Unravelling the role of autonomy and consent in privacy

Sabestian, John and Sen, Aparajito (2020) Unravelling the role of autonomy and consent in privacy. Indian Journal of Constitutional Law, 9. pp. 1-37.

[thumbnail of IJCL2020 (2).pdf] Text
IJCL2020 (2).pdf - Published Version
Restricted to Repository staff only

Download (2MB) | Request a copy


It has been widely acknowledged that consent is central to the right to privacy. This has been recognised by the Supreme Court in Justice K.S. Puttaswamy v. Union of India (2017), as well as in the Personal Data Protection Bill, 2019 (currently pending in Parliament). While several studies have mentioned the difficulties of obtaining informed consent in today's world, there has been little discussion on the precise role of consent within a privacy rights analysis. We will attempt to explore this crucial and under-theorised issue through an analysis of the Court's recent constitutional jurisprudence. Underlying the recognition of the right to privacy have been the values of dignity, autonomy and liberty. We argue that the Court has recognised an autonomy-rich conception of dignity, which focuses upon an individual's continued capacity to make autonomous choices. This both enhances and limits the role of consent in privacy while consent is an important factor to be considered by courts, it does not completely determine whether a person can effectively claim a right to privacy. We then situate this understanding of consent within the doctrinal tools adopted by the Court to adjudicate privacy claims the reasonable expectations test and proportionality. We argue that consent plays a key role in both these tests. Consent is an important variable, but does not operate in an 'all-or-nothing'manner, and has to be balanced with other factors such as the autonomy of the individual, public interest and the rights of others. This has important implications for assertions of privacy in the future.

Item Type: Article
Keywords: Right to privacy | Puttaswamy | Data protection bill 2019 | Consent | Dignity
Subjects: Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Global Law School
Depositing User: Mr. Syed Anas
Date Deposited: 29 Mar 2022 06:12
Last Modified: 16 Dec 2022 06:07
Official URL: https://heinonline.org/HOL/P?h=hein.journals/ijcl9...
URI: https://pure.jgu.edu.in/id/eprint/1905


Downloads per month over past year

Actions (login required)

View Item
View Item