Context:
Under Section 9(1) of the Digital Personal Data Protection (DPDP) Act, 2023, adult PwDs have been equated with children and require guardian consent for personal data processing.
Two Laws in Conflict: Activists argue that this violates the decision making rights of PwDs based on misconceived notions regarding guardianship.
Understanding Section 9(1)
- Requirement
- Data fiduciaries are required to process personal data of PwDs only after guardian consent has been obtained.
- Legal Basis
- Section 2(j)(ii) includes lawfully appointed guardian within the definition of “data principal”.
- Draft Rules (Rule 10) specify further that the guardianship must either be court appointed or recognised under the Indian disability laws.
- National Trust Act (NT Act), 1999
- Gives full guardianship for autistics, those with cerebral palsy, and others with intellectual disabilities.
- Rights of Persons with Disabilities (RPWD) Act, 2016
- This law pronounces limited guardianship and considers that persons with disabilities retain full decision making power with support.
- Conflict Areas
- The NT Act contradicts the UN Convention on the Rights of Persons with Disabilities (UNCRPD) by assuming PwDs are devoid of decision making capacity.
- The RPWD Act supports UNCRPD, which means active choice for PwDs but has practical realities not supporting this.
Concerns Raised By Disability Activists
- Assumption of Incapacity
- Section 9(1) assumes that all PwDs who have guardians can’t make decisions, countering the limited guardianship model under the RPWD Act.
- Survey by PACTA and Saksham Disability determined 27.4% of PwDs had legal guardians, but a majority also ran their own affairs, thereby limiting autonomy.
- Draft Rules Lack Clarity
- Definition Loopholes: Rules outline physical impairment as a qualifying condition, but physical disabilities don’t legally require guardianship.
- Yet there is no clear modality stating how other disabilities and their grades of severity can be handled.
- Matrix of Problems in Implementation
- How to decide which persons have guardianship from platforms’ point of view?
- Will the guardian be under the same legal obligation with regard to civil liability from breaches of any kind arising from the DPDP Act act?
- Probably Gender And Disability Concerns
- If the platform demands consent from a guardian, a PwD woman will preferably not buy sanitary items online.
- Effect on Digital Accessibility
- The greatest deterrent to digital inclusion isn’t just data consent but really ramshackle platforms.
- A Vidhi Centre for Legal Policy study showed that Paytm, Swiggy, Zomato, and Flipkart had appallingly low accessibility scores.
Source: The Hindu
