Concerns Raised Over DPDP Act Provision for PwDs

Context

The Digital Personal Data Protection Act (DPDP Act), 2023, has introduced a provision (Section 9(1)) that mandates legal guardians' consent for the use of personal data for any person with a disability. This provision has sparked concerns among disability rights activists, who argue that it undermines the autonomy of PwDs by assuming they cannot make decisions for themselves.

What does this provision state?

Section 9(1) of the Act requires data fiduciaries (those processing personal data) to obtain the consent of a legal guardian before processing the data of any PwD with a guardian. This is similar to how consent is required for children under the law.
Activists argue that this provision infantilizes PwDs by assuming that they cannot make their own decisions, regardless of the nature of their disability or level of support required.
Types of Guardianship and Their Impact

Limited vs Full Guardianship: The RPWD Act, 2016, provides for "limited guardianship" where support is provided for specific legal decisions, while the NT Act, 1999, mandates full guardianship for certain disabilities.
The DPDP Act does not adequately differentiate between these forms of guardianship, which leads to concerns about PwDs being treated as incapable of making their own decisions, even when they are capable.

International Disability Rights Conflict: The UN Convention on the Rights of Persons with Disabilities (UNCRPD) advocates for decision-making support rather than full guardianship.
- The DPDP Act’s provision seems to conflict with this principle, especially for PwDs governed by the NT Act, which contradicts the principles of autonomy and decision-making capacity recognized by the

Challenges with Implementation

Ambiguity in Consent Process: The absence of clear guidelines or illustrations for PwDs, as seen with children, leaves many questions unanswered about how consent will be gathered and what it will mean for PwDs with different disabilities.
Practical Concerns: Disability rights organizations note that guardians often manage all affairs of PwDs, even under the RPWD Act’s limited guardianship. This could lead to situations where PwDs are unable to exercise their rights independently.

Data Privacy and Digital Access

Potential Privacy Issues: PwDs may face difficulties in asserting their privacy rights. For example, platforms might store sensitive data on their disability without the user’s consent if a guardian is involved.
Inaccessible Platforms: A report from the Vidhi Centre for Legal Policy shows that many popular platforms, like Paytm and Flipkart, are not accessible to PwDs, limiting their ability to exercise digital rights regardless of guardianship.

Fact Box:

Types of Disabilities

According to the Census 2011, the number of Persons with Disabilities (PwDs) in India stands at 2.68 crore, which is 2.21% of the total population.
As per the Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act, 1995 - A person with disability can be defined as one with one or more of disabilities falling under any of the below mentioned categories:
- Blindness: "Blindness" refers to a condition where a person suffers from any of the following conditions namely:-
- Total absence of sight; or Visual acuity not exceeding 6/60 or 20/200 (Snellen) in the better eye with correcting lenses; or Limitation of the field of vision subtending an angle of 20 degree or worse;
- Cerebral Palsy: "Cerebral Palsy" means a group of non-progressive conditions of a person characterized by abnormal motor control posture resulting from brain insult or injuries occurring in the pre-natal, peri-natal or infant period of development;
- Low vision: " Low vision" means a person with impairment of visual functioning even after treatment of standard refractive correction but who uses or is potentially capable of using vision for the planning or execution of a task with appropriate assistive device;
- Locomotor disability: "Locomotor disability" means disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or nay form of cerebral palsy;
- Leprosy-cured: "Leprosy-cured person" means person who has been cured of leprosy but is suffering from-
  - Loss of sensation in hands or feet as well as loss of sensation and paresis in the eye and eye-lid but with no manifest deformity;
  - Manifest deformity and paresis but having sufficient mobility in their hands and feet to enable them to engage in normal economic activity;
  - Extreme physical deformity as well as advanced age which prevents him from undertaking and gainful occupation and the expression "Leprosy Cured" shall be construed accordingly;
- Mental retardation: "Mental retardation" means a conditions of arrested or incomplete development of mind of a person which is specially characterized by sub normality of intelligence;
- Mental illness:- "Mental illness" means any mental disorder other than Mental retardation
- Hearing Impairment: "Hearing Impairment" means loss of sixty decibels or more in the better ear in the conversational range of frequencies.

Laws Granting Disability Rights

RPwD Act, 2016: Replaces the 1995 Act, ensuring equal opportunities, protection of rights, and full participation for PwDs.
National Trust Act, 1999: Aims to support the welfare of persons with autism, cerebral palsy, mental retardation, and multiple disabilities.
Rehabilitation Council of India Act, 1992: Regulates training and registration of professionals working in disability rehabilitation.
Mental Health Care Act, 2017: Protects the rights and dignity of persons with mental illness.

Major Initiatives for the Empowerment of PwDs

PM-DAKSH: Skill development and rehabilitation scheme for PwDs.
Accessible India Campaign: Aims to make the built environment accessible.
DeenDayal Disabled Rehabilitation Scheme: Provides assistance for the rehabilitation of PwDs.
Assistance to Disabled Persons for Purchase/Fitting of Aids and Appliances: Financial aid for purchasing assistive devices.
National Fellowship for Students with Disabilities: Fellowship opportunities for disabled students.
Global Initiatives
- Incheon Strategy: A global framework to improve the lives of PwDs in Asia and the Pacific.
- United Nations Convention on the Rights of Persons with Disabilities: International treaty to protect the rights of PwDs.
- International Day of Persons with Disabilities: A day to raise awareness about the issues faced by PwDs globally.