Context: Disability rights activists are criticising the draft Digital Personal Data Protection Rules that infantilises Persons with Disabilities (PwDs) and negates their decision-making capabilities.
Relevance of the topic:
Prelims: Questions based on provisions of DPDP Act and RPD Act 2016
Mains: Analytical question on DPDP act with reference to the persons with disability.
About Disputed Consent Provision
- The Digital Personal Data Protection (DPDP) Act 2023 has a consent provision, where the digital intermediaries require the consent of an individual for the storage and use of the personal data. This provision is key to the act as it ensures the transparency and accountability of the personal data transmission and usage.
- In case of children and persons with benchmark disabilities (i.e., 40% disability), the Act provides for the parental or guardian consent to use the personal data.
- Though, the provision of guardian’s involvement for consent in case of children is a welcome step. But, in case of persons with disability this key provision remains a bone of contention.
The Controversy: Section 9(1) of the DPDP Act, 2023
- Section 9(1) of the Act says: The Data Fiduciary shall, before processing any personal data of a child or a person with disability (PwD) who has a lawful guardian, obtain verifiable consent of the parent of such child or the lawful guardian, in such manner as may be prescribed.
- Data fiduciaries: Parties processing the personal data.
- Data principals: Users whose data is being collected.
- This section “appears to presume” that just because a PwD might have a legal guardian, this in itself would be indicative of their “inability to take decisions in the digital sphere”.
Rule 10 of the draft DPDP Rules
Rule 10 of the draft DPDP Rules deals with the governing of Section 9(1) of the DPDP Act.
- Verification of guardianship:
- A Data Fiduciary must verify that such guardian is appointed by a court of law, a designated authority or a local level committee, under the laws applicable to guardianship.
- Defines PwDs:
- Individuals with long term physical, mental, intellectual or sensory impairment, that hinder their full and effective participation in society equally with others.
- Individuals suffering from any of the conditions relating to autism, cerebral palsy, mental retardation or a combination of any two or more of such conditions.
- The Rule provides 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).
Rationale to include Guardian’s Consent for PwDs
- Long-term inability:
- It is believed that persons with disability having a long term physical and mental disability have limited capacity to take the legally binding decisions in their personal capacity.
- E.g., A person with visual impairment requires a guardian to provide for the consent for the digital financial transactions.
- Limited applicability:
- The draft rules by the MiETY have clarified that the clause of guardian consent is applicable in case of disabilities that restrict proactive decision making by an individual.
- E.g., The guardian consent is mandated for the disabilities like autism, cerebral palsy, mental retardation and to or more such conditions.
- Protection against vulnerabilities:
- Guardian consent provision aims to protect PwDs from exploitation due to data theft and other vulnerabilities.
Criticism of the Provisions
- Demeans Abilities:
- The provision of guardian’s consent in case of PwD demeans and questions their decision making abilities. The provision, therefore, is seen as discriminatory.
- Strengthens the Stereotype:
- The provision for guardian’s consent reiterates the stereotype against inabilities of the PwD, that can further cascade into the loss of jobs and opportunity for economic participation.
- Violates Privacy Rights:
- The Act irrespective of the nature of data requires a guardian’s involvement for providing consent. This violates the Rights to Privacy and Right to Choice of PwD that is guaranteed under Article 21.
- E.g., A visually impaired person may require guardian consent to perform the financial transactions above a certain amount, but requirement of similar guardian’s consent in fitness application or e-commerce website violates privacy.
- Neglects Intersectionality issues:
- The law does not consider intersectionality of gender and disability. E.g., PwD women may require their guardian’s consent to be able to buy sanitary napkins from an online platform.
- Scope of Consent Policing:
- Requirement of guardian’s consent may be misused for moral policing, as guardians may control the actions and choices of the PwDs.
- Critics argue that in cases of guardians appointed under the National Trust Act, would be in “direct conflict” with the autonomy of persons with disabilities under the UNCRPD.
- Legal Obligations of Guardians:
- Guardians may face legal consequences and penalties under the Act, potentially leading to conflict of interest.
The Digital Personal Data Protection Act 2023, consent provision is crucial to ensure data security. But, it needs to balance between the privacy of PwD and protecting them against exploitation.
Legal guardianship laws for PwDs in India
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.
1. National Trust Act, 1999:
- The NT Act’s guardianship clauses apply to PwDs diagnosed with autism, cerebral palsy, intellectual disability, or occurrence of two or more of these conditions. It provides for full guardianship of the PwD.
- 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.
2. Rights to Persons with Disabilities Act, 2016:
- 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.
- The RPWD Act upholds the principles of the UNCRPD, and frames guardianship as support to PwDs in exercising their own decision-making rights.
About Rights to Persons with Disabilities Act, 2016:
- Rights to Persons with Disabilities Act 2016 defines “persons with disabilities” as a person with physical, intellectual, or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others.
- Types of disabilities covered under the Act are increased from 7 to 21. It includes various physical and mental disabilities like acid attack victims, Dwarfism and Autism Spectrum Disorder.
- Free Education: Act provides for the free and compulsory education for persons with benchmark disability up to 18 years of age unlike 6-14 years in case of Right to Education Act.
- Reservation: It mandates a 4% reservation in the public employment and 5% reservation in educational institutions, for the PwD
- Accessible infrastructure: The Act mandated both public and private institutions to make institutions infrastructure accessible to the persons with disability.
- Universal accessible digital products: Section 41 to 43 of the Act provides for the provisions of the accessible ICT consumer products for the PwD.
