S. Puttaswamy v. Union of India[2]. The Court emphasised that autonomy loses its substance when choices are shaped without awareness or genuine control. Consent, in this sense, is not just about formal agreement but about the conditions under which that agreement is formed. A decision is considered ethically and legally sound only if it is informed and freely given. Yet, this bedrock principle is under unprecedented strain in digital environments.
The traditional notion of consent advocates for the ideology that a person has the right to opt to either accept or abstain from a proposed term or condition, yet the contemporary digital web is at a striking dichotomy with the concept. A person encounters a myriad of requests from numerous applications to grant them consent to access that very individual’s personal data, for instance, images, contacts, and location etc., and one of the most common yet quintessential for this article being “Cookies”.
Cookies and the Illusion of Choice
Cookies are one of the core areas where Article 21 of the Constitution is disregarded, and the right to privacy is being legally infringed due to the scarcity of a statutory framework. Article 21 explicitly emphasizes the necessity and sanctity of the “Right to Privacy”, and dictates that privacy is an essential aspect of personal liberty and dignity, and is intrinsic to the entire constitutional scheme; however, when we dive deeper into the actuality of cookies, it would be as clear as a crystal that they are not what they apparently seem to be. Generally, people see them and think that they are just a permission to enter the website, and people turn a blind eye to the fact that this very “permission” is costing them their digital privacy, and the severity of the subject matter can be comprehended by the fact that many people, despite being reluctant to agree to such terms, are compelled to grant their consent reason being the blockaded access to the data they need.
Free Consent Under the DPDP Act: Law and Reality
The DPDP Act, 2023 mandates that the “Data Principal” has the right to accept the circulation of his private information at his “free consent”, and currently, the cookie policies being adopted by websites are known to propel the users to give their consent rather than seeking “free consent”, as the cookie banners are known to provide only two options, either “Accept All”, or “Accept Useful Cookies”, which leaves the user with no option but to accept these policies either at their maximum or partial extent.
Essentially, cookies are small code files downloaded to users’ devices by the websites they visit. Cookies track visitor activity and provide personalisation, which is generally of two types: first-party and third-party. The former are accessible only by the domain that created them; the latter are accessible by all the websites that load a third-party server’s code, allowing such third-party cookies to be tracked by websites other than those an individual visits. This feature enables businesses to track the activities of site visitors and collect, process, and manage their personal data. Most significantly, it enables advertisers to target advertisements at the right viewers.
[1] INDIA CONST. art. 21.
[2] Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 S.C.C. 1 (India).