INTRODUCTION TO FREE CONSENT
The most important element of any contract is consent. The principle of ‘Consensus ad idem’, which means meeting of the minds, constitutes the basis for a valid and enforceable contract. With the rise in e-commerce and technological development, a new branch of contract has emerged called ‘e-contracts’ or digital contracts, which refers to contracts entered through digital and electronic means. In today’s era, we engage in e-contracts daily, whether it is ordering food online or opening any website by agreeing to the terms and conditions with a single click. How many times do we actually read the agreements? A Deloitte survey of 2,000 U.S. consumers in 2017 found that 91% of people consent to terms of service without reading them. [1]
While the legal framework governing consent remains unchanged, the manner in which consent is obtained has transformed. It becomes pivotal to understand this shift to examine the validity of consent in e-contracts and whether they are truly based on the will of the consumer or merely a forced choice.
ANALYSE THE DIGITAL PERSONAL DATA PROTECTION ACT
The Digital Personal Data Protection Act, 2023 (DPDPA) aims to strengthen the legal framework for storing, collecting and using digital personal data. The foundation of the current regulatory regime lies in the Digital Personal Data Protection Act, 2023, while subsequent rules notified in 2025 operationalised its implementation.[2] , creating new provisions for protecting the data privacy and autonomy of individuals. Section 6 of the DPDPA,2023 mandates free and informed consent, and Section 5 of DPDPA,2023 requires data fiduciaries to give a clear notice for the purpose of collecting data, its type and how to exercise rights over the data.[3] The issue with these privacy notices is that they are too lengthy, and the technical jargon is not understood by ordinary users, leading to consent becoming a routine click. Since withdrawing the consent will lead to the end of the contract, users are discouraged from exercising their right.
One of the major weaknesses of this act is Section 7 of the act, which introduces “deemed consent”. As per the act, consent is assumed by the law for specific purposes like state functions and public interest. This exposes the vague nature of the act, contradicting Article 6 of DPDPA,2023.[4] which ensures free consent. When the consent is already assumed to be given, the individual does not exercise active decision-making through their own conscience but is merely a passive data subject. Another major loophole is that there is no independent right to be forgotten. Once the consent is taken by the third parties, individuals don’t exercise the right to remove the information, which further raises concerns in digital contracts by making consent a one-time thing.
PHYSICAL V DIGITAL CONSENT
Right to privacy is a fundamental right under Article 21 of the Indian Constitution. [5]which has been developed through various Supreme Court cases and is mainly recognised in K.S. Puttaswamy v Union of India[6] which later became the foundation for digital consent, data protection and informational privacy under the Indian law. Sections 13 and 14 of the Indian Contract Act, 1972[7]Emphasise that a valid contract must involve a true meeting of minds, which is free from coercion, undue influence, fraud and misrepresentation.
This understanding of consent is reflected in Chikkam Ammiraju v Chikkam Seshamma.[8], where consent was considered to be invalid because the acceptance was given under coercive circumstances. Similarly, in Specht v. Netscape Communications Corp., the U.S. Court of Appeals held that users were not bound by a software license agreement’s arbitration clause because the terms were not reasonably conspicuous or explicitly presented before download.
Unlike Physical contract, which offer a space for negotiation and consider unequal bargaining power, the same cannot be said to be true for digital contracts, which are take-or-leave forms of contracts. Supreme Court’s approach in these landmark cases shows that the consent in Indian law is examined by taking various factors like circumstances of the case, power imbalance and capacity of the individual into consideration. However, digital contracts rely on technological convenience and diminish the constitutional understanding of what actually constitutes real consent.
THE WAY FORWARD
In the era of technological advancement, even though click-wrap electronic agreements are valid under the law, there persists a questionable gap between legal consent and real consent. The digital Personal Data Protection Act, 2023, is a much-needed step that emphasises user autonomy and protects individuals’ data, but it falls short with several structural and provisional limitations. To address these shortcomings, major steps are needed to redefine true consent.[9]
- Instead of complicated and confusing language, e-contracts should keep the key terms in such a way that is accessible, simple and could easily be understood by the users.
- Users must also have the right to revisit and revoke their consent if they wish to do so
- Another significant step is the acknowledgement of unequal bargaining power by the law and the incorporation of principles of fairness and justice, similar to those in physical contracts.
- Another crucial measure is to hold the institutions accountable. Clear limits need to be set on data collected by the government to ensure it is done reasonably and proportionately.
- Third party Institutions need to be held accountable, and clear limits must be imposed on data collected by the government to ensure that it is done reasonably and proportionately.
- Users should adopt a more cautious approach towards consent instead of clicking “I agree” without reading the terms.
- They should focus on key aspects such as the purpose and storage of data to improve awareness and reduce uninformed consent.
- Users should actively exercise their rights under data protection laws and prefer platforms with high credibility and transparency.
CONCLUSION
The authenticity of digital contracts depends on how effectively they capture individual will. With more and more users engaging in e-contracts, the consent needs also evolve into a meaningful expression of the user’s informed choice. This will help e-contracts align with the principle of free consent, dignity and privacy, as enshrined in the Indian Constitution and the Indian Contract Act.
Author(s) Name: Tanzeel Fatma (Hidayatullah National Law University)
References:
[1] Jessica Guynn, ‘What you need to know before clicking ‘I agree’ on that terms of service agreement or privacy policy’ (USA Today, 28 January,2020) <https://www.usatoday.com/story/tech/2020/01/28/not-reading-the-small-print-is-privacy-policy-fail/4565274 >accessed 2 February 2026.
[2] Digital Personal Data Protection Act 2023.
[3] Ibid, s 5 & 6.
[4] Ibid, s 6 & 7.
[5] Constitution of India 1950, art 21.
[6] Justice KS Puttaswamy (Retd) v Union of India (2017) 10 SCC 1.
[7] Indian Contract Act 1872, s 13 & 14.
[8] Chikkam Ammiraju v Chikkam Seshamma (1917) 41 Mad 33.
[9] Digital Personal Data Protection Act 2023.
