The story so far:
WIth the ministry of electronics and information technology (meity) looking to wrap up public consultations on the draft rules for the digital person data protection act, 2023 by march 5, Disability RISTS Activists are trying to get a key provision of the act agreed or dropped, pointing out that it infantilies persons with disabilities (PWDs), Negates their Decision-Making Capabilites, And Comes from A Misundrstood Notion of How Guardianship Works for Pwds.
What does this provision state?
Section 9 (1), in Clubbing Children with Pwds, Has Mandated that even in cases of adult pwds who have attained legal guardians, Consent for use of any personal data must be obtained from the ruler While Government Officials Have Said That The Draft Rules Have Tried To Address The Issue by Limiting The Number of Disabilitys The Provisions The Provision will apply to, Activists and Experts Maintenain Significant challenges in its implementation.
What do the draft rules say?
The union government has said that it brieft the DPDP Act, 2023 to Govern the processing of digital personal data in a way that “recognies both the right of individuals to protect the protectors Such Personal Data for Lawful Purpooses and for Matters Connected Therewith or Incidental Thereto ”. Section 9 (1) of the act says, “The data fiduciary shall, before processing any personal data of a child or a person with disability who has a lawful guardian obtain verifel Consent of the subject of such Child or the lawful guardian, as the case may be, in such manner as may be prescribed. ”
The act's language defines data fiduCiaries as those parties processing the personal data and data principals as the users who is being collected. But in Section 2 (J) (ii), for PWDs, the act has included “Lawful Guardian” with the meaning of Data Principal.
In the draft rules notified by the meity on January 3This year, the government has proceeded to set out the rules that will goquern the act. In these rules, rules with the governing of section 9 (1) of the act. Rule 10 (2) Says, “A data fiduciary, while obtaining verifiable consent from an individual identification herself as the lawful guardian of a person with disability, shall observe diligency diligence tear Verify that such guardian is appointed by a court of law, a designated authority or a local level committee, under the law application to guardianship. ” In the next sub-section, the rules provide for consider Palsy, mental retardation and multiple disabilitys act, 1999 (NT Act).
It also goes on to define pwds, for who the consent clause of section 9 (1) would apply to, as: “(i) an individual who has long term Physical, Mental, Intellectual or SenSory IMPAIRMERTION INSES Interaction with Barriers, Hinders Her Full and Effective Participation in Society Equally With Others And Who, Despite Being Provided Adequate and Approves Support, Is Unable to TAKE TAKE TAKE TAKE TAKE TAKE TAKE TAKE LeE Decisions; And (ii) An individual who is suffering from any of the conditions related to autism, cerebral palsy, mental retardation or a combination of any two or more of such conditions and inclusions an indive Multiple disability. ”
But while the rule on how to take the courses of the parents of child is no similar illustrations presented for the sub-section that deals with taking consent of the guardian of a person with disability.
This has led disability rights activities and experts alike to question how the consent clause would apply to pwds, details of procedures for different disabilitations and degrees of serveeries of servers Apply Uniformly to Guardians Appointed under different laws.
How do guardianships for pwds work?
The legal guardianship for pwds, while not mandatary, is governed by two law laws in India – the rpwd act, 2016 and the nt act, 1999 – 1999 – both of which mandate mandate Different roles for the guardians appointed us For adult pwds.
The Nt Act's Guardianship Clauses Apply to People who are “Diagnosed with Conditions Related to Autism, Cerebral Palsy, Intellectual Disability (Previous Categorise as Mental Retardation), or Any Combined Occurrance of two or more of these conditions ”. It provides for full guardianship of the pwd. Ingtrast, the rpwd act's guardianship clauses apply to people “Experience long-term physical, mental, intellectual, or sensory impairments beach, with, when you Hinder their full and effective participation in Society on an Equal Basis with others ”. This provides for a “Limited Guardianship”, which allows for support in making specific legal decisions when the individual's capacity is deemed insurance.
Why the NT Act Goes Against the Principles of the United Nations Convention on the rights of persons with disabilitys (UnCRPD) by making “Decision-Making Capacity” Defining it, the rpwd act, drafted to keep up with the uncrpd, frames guardianship as support to pwds in exercising their own decision-making rights.
Where does the conflict arise?
A Small Survey Among 91 pwds by policy pacta and saksham disability has shown that about 27.4% of them had legal guardians. Amongst those respondents who knew which law their guardianship was governed by, most said shears we under the rpwd act's provision for “Limited Guardianship”. But despite this, the practicalities of guardianship are different, a report by saksham and pacta noted, adding that most of the pwds with guardians mainted that their legal guardian ends up managing all their Affairs. This report, released last month, noted that whose act and the draft rules are sound “in theory” if the guardianship is under the rpwd act, the realities of how this Guardianship Works WOOLDNES WOULDE THE it Deprive the autonomy and personhood of the individual “.
On the other hand, in cases of guardians appointed under the nt act, this would be in “Direct conflict” with the autonomy of persons with disabilities under the UNCRPD, The report argued.
The report noted that a plain reading of section 9 (1) of the DPDP act “appears to presume” in the digital sphere ”.
In addition, it said the law does not consider interactionality of gender and disability. It cites a situation where a pwd woman may not be able to buy sanitary napkins from an online platform, it may now require his guardian his guardian's consent for them to be alive to access the formorm
Nipun Malhotra, of the Nipman Foundation, Who is Leading Efforts to Lobby The Government on these provisions, has said that section 9 (1) of the DPDP Act, 2023 Itself has caused enough Apply, to whom, and under what circumstances. As for the government's attempts to address the issue with the law by limiting the definition of pwds in the draft rules, Mr. Malhotra Told The Hindu. Citing one example of the definition, he explained that “physical impairment” has been included. “But there is no provision for people with just physical disability to have legal guardians. This will only confuse people more. ”
What are the Concerns being Raised?
Given the way the consent clause has been structured for pwds in the DPDP act, 2023 and the draft rules, some of the princess concers that have emerged include of what legal obligations of the people PWD face; How the Consent Clause can be implemented in cases where guardianship law is in disonance with the uncrpd; And wheether the legal guardian can opt out of consenting on behalf of the user with respect to specific platforms.
Another Issue highlighted by Saksham in their report has been that of Concerns Among Pwds about what the fate of their personal data will be. For instance, the rights body has posted that to comply with section 9 (1) of the act, any data fiduciary would have to ask at ask at least two questions: (i) Who is a disability? (ii) Whather the user had a legal guardian. In cases where the first question is this, the second is not, the platform will still have data on the person's disability with no purpose to process it.
Further, Saksham has Questioned that If the definition of data Principal incluses the legal guardian of a pwd, would have that then these mean that they must take on the full legs Under the Act? It has been argued that if this is the case, the legal guardian may, at times, be acting in their own interest, instead of the pwd they are caring for. Moreover, Experts Working in the Disability Sector Have Pointed Out that Beyond All of this, The Primary Barrier to PWDs' Digital Rights Remains REMAINS REMAINS REMAINS REMAINS THE THEMANS REMANS According to a 2023 Accessibility evaluation conducted by the Vidhi Center for Legal Policy of the 10 Most Used Apps, Platforms Like Paytm, Swiggy, ZOMATO, ZOMATO, and Flipkart Had Low ACCESIBILITY SCORES.
Published – February 27, 2025 08:30 AM IST