Why are PwDs worried about DPDP rules?

Sub : Polity

Sec: Legislation in news

Context:

Disability rights activists are urging the Ministry of Electronics and Information Technology (MeitY) to amend or drop a provision in the draft Rules for the Digital Personal Data Protection Act, 2023, ahead of the public consultation deadline on March 5.

Contested provisions:

Section 9(1) of the DPDP Act mandates that for Persons with Disabilities (PwDs) who have legal guardians, consent for processing personal data must be obtained from the guardian.
The draft rules, particularly Rule 10, elaborate on how consent must be verified for PwDs with legal guardians. The rules stipulate that a data fiduciary must confirm that the guardian has been appointed by a competent authority (court or designated body).
Rule 10(3) provides definitions for PwDs who are covered by Section 9(1). These include individuals with long-term impairments that hinder full societal participation, or those with conditions like autism, cerebral palsy, and intellectual disabilities, and includes those with severe multiple disabilities.

Issue with Consent Requirement for PwDs:

This provision has been criticized for infantilizing PwDs, assuming that having a guardian automatically implies the inability to make decisions, especially in digital matters.
There is a lack of clarity on how the consent clause will apply in cases where a PwD has limited guardianship under the RPWD Act. The potential for overreach by guardians could lead to a loss of autonomy for PwDs, especially in digital matters.
Unlike the rules for obtaining consent for children, there are no detailed illustrations in the draft Rules for obtaining consent from the guardian of a PwD, raising concerns about the practical implementation of the law.
Activists also raised concerns about whether guardians, under the new rules, could be held legally responsible for the decisions made on behalf of a PwD.

Challenges with Guardianship Models:

Guardianship for PwDs in India is governed by two laws: 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), which mandate different roles for guardians.
While the NT Act requires full guardianship, the RPWD Act allows for limited guardianship, focusing on providing support in specific decisions.
The NT Act’s broad guardianship approach is criticized for conflicting with the UN Convention on the Rights of Persons with Disabilities (UNCRPD) by neglecting the individual’s decision-making autonomy. The RPWD Act, aligned with UNCRPD, emphasizes support rather than control.