Key Concerns of Persons with Disabilities (PwDs)
- Mandated Guardian Consent:
- Section 9(1) of the Digital Personal Data Protection (DPDP) Act, 2023 requires legal guardians to provide consent for the processing of personal data of PwDs, equating them with children.
- Activists argue this undermines the autonomy of PwDs and assumes their inability to make decisions in the digital space.
Relevance : GS 2(Governance)
- Lack of Clarity in Implementation:
- The draft Rules limit the number of disabilities covered under Section 9(1), but critics say they do not address all practical challenges.
- Rule 10 requires data fiduciaries to verify the guardian’s legal status, but no clear guidelines exist for different disabilities or their severity.
- Mismatch with Guardianship Laws:
- Two laws govern PwD guardianship in India:
- National Trust Act (NT Act), 1999 → Full guardianship for PwDs with autism, cerebral palsy, and intellectual disabilities.
- Rights of Persons with Disabilities (RPWD) Act, 2016 → Limited guardianship, supporting PwDs in decision-making rather than replacing their autonomy.
- DPDP Act fails to differentiate between the two types of guardianship, raising concerns about forced dependence on guardians.
- Two laws govern PwD guardianship in India:
Challenges & Conflicts
- Violation of UNCRPD Principles:
- The DPDP Act assumes that having a guardian implies an inability to make decisions, contradicting the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), which India has ratified.
- Gender & Intersectionality Issues:
- A PwD woman may require guardian consent even for essential online purchases like sanitary napkins, restricting their rights.
- Confusion in Definition of PwDs:
- The draft Rules include “physical impairment” under disabilities requiring guardian consent, but there is no provision for physical disabilities to have legal guardians.
Practical Issues in Digital Data Handling
- Data Collection & Privacy Risks:
- Platforms may have to ask whether a user has a disability and whether they have a guardian. If a user is disabled but does not have a guardian, their disability status still gets recorded without any legitimate purpose.
- Legal Accountability of Guardians:
- If the legal guardian is the data principal, they may face penal consequences under the DPDP Act. This could lead to guardians acting in their own interest rather than that of the PwD.
Accessibility Issues Remain Unaddressed
- A 2023 accessibility study by Vidhi Centre for Legal Policy found that apps like Paytm, Swiggy, Zomato, and Flipkart had low accessibility scores, highlighting that digital barriers remain a bigger issue for PwDs than data privacy rules.
