Section 21 - Disqualifications for appointment and continuation as Chairperson and Members

1.1 Detailed structured summary

Section 21 identifies the circumstances in which a person is legally ineligible:

1. to be appointed as Chairperson or Member of the Data Protection Board of India; or

2. to continue in office after appointment.

It therefore operates at two stages. The Central Government must consider these grounds when making an appointment, and must also act if a disqualification arises or becomes known during the person’s tenure.

The grounds concern insolvency, conviction for an offence involving moral turpitude, physical or mental incapacity, prejudicial financial or other interests, and abuse of office prejudicial to the public interest. Section 21(2) protects the Chairperson or Member against removal without first receiving an opportunity to be heard.

2. Disqualification applies both before and after appointment

The expression “disqualified for being appointed and continued” gives Section 21 a continuing operation.

A person cannot be appointed if a listed disqualification already exists. If the disqualification arises after appointment, or an existing disqualification is subsequently discovered, the person may cease to be eligible to continue in office.

The section therefore differs from Section 19, which specifies the positive qualifications for appointment.

The two provisions operate together:

• Section 19 asks whether the person possesses the required ability, integrity, standing and relevant expertise.

• Section 21 asks whether any circumstance makes the person legally unsuitable for appointment or continuation.

A person must satisfy both requirements. Possession of exceptional legal, technical or regulatory expertise does not overcome a Section 21 disqualification.

Section 21 applies equally to:

• the Chairperson; and

• every other Member.

The definition of “Member” otherwise includes the Chairperson, but Section 21 expressly refers to both offices to remove any doubt about its application.

3. Adjudged insolvent

A person is disqualified if she “has been adjudged as an insolvent.”

The expression requires an adjudication of insolvency. Mere financial difficulty, indebtedness, delayed payment or an allegation of insolvency is not, by itself, sufficient.

The relevant distinction is between:

• a person experiencing financial distress; and

• a person formally adjudged insolvent through the applicable legal process.

The disqualification is relevant to the trust and responsibility attached to membership of the Board. Members may perform adjudicatory functions, deal with confidential information and exercise authority under a statute carrying substantial monetary penalties.

Section 21 does not specify whether the disqualification automatically ceases after discharge from insolvency or another subsequent legal development. That issue would depend on:

• the person’s current legal status;

• applicable insolvency law;

• the appointment decision;

• the wording and continuing effect of Section 21(a).

The Central Government should assess the legally operative status rather than rely merely on an allegation, pending petition or prior financial difficulty.

4. Conviction for an offence involving moral turpitude

A person is disqualified where:

1. she has been convicted of an offence; and

2. the Central Government forms the opinion that the offence involves moral turpitude.

Both elements are necessary.

An accusation, investigation, arrest, charge sheet or pending prosecution does not amount to a conviction for the purpose of Section 21(b). The statutory disqualification attaches upon conviction, subject to the Central Government’s assessment of the nature of the offence.

4.1 Central Government’s opinion

A conviction alone does not automatically satisfy the paragraph. The offence must also be one that, in the opinion of the Central Government, involves moral turpitude.

The Act does not define “moral turpitude.” Nor does it provide a fixed list of qualifying offences.

The Government must therefore assess the character of the offence. The inquiry concerns whether the conduct reflected in the offence is sufficiently inconsistent with the honesty, integrity and ethical reliability required from a Member of the Board.

The expression should not be treated as covering every minor or technical offence automatically. The Government’s conclusion must concern the nature of the offence and whether it involves moral turpitude.

4.2 Relationship with Section 19

Section 19 separately requires every Chairperson and Member to be a person of integrity and standing. A conviction may therefore be relevant to the person’s suitability even before the formal Section 21(b) test is completed. For statutory disqualification under Section 21(b), however, the required elements remain conviction and the Central Government’s opinion concerning moral turpitude.

5. Physical or mental incapacity

A person is disqualified if she “has become physically or mentally incapable of acting as a Member.”

The provision is concerned with functional incapacity. The relevant question is whether the person has become incapable of performing the functions of office.

The paragraph should not be read as disqualifying a person merely because she:

• has a disability;

• has a medical diagnosis;

• requires an accommodation;

• experiences temporary illness;

• uses assistive technology;

• requires support to perform particular tasks.

The statutory threshold is incapacity to act as a Member.

The assessment should therefore focus on whether the person can perform the essential functions of the office, including the ability to:

• participate in proceedings;

• consider evidence and submissions;

• make or contribute to decisions;

• discharge statutory responsibilities.

Where reasonable support or accommodation enables the person to continue performing those functions, the mere existence of a physical or mental condition does not necessarily establish incapacity.

Section 21 does not prescribe:

• a mandatory medical board;

• a particular medical certificate;

• a minimum duration of incapacity;

• a separate inquiry procedure for this ground.

Any removal based on incapacity must nevertheless comply with Section 21(2), including the opportunity to be heard.

6. Financial or other interest prejudicial to the Member’s functions

A person is disqualified if she has acquired a financial or other interest likely to affect her functions as a Member prejudicially.

This ground protects the impartiality of the Board.

It has three essential components:

1. the person has acquired a financial or other interest;

2. the interest has a connection with the performance of her functions;

3. the interest is likely to affect those functions prejudicially.

The mere existence of every investment, professional association or prior employment relationship does not automatically produce disqualification. The required concern is an interest likely to compromise or improperly influence the Member’s statutory functions.

6.1 Financial interests

A financial interest may include a relevant economic stake in an entity or matter affected by the Board’s work.

Its significance will depend on factors such as:

• nature of the interest;

• value or materiality;

• connection with a party before the Board;

• ability of the Board’s decision to affect the interest;

• whether the interest is direct or indirect.

The Act does not prescribe a monetary threshold or ownership percentage.

6.2 Other interests

The words “or other interest” extend the ground beyond financial interests.

A non-financial interest may potentially arise from a relationship, position or association capable of prejudicially affecting the Member’s functions.

The statutory test remains whether the interest is likely to affect the Member’s performance prejudicially. A remote or insignificant connection should not automatically be treated as disqualifying.

6.3 Ongoing service condition

The Fifth Schedule also requires the Chairperson and Members to ensure the absence of conflicts of interest and prohibits them from having financial or other interests likely to prejudicially affect the performance of their functions. This service condition closely reflects Section 21(1)(d).

Section 21 addresses the consequence at the level of eligibility and continuation in office. The Fifth Schedule imposes the corresponding ongoing obligation during service.

6.4 Recusal and disqualification

Section 21 does not expressly state that every matter-specific conflict automatically results in permanent removal.

A limited conflict concerning one proceeding may potentially be addressed through disclosure or recusal, depending on the circumstances and applicable procedure.

Disqualification becomes relevant where the financial or other interest is of such a nature that it is likely to affect the person’s functions as a Member prejudicially.

The distinction is therefore between:

• a limited interest that can be appropriately managed; and

• an interest incompatible with continued performance of the office.

The Act does not prescribe a detailed recusal code in Section 21. The assessment must remain tied to the statutory threshold.

7. Abuse of position prejudicial to public interest

A person is disqualified if she has abused her position to such an extent that continuation in office would be prejudicial to the public interest.

This ground concerns misuse of the authority, access or status attached to membership of the Board.

The provision requires more than an ordinary error of judgment. It refers to:

1. abuse of position; and

2. a resulting conclusion that continued office would be prejudicial to the public interest.

Potential abuse must be connected with the person’s position as Chairperson or Member.

It may involve misuse of:

• statutory authority;

• confidential information;

• access to Board records;

• decision-making influence;

• institutional resources;

• official position for private advantage.

Section 21 does not provide a closed list of abusive conduct.

7.1 Public-interest consequence

Abuse alone is not the complete statutory formulation. It must render the person’s continued office prejudicial to the public interest.

This requires consideration of whether the conduct has undermined, or is likely to undermine:

• integrity of the Board;

• impartial exercise of statutory functions;

• fairness of proceedings;

• confidentiality;

• public confidence;

• lawful administration of the DPDPA.

The Central Government should assess the nature and seriousness of the conduct and its effect on continued suitability for office.

7.2 Difference from ordinary disagreement

A Member should not be treated as having abused her position merely because:

• the Government disagrees with a legal interpretation;

• a party dislikes a decision;

• an order is overturned on appeal;

• the Member reaches an unpopular conclusion.

Abuse of position requires misuse of office, not merely a contested or erroneous exercise of adjudicatory judgment.

8. Continuing nature of the disqualification grounds

Several Section 21 grounds may arise after appointment.

Example

Examples include:

• insolvency adjudication occurring during tenure;

• conviction during tenure;

• incapacity developing after appointment;

• acquisition of a financial interest after joining the Board;

• abuse of office during service.

The Chairperson and Members must therefore continue to satisfy Section 21 throughout their terms.

An appointment that was valid when made does not prevent later disqualification.

This continuing framework is reinforced by the Fifth Schedule’s requirement that each office-holder ensure absence of financial or other interests likely to affect official functions prejudicially.

9. Central Government’s role

The Central Government is responsible for appointing the Chairperson and Members under Section 19 and for removing them under Section 21 where a disqualification is established.

Its role differs across the grounds.

For moral turpitude, Section 21 expressly requires the Central Government to form an opinion regarding the offence.

For the other grounds, the Government must determine whether the statutory condition exists, such as whether:

• the person has been adjudged insolvent;

• incapacity prevents the person from acting as a Member;

• an interest is likely to affect functions prejudicially;

• abuse of position makes continuation prejudicial to public interest.

The statutory power should be exercised with reference to the particular ground and available material.

Section 21 does not confer removal power on:

• the Board collectively;

• the Chairperson in relation to another Member;

• MeitY officials acting without Central Government authority;

• a private complainant;

• a Data Fiduciary appearing before the Board.

A person may bring relevant facts to the appropriate authority, but the removal decision belongs to the Central Government.

10. Mandatory opportunity of being heard

Section 21(2) imposes an important procedural safeguard.

The Central Government cannot remove the Chairperson or a Member without first giving her an opportunity to be heard.

This requirement applies to removal based on any of the grounds in Section 21(1).

The office-holder should receive a genuine opportunity to address:

• the allegation;

• relevant facts;

• material relied upon;

• why the statutory disqualification is said to apply;

• any evidence or explanation supporting continuation in office.

The opportunity must be meaningful, not merely formal.

A removal decision made first and followed by a hearing afterwards would not ordinarily satisfy the requirement that the person be heard before removal.

11. What the hearing safeguard requires

Section 21 does not prescribe a detailed hearing procedure. It does not specify:

• a formal oral hearing in every case;

• a judicial inquiry;

• appointment of an inquiry judge;

• a fixed response period;

• cross-examination;

• a particular evidentiary procedure.

The precise procedure may depend on:

• nature of the alleged disqualification;

• factual disputes;

• seriousness and complexity of the matter;

• applicable service rules;

• principles of natural justice.

At a minimum, the person should know the basis on which removal is proposed and should have a reasonable opportunity to respond.

Example

For example:

• where insolvency is established by a formal adjudication, the relevant legal records may be central;

• where incapacity is alleged, medical and functional evidence may be relevant;

• where a financial interest is alleged, the nature and effect of the interest must be examined;

• where abuse of position is alleged, the person should be able to answer the specific conduct alleged.

The Central Government should consider the response before reaching the removal decision.

12. Hearing does not guarantee continuation

The opportunity to be heard is a procedural right. It does not mean that the Chairperson or Member must remain in office after the hearing.

If the Central Government concludes, after considering the person’s response, that a Section 21 disqualification is established, it may remove the person.

Conversely, the hearing may show that:

• the alleged facts are incorrect;

• the conviction does not involve moral turpitude;

• the person remains capable of performing the role;

• the financial interest is remote or has been divested;

• the conduct does not amount to abuse of office;

• continuation is not prejudicial to public interest.

The safeguard ensures an informed decision before the severe consequence of removal.

13. No express separate inquiry body

Section 21 does not require removal to be recommended or determined by:

• the Supreme Court;

• a High Court;

• a judicial committee;

• the Search-cum-Selection Committee;

• the Board itself.

The removal power is vested in the Central Government, subject to the opportunity-of-hearing requirement.

This should be distinguished from statutory schemes under other laws that require a judicial inquiry before removal. Such an inquiry should not be imported into Section 21 unless another applicable rule or law requires it.

The absence of an express judicial inquiry does not eliminate the obligation to act lawfully, fairly and on relevant material.

14. Relationship with disciplinary service rules

The Fifth Schedule makes Parts IV to IX of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 applicable, with necessary modifications, to the Chairperson and other Members as they apply to Group A Central Government officers.

Those service provisions may govern disciplinary and related procedural matters falling within their scope.

However, the statutory grounds and minimum hearing protection in Section 21 remain controlling.

The service rules cannot:

• eliminate a statutory disqualification;

• authorise removal without an opportunity to be heard;

• replace Section 21 with a less protective process.

Likewise, not every disciplinary issue necessarily amounts to a Section 21 disqualification. A matter may require treatment under the applicable service framework without meeting the threshold for removal from office under Section 21.

15. Difference between disqualification and resignation

Disqualification under Section 21 is different from voluntary resignation under Section 22.

15.1 Disqualification

• arises from a statutory ground;

• may prevent appointment or continuation;

• can lead to removal by the Central Government;

• requires an opportunity to be heard before removal.

15.2 Resignation

• is initiated by the Chairperson or Member;

• is voluntary;

• follows the process in Section 22;

• does not require proof of misconduct, incapacity or conflict.

A Member should not be treated as having resigned merely because a disqualification allegation is pending.

Similarly, resignation does not necessarily determine whether misconduct occurred, though it may end the person’s tenure according to Section 22.

16. Difference between disqualification and expiry of term

Completion of the two-year term under Section 20 is not removal for disqualification.

When the term expires:

• no Section 21 finding is required;

• no opportunity of hearing is required merely because the term has ended;

• the person may be considered for reappointment if otherwise eligible.

Section 21 concerns ineligibility and removal based on specified grounds. Section 20 concerns the ordinary duration of office.

17. Effect of removal on the Board

Removal of the Chairperson or a Member does not dissolve the Data Protection Board.

Under Section 18, the Board has perpetual succession. Its legal existence continues despite a vacancy.

The vacancy is then addressed under Section 22 and the applicable appointment framework.

The validity of proceedings conducted amid a vacancy is governed by Section 23, not by Section 21 itself.

18. No automatic disqualification based on allegations

The language of Section 21 requires the statutory condition to exist.

A person should not be treated as disqualified merely because:

• an insolvency petition is filed;

• a criminal allegation is made;

• a medical condition is alleged;

• a conflict is asserted by a party;

• a Board decision is criticised;

• abuse of office is alleged publicly.

The Central Government must determine whether the relevant legal and factual threshold is satisfied.

This is reinforced by Section 21(2), which gives the office-holder an opportunity to answer the matter before removal.

The safeguard is particularly important because allegations may arise from persons affected by the Member’s decisions.

19. No express suspension power under Section 21

Section 21 does not expressly state that the Central Government may suspend the Chairperson or a Member while removal proceedings are pending.

A suspension power may potentially arise under the service rules applied by the Fifth Schedule or another applicable legal provision, but it should not be attributed directly to Section 21 unless the relevant legal source supports it.

The express powers under Section 21 are:

• disqualification from appointment or continuation; and

• removal by the Central Government after an opportunity of hearing.

20. No express post-removal consequence

Section 21 does not itself prescribe:

• forfeiture of salary already earned;

• loss of prior pension rights;

• criminal liability;

• civil damages;

• permanent prohibition from every public office;

• invalidity of every decision previously made by the Member.

Any such consequence must arise under another provision or law.

The removal addresses eligibility to continue in office. It does not automatically determine every other legal consequence of the underlying conduct.

21. What Section 21 does not provide

Section 21 does not establish:

• disqualification merely upon arrest or accusation;

• automatic moral turpitude for every offence;

• disqualification merely because a person has a disability;

• automatic removal for every financial interest;

• removal merely because a decision is unpopular or overturned;

• a right of removal in favour of the Chairperson or Board;

• a prescribed judicial inquiry;

• a fixed removal timetable;

• an express suspension power;

• an appeal procedure against removal within Section 21;

• automatic invalidity of prior Board decisions;

• automatic criminal liability.

Each disqualification must be assessed according to its specific statutory elements.

Conclusion

Section 21 protects the integrity and functioning of the Data Protection Board by preventing unsuitable persons from being appointed or continuing as Chairperson or Member.

A person is disqualified where she:

• has been adjudged insolvent;

• has been convicted of an offence that, in the Central Government’s opinion, involves moral turpitude;

• has become physically or mentally incapable of acting as a Member;

• has acquired a financial or other interest likely to affect her functions prejudicially; or

• has abused her position so that continuation in office would be prejudicial to the public interest.

The grounds apply both at the time of appointment and throughout the term. The financial-interest ground is reinforced by the continuing conflict-of-interest obligation in the Fifth Schedule.

The Central Government has the removal authority, but it cannot remove the Chairperson or a Member without first providing a meaningful opportunity to be heard. This ensures that removal follows consideration of the person’s explanation and relevant evidence rather than mere allegation.

Key point

In substance, Section 21 combines continuing standards of fitness, integrity, capacity and impartiality with a minimum procedural safeguard against removal without a hearing.