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PwDs & DPDP Act 2023: Digital Autonomy & Privacy Issues l GS Paper 2

Illustration depicting digital privacy concerns for PwDs, showing accessibility challenges, data security, and legal guardianship issues


The Digital Personal Data Protection (DPDP) Act, 2023 has sparked debates among disability rights activists due to its provisions regarding data consent for Persons with Disabilities (PwDs). The major concern lies in Section 9(1), which mandates that PwDs with legal guardians must obtain consent from their guardian before data processing. This raises questions about digital autonomy, privacy rights, and accessibility.

Understanding Guardianship and PwD Concerns in the DPDP Act, 2023

What is Guardianship?

Guardianship for PwDs is regulated under two primary laws in India:

  1. Rights of Persons with Disabilities (RPWD) Act, 2016:

    • Advocates for limited guardianship, allowing PwDs to make decisions with support.

    • Recognizes their autonomy and provides decision-making rights.

  2. National Trust Act (NT Act), 1999:

    • Provides for full guardianship in cases of autism, cerebral palsy, and intellectual disabilities.

    • Guardians make all decisions on behalf of the PwD.

Issue: The DPDP Act does not distinguish between these two forms of guardianship, creating confusion over who has decision-making authority in data processing.

Who is a Data Fiduciary?

A Data Fiduciary is an entity that collects, processes, or stores personal data. Under the DPDP Act, they must:

  • Obtain consent before processing any data.

  • Ensure compliance with privacy laws and security measures.

Who is a Data Principal?

A Data Principal refers to the individual whose personal data is being processed. However, under Section 9(1) of the DPDP Act, the guardian of a PwD is also considered a Data Principal. This raises concerns about:

  • Loss of autonomy for PwDs.

  • Privacy risks associated with third-party consent.

  • Conflict with disability rights laws.

Key Provisions of DPDP Rules & Their Impact on PwDs

Section 9(1) – Mandatory Guardian Consent

  • Requires verifiable consent from a legal guardian before processing the personal data of a PwD.

  • Creates challenges for PwDs who are capable of making independent decisions.

Rule 10(2) – Legal Verification of Guardianship

  • Stipulates that the guardian must be legally appointed under either the RPWD Act or the NT Act.

  • Fails to differentiate between full and limited guardianship.

Definition of PwDs in the Act

  • Covers individuals with long-term disabilities who cannot take legally binding decisions.

  • Ignores PwDs who are capable of independent decision-making.

Issues with DPDP Rules & PwD Concerns

  1. Loss of Digital Autonomy:

    • The Act assumes all PwDs are incapable of managing their data.

    • Reinforces negative stereotypes and undermines self-reliance.

  2. Conflict Between Guardianship Laws & Digital Rights:

    • The NT Act enforces full guardianship, while the RPWD Act promotes limited guardianship.

    • DPDP Act does not differentiate, leading to legal confusion.

  3. Data Privacy & Consent Issues:

    • PwDs may have to disclose personal information to platforms.

    • Raises security concerns over data misuse and breaches.

    • Unclear whether guardians will bear legal liability for data misuse.

  4. Lack of Accessibility Measures in Digital Platforms:

    • Many government and private apps remain inaccessible to PwDs.

    • Websites, banking apps, and social media fail to comply with accessibility norms.

  5. Gender & Disability Intersectionality Ignored:

    • Women with disabilities may face additional barriers in accessing essential online services.

    • Example: Difficulty in purchasing menstrual hygiene products due to dependency on guardians.

Way Forward

  1. Remove Blanket Guardian Consent Requirement:

    • Allow PwDs to exercise digital autonomy, unless a court explicitly states otherwise.

    • Enable independent decision-making for those with limited guardianship.

  2. Differentiate Between Full & Limited Guardianship:

    • Align DPDP Act provisions with the RPWD Act and NT Act.

    • Ensure legally sound consent mechanisms.

  3. Improve Accessibility & Digital Inclusion:

    • Ensure all digital services comply with Web Content Accessibility Guidelines (WCAG).

    • Mandate screen readers, voice commands, and easy navigation for PwDs.

  4. Clarify Legal Liabilities for Guardians:

    • Define responsibilities and penalties for both PwDs and their guardians.

    • Protect PwDs from data breaches and financial fraud.

Conclusion

The DPDP Act, 2023 raises serious concerns regarding digital autonomy, privacy, and accessibility for PwDs. While protecting vulnerable individuals is essential, the law must ensure inclusivity and respect for decision-making rights. Addressing ambiguities in guardianship roles and promoting digital accessibility will be crucial for ensuring fair and effective implementation.

Multiple Choice Questions (MCQs) for UPSC CSE

  1. Which section of the DPDP Act, 2023 mandates guardian consent for PwDs?

    • (a) Section 5(2)

    • (b) Section 9(1) ✅

    • (c) Section 12(4)

    • (d) Section 15(3)

  2. Which Act provides for limited guardianship for PwDs?

    • (a) RPWD Act, 2016 ✅

    • (b) NT Act, 1999

    • (c) DPDP Act, 2023

    • (d) POCSO Act, 2012

  3. A Data Fiduciary is an entity that:

    • (a) Only stores personal data

    • (b) Only collects personal data

    • (c) Collects, processes, and stores personal data ✅

    • (d) Has no legal responsibility towards data security

  4. Which of the following is a major concern regarding PwDs in the DPDP Act, 2023?

    • (a) Lack of cybersecurity laws

    • (b) Mandatory guardian consent undermining autonomy ✅

    • (c) Increase in foreign investments

    • (d) None of the above

  5. What does Rule 10(2) of the DPDP Act specify?

    • (a) Definition of a Data Fiduciary

    • (b) Guardian must be legally appointed under RPWD or NT Act ✅

    • (c) Procedure for data breach reporting

    • (d) Data storage requirements for foreign firms

Mains Question for UPSC CSE

Question:

The Digital Personal Data Protection (DPDP) Act, 2023 has raised concerns about digital autonomy and privacy rights for Persons with Disabilities (PwDs). Discuss the key challenges posed by the Act and suggest measures to ensure inclusivity and digital accessibility for PwDs.

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