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Polity & Governance
Mahesh

05/03/25 08:51 AM IST

Digital Personal Data Protection Act, 2023

In News
  • Disability rights activists are trying to get a key provision of the Act amended or dropped, pointing out that it infantilises Persons with Disabilities (PwDs), negates their decision-making capabilities, and comes from a misunderstood notion of how guardianship works for PwDs.
Main Provision
  • Section 9(1), in clubbing children with PwDs, has mandated that even in cases of adult PwDs who have legal guardians, consent for use of any personal data must be obtained from the guardian concerned.
  • While government officials have said that the draft Rules have tried to address the issue by limiting the number of disabilities the provision would apply to, activists and experts maintain that there remain significant challenges in its implementation.
  • 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 verifiable consent of the parent 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 whose data is being collected.
  • But in Section 2(j)(ii), for PwDs, the Act has included “lawful guardian” within 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 govern the Act.
  • In these Rules, Rule 10 deals with the governing of Section 9(1) of the Act.
  • Rule 10(2) says, “A Data Fiduciary, while obtaining verifiable consent from an individual identifying herself as the lawful guardian of a person with disability, shall observe due diligence to verify that such guardian is appointed by a court of law, a designated authority or a local level committee, under the law applicable to guardianship.”
  • In the next sub-section, the Rules provide for considering guardianship under the Rights of Persons with Disabilities Act, 2016 (RPWD Act) and the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (NT Act).
  • It also goes on to define PwDs, for whom the consent clause of Section 9(1) would apply to, as: “(i) an individual who has long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders her full and effective participation in society equally with others and who, despite being provided adequate and appropriate support, is unable to take legally binding decisions; And (ii) an individual who is suffering from any of the conditions relating to autism, cerebral palsy, mental retardation or a combination of any two or more of such conditions and includes an individual suffering from severe multiple disability.”
  • But while the Rule on how to take the consent of the parents of children contains detailed explanations in the form of illustrations that highlight different scenarios and how the consent procedure would work in each, there 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 activists and experts alike to question how the consent clause would apply to PwDs, details of procedures for different disabilities and degrees of severity, and whether it would apply uniformly to guardians appointed under different laws. 
Working of Guardianship for PwDs
  • The legal guardianship for PwDs, while not mandatory, is governed by two laws in India — the RPWD Act, 2016 and the NT Act, 1999 — both of which mandate different roles for the guardians appointed under it for adult PwDs.
  • The NT Act’s guardianship clauses apply to people who are “diagnosed with conditions related to autism, cerebral palsy, intellectual disability (previously categorised as mental retardation), or any combined occurrence of two or more of these conditions”.
  • It provides for full guardianship of the PwD. In contrast, the RPWD Act’s guardianship clauses apply to people “experiencing long-term physical, mental, intellectual, or sensory impairments which, when interacting with various barriers, 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 insufficient.
  • While the NT Act goes against the principles of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) by making “decision-making capacity” a metric for guardianship without adequately 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. 
Concerns
  • Given the way the consent clause has been structured for PwDs in the DPDP Act, 2023 and the draft Rules, some of the principal concerns that have emerged include those of what legal obligations would the guardian of a PwD face; how the consent clause can be implemented in cases where guardianship law is in dissonance with the UNCRPD; and whether 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 posited that to comply with Section 9(1) of the Act, any data fiduciary would have to ask at least two questions: (i) Whether the user has a disability? (ii) Whether the user had a legal guardian. In cases where the answer to the first question is yes but 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 includes the legal guardian of a PwD, would that then mean that they must take on the full legal responsibility and face penal consequences 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 that of inaccessible platforms and applications.
  • According to a 2023 accessibility evaluation conducted by the Vidhi Centre for Legal Policy of the 10 most used apps, platforms like Paytm, Swiggy, Zomato, and Flipkart had low accessibility scores. 
Source- The  Hindu

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