Concerns of Persons with Disabilities Over DPDP Rules

Syllabus:

GS – 2– Digital India, Personal data protection act , Disability rights

Focus :

The article delves into the concerns raised by disability rights activists regarding the Digital Personal Data Protection (DPDP) Act, 2023, particularly its draft rules that mandate legal guardian consent for adult Persons with Disabilities (PwDs). It examines how this provision affects the autonomy of PwDs, the legal framework governing guardianship, and the broader implications on digital rights and accessibility.

Concerns of Persons with Disabilities Over DPDP Rules

Introduction

  • The Ministry of Electronics and Information Technology (MeitY) has released draft rules for the Digital Personal Data Protection Act, 2023.
  • The deadline for public consultation on these rules is March 5, 2025.
  • Disability rights activists argue that a specific provision in the draft rules undermines the autonomy of PwDs by treating them similarly to children.
  • The provision mandates that personal data processing for PwDs with legal guardians must be consented to by the guardian.
  • Experts claim this reflects a flawed understanding of disability and guardianship.

Overview of the Digital Personal Data Protection (DPDP) Act, 2023

Objective of the Act

  • The DPDP Act aims to regulate the processing of digital personal data.
  • It seeks to balance:
    • The right of individuals to protect their data.
    • The need for lawful processing of such data for various purposes.

Key Definitions in the Act

  • Data Fiduciary: An entity or person that processes personal data.
  • Data Principal: The individual whose data is being collected.
  • Legal Guardian (for PwDs): Included under the definition of Data Principal, meaning a guardian may act on behalf of the PwD.

The Controversial Provision: Section 9(1) of the Act

What Does Section 9(1) State?

  • It mandates that before processing the personal data of:
    • A child, or
    • A PwD who has a lawful guardian,
  • The Data Fiduciary must obtain verifiable consent from the parent (for children) or the legal guardian (for PwDs).

Issues with Section 9(1)

  • Clubs PwDs with children, assuming they lack decision-making capacity.
  • Fails to differentiate between different types and severities of disabilities.
  • Overrides the autonomy of PwDs, even if they can make independent decisions.
  • Legal guardianship is not mandatory for all PwDs, yet the provision applies broadly.

Draft Rules Under the DPDP Act and Their Impact on PwDs

Rule 10: Implementing Section 9(1)

  • Rule 10(2) specifies that:
    • A Data Fiduciary must verify that a guardian is appointed by a court, designated authority, or local committee.
  • Rule 10(3) includes PwDs under this provision if they:
    • Have long-term physical, mental, intellectual, or sensory impairments that prevent them from making legally binding decisions, OR
    • Have conditions like autism, cerebral palsy, mental retardation, or severe multiple disabilities.

Concerns Raised by Activists and Experts

  • The provision applies to a broad category of PwDs without clear guidelines.
  • No detailed illustrations are provided on how consent should be taken for PwDs, unlike the case for children.
  • Ambiguity in implementation could lead to exclusion of PwDs from digital platforms.

Understanding Legal Guardianship for PwDs in India

The Two Relevant Laws on Guardianship

  • Applies to PwDs with:
    • Autism
    • Cerebral palsy
    • Intellectual disabilities
    • Multiple disabilities
  • Provides for full guardianship, meaning the guardian makes all decisions.
  • Criticized for contradicting the principles of the UN Convention on the Rights of Persons with Disabilities (UNCRPD).

Rights of Persons with Disabilities (RPWD) Act, 2016

  • Applies to PwDs with long-term impairments affecting physical, mental, intellectual, or sensory abilities.
  • Provides for limited guardianship, meaning:
    • The PwD can participate in decision-making.
    • The guardian assists only when the individual lacks capacity.
  • Aligns with UNCRPD principles.

Conflict Between the Two Laws and DPDP Act

  • Most PwDs under guardianship are governed by the RPWD Act, which allows for shared decision-making.
  • The DPDP Act, by treating all PwDs with legal guardians as entirely dependent, disregards the RPWD framework.
  • In cases under the NT Act, the DPDP provision further erodes PwD autonomy by granting complete control to guardians.

Survey Insights: Guardianship and Digital Rights

Findings from a Survey by PACTA and Saksham Disability

  • Sample Size: 91 PwDs
  • Key Statistics:
    • 4% had legal guardians.
    • Most were under limited guardianship (RPWD Act).
    • Many reported that, in practice, their guardians controlled all aspects of their affairs.

Issues Identified in the Report

  • The DPDP Act assumes that having a guardian means lacking digital decision-making ability.
  • The provision could lead to scenarios where:
    • A PwD woman may need her guardian’s consent to buy sanitary products online.
    • Guardians may control online banking or social media access.
  • Gender and disability intersectionality is ignored.

Broader Concerns Over the DPDP Act for PwDs

Key Concerns

  • Legal Ambiguity for Guardians
    • What legal obligations do guardians have?
    • Can a guardian refuse consent for a specific platform?
  • Data Privacy Concerns
    • To comply with the provision, platforms must ask:
      • Whether a user has a disability?
      • Whether they have a legal guardian?
    • If a person has a disability but no guardian, the platform still collects disability data unnecessarily.
  • Legal Accountability of Guardians
    • If a guardian is considered a Data Principal, do they bear full legal responsibility?
    • This could lead to conflicts of interest, where guardians act in self-interest instead of PwD welfare.
  • Digital Accessibility Barriers
    • Beyond legal issues, many platforms remain inaccessible to PwDs.
    • A 2023 study by Vidhi Centre for Legal Policy found poor accessibility scores for major apps like Paytm, Swiggy, Zomato, and Flipkart.

Possible Solutions and Recommendations

  • Remove the blanket assumption that all PwDs with guardians lack decision-making capacity.
  • Specify that Section 9(1) applies only in cases where a PwD is legally declared incapable of making digital decisions.
  • Align DPDP provisions with the RPWD Act’s limited guardianship model.
  • Clearly define consent procedures for different disabilities and severity levels.
  • Introduce a self-declaration system for PwDs who can manage their data independently.
  • Mandate platforms to improve accessibility, ensuring PwDs can navigate digital spaces without excessive barriers.
  • Enforce accessibility audits for major online services.

Conclusion

  • While the DPDP Act aims to protect digital personal data, its provisions risk infringing on PwD autonomy.
  • The assumption that legal guardianship equals incapacity is flawed.
  • Without amendments, the Act could reinforce digital exclusion instead of empowerment for PwDs.
  • A balanced approach, integrating accessibility and autonomy, is essential to uphold the rights of PwDs in the digital sphere.

Associated Article

https://universalinstitutions.com/pictured-with-dignity-supreme-courts-framework-for-sensitive-portrayal-of-persons-with-disabilities/

Mains UPSC Question GS 2

“Discuss the concerns raised by disability rights activists regarding the Digital Personal Data Protection (DPDP) Act, 2023. How do the provisions of the Act intersect with the legal framework governing guardianship for Persons with Disabilities in India? Suggest measures to ensure digital accessibility and autonomy for PwDs.”(250 words).