DPDP strikes again - disabled people and children still grouped together and a questionable definition

[Vaishnavi Jayakumar]

https://legal.economictimes.indiatimes.com/news/law-policy/is-indias-draft-data-protection-rules-enough-to-safeguard-childrens-privacy/116971400

Disabled people clubbed again with children, this time in DPDP rules, just released.

 Also an imprecise definition of person with disability that could more accurately be defined as 'person with disability under limited guardianship' - the fi(i) they have tacked on RPDA section 14 text to  RPDA person with disability definition in 2(s)

3(f) 
(f) “person with disability” shall mean and include—

(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.

Am unclear if I'm not understanding this issue properly, lawyers seem unperturbed by this.  Just flagging it nevertheless. 

The timeline is as follows : 

1. The DPDP Act received assent of the President on 11-8-2023.
2. A representation was sent by Mission Accessibility - Vidhi to MEITY on 14-7-2024 after initial concerns were raised regarding the DPDP Act 's children - disabled adults linkage , limited guardianship  and accessibility etc - specifically sections 2(j), 9 (1) side title, section 14
3. Subsequently OCPD also wrote to MEITY on 14-11-2024 regarding concerns with Act given imminent release of  draft rules
4. DPDP draft rules were released for comments on 3-1-2025 - has many references to disability, but by clubbing children with disabled adults also muddies substituted decision making with supported decision making and full vs limited guardianship.

In my limited understanding as a lay person, the concerns raised so far have been unaddressed or incompletely addressed in the DPDP Rules. Happy to be corrected and fears allayed.

The  ET article and other briefs refer to more nuanced protocols for persons with disabilities who may utilise a range of support.

Act, rules, representations, briefs can all be referenced in this folder :

 https://drive.google.com/drive/folders/1XdYdAdME9GqaFydmAUXevTMo-lisTL7s

Am leaving a WhatsApp rant below because I am in too much of a hurry to insert this in appropriate places. Apologies in advance for this sloppiness - just wanted to get the info out asap for sector response.🔻

[05/01, 09:01] Vaishnavi Jayakumar: Issues with the DPDP act - side title to 9 - says *Processing of personal data of children.*
It however deals with disabled people under guardianship as well.
Not only is the omission in side title significant for a lay person it is inappropriate and archaic to club guardianship of a minor with guardianship of an adult in need of support.
It is obvious that #9 is dealing with proxy decision making or total guardianship in which case the individual is being bypassed altogether. 
But as the MA-Vidhi representation flags, the RPDA renders all prior guardianships as limited, with supported instead of substituted decision making.
The DPDP act and rules are silent on processes for people under limited guardianship, who are not legally incapacitated.

 

: Also if total guardianship is being addressed, there are legal guardians who have been appointed by various other means (Article 226, the Code of Civil Procedure). Disorders of consciousness - are people in a persistent vegetative state , disabled or of 'unsound mind'? Or something else?
 While the individual is not completely negated in definitions in 2j, it is clear that only proxy decision making is being addressed, not the more complicated supported decision making. 
Again, child and adult with disability have been dealt with in the same breath. As OCPD letter to MEITY flags, this conflation as such, plays into the inappropriate infantilizing of some adults with disabilities.