Section 23 - Proceedings of Board

1.1 Detailed structured analysis and commentary

Section 23 establishes the basic framework governing how the Data Protection Board of India conducts its institutional business. It addresses:

1. the procedure for Board meetings and transactions of business;

2. decision-making, including through digital means;

3. authentication of orders, directions and instruments;

4. protection of Board proceedings from immaterial defects;

5. temporary discharge of the Chairperson’s functions during absence, illness or another temporary inability.

The section must be read with Rule 19 andRule 20 of the final DPDP Rules, 2025.

Numbering clarification: In the final DPDP Rules,Rule 19, not Rule 18, governs Board meetings and authentication. Rule 18 concerns the salary, allowances and service conditions of the Chairperson and Members. Rule 20 governs the Board’s functioning as a digital office.

Section 23 and Rules 19 and 20 came into force on 13 November 2025.

2. Scope of Section 23

Section 23 concerns the Board’s institutional proceedings and internal transaction of business. It is not the complete code governing inquiries into contraventions of the DPDPA.

Its principal subject is how the Board:

• convenes meetings;

• determines agenda items;

• satisfies quorum;

• decides questions;

• handles conflicts of interest;

• acts in emergencies;

• decides matters by circulation;

• authenticates formal instruments;

• continues functioning despite immaterial defects.

The procedure for inquiry into a particular contravention is governed more specifically by Sections 27 and 28 and the applicable Rules.

Accordingly, a distinction must be maintained between:

• a meeting of the Board, governed by Section 23 and Rule 19; and

• an inquiry or adjudicatory proceeding, governed by Sections 27 and 28, together with the relevant procedural Rules.

A Board meeting may include institutional or administrative business and matters requiring collective Board decisions. An inquiry concerns the determination of a matter brought before the Board under its statutory powers.

3. Board’s authority to transact business through prescribed procedure

Section 23(1) requires the Board to follow the procedure prescribed for:

• holding meetings;

• transacting business at meetings;

• conducting meetings through digital means;

• authenticating orders, directions and instruments.

This means the Board does not possess unlimited discretion to devise meeting procedures inconsistent with the Rules. Rule 19 provides the principal procedural requirements.

At the same time, the Rules do not regulate every administrative detail. The Board may manage matters left open by the Rules, provided its practices remain consistent with:

• the Act;

• the Rules;

• principles governing fair statutory decision-making.

3.1 Meeting procedure under Rule 19

4. Convening meetings and approving the agenda

The Chairperson controls the formal convening of Board meetings.

The Chairperson must:

• fix the date of the meeting;

• fix the time;

• fix the place;

• approve the agenda items;

• cause notice of the meeting and agenda to be issued.

The notice may be issued:

• under the Chairperson’s signature; or

• under the signature of another individual authorised by the Chairperson through a general or special written order.

4.1 Significance of the agenda

The requirement that the Chairperson approve the agenda creates an organised process for identifying the matters to be considered.

Members should receive sufficient information about:

• when the meeting will occur;

• where or through what digital means it will occur;

• what business will be transacted.

Rule 19 does not prescribe:

• a minimum notice period;

• a mandatory agenda format;

• a fixed number of meetings;

• a requirement that every meeting occur physically.

Those matters may be managed administratively, subject to the need for Members to participate meaningfully.

4.2 Authorisation to issue notice

The Chairperson may authorise another individual to issue the notice, but the authorisation must be contained in a:

• general written order; or

• special written order.

A general order may authorise a designated official to issue meeting notices routinely. A special order may authorise issuance for a particular meeting or circumstance.

Delegation of the mechanical act of issuing notice does not transfer the Chairperson’s authority to fix the meeting or approve the agenda.

5. Person presiding over a Board meeting

The Chairperson ordinarily chairs every Board meeting.

If the Chairperson is absent, the Members present may choose one among themselves to chair that meeting.

This meeting-specific arrangement should be distinguished from Section 23(3).

5.1 Chairing a particular meeting

Under Rule 19, the Members present choose one of themselves to preside where the Chairperson is absent from that meeting.

5.2 Discharging the Chairperson’s functions

Under Section 23(3), the senior-most Member discharges the Chairperson’s functions where the Chairperson is unable to act because of absence, illness or another cause.

The two provisions overlap but address different levels of responsibility.

Rule 19 answers who presides at a meeting when the Chairperson is absent. Section 23(3) answers who temporarily performs the wider statutory functions of the Chairperson during a period of inability.

The Member chosen to chair one meeting does not, by that fact alone, become the acting Chairperson for all statutory and administrative purposes.

6. Quorum

Rule 19 fixes the quorum at one-third of the membership of the Board.

Quorum is the minimum participation required for the Board validly to transact business at a meeting.

The Rule refers to one-third of the Board’s membership, not one-third of the Members actually present or currently willing to vote.

Where the calculation produces a fraction, the practical application should ensure that at least one-third of the membership is present. Since a fraction of a person cannot attend, the requirement ordinarily needs to be satisfied by the next whole number.

For a Board comprising five persons, two Members would be needed to satisfy a one-third quorum.

6.1 Quorum must be distinguished from voting majority

Quorum determines whether the meeting can validly transact business.

Voting majority determines whether a proposal is approved.

A meeting may have quorum but a proposal may still fail because it does not receive a majority of votes from the Members present and voting.

6.2 Effect of conflict-based non-participation

Where a Member has an interest in a particular agenda item, Rule 19 prohibits her from participating in or voting on that item.

The Rules do not expressly state whether the interested Member continues to count towards quorum for that item. Since she cannot participate in that business, the safer interpretation is that the decision should be taken only by the eligible, non-interested Members in a manner that preserves the integrity of the meeting and the prescribed quorum.

7. Decision by majority

Questions arising at a Board meeting are decided by a majority of the votes of Members present and voting.

The phrase “present and voting” means that the majority is calculated by reference to Members who:

• are present at the meeting; and

• actually cast a vote on the question.

A Member who abstains is present but does not form part of the votes cast for determining the majority.

7.1 Collective decision-making

The majority rule confirms that the Board ordinarily acts collectively at its meetings.

The Chairperson does not possess a general unilateral power to decide every matter merely because she:

• convenes meetings;

• approves the agenda;

• presides over proceedings.

Unilateral emergency action is permitted only within the specific conditions stated in Rule 19.

8. Casting vote

If the votes are equally divided, the person chairing the meeting has a second or casting vote.

This power belongs to:

• the Chairperson, where she presides; or

• the Member chosen to chair the meeting in the Chairperson’s absence.

The casting vote is additional to the presiding person’s ordinary vote as a Member.

It operates only where there is equality of votes. It is not a general power to override the majority.

The purpose is to prevent institutional deadlock where the Members present and voting are evenly divided.

9. Conflict of interest in an agenda item

If a Member has an interest in an item of business, she must not:

• participate in consideration of that item; or

• vote on it.

The decision must be taken by a majority of the votes of the other Members present and voting.

This is a mandatory recusal requirement.

The Fifth Schedule separately requires the Chairperson and Members to ensure absence of conflicts and not to hold financial or other interests likely to prejudicially affect their functions. Rule 19 addresses the procedural consequence where a Member has an interest in a particular item.

9.1 Meaning of “interest”

Rule 19 does not define the expression or limit it to financial interests.

An interest may include a relevant:

• financial interest;

• professional relationship;

• personal connection;

• prior involvement;

• other interest capable of affecting impartial participation.

A trivial, remote or purely theoretical association should not automatically be treated as disqualifying. The interest must be sufficiently connected with the item of business to require non-participation.

9.2 Effect of recusal

The interested Member is excluded only from the relevant item unless the interest affects the Member’s broader eligibility to continue in office.

A matter-specific interest may therefore be managed through recusal.

A wider or continuing interest likely to affect the Member’s functions prejudicially may engage Section 21(1)(d), which concerns disqualification from continuing as a Member.

10. Emergency action by the Chairperson

Rule 19 allows the Chairperson to take necessary action without first convening a Board meeting where:

1. an emergent situation requires immediate action; and

2. it is not feasible to call a meeting of the Board.

Both conditions are important.

The power does not arise merely because calling a meeting would be inconvenient or slower. There must be:

• a genuine need for immediate action; and

• practical infeasibility in convening the Board.

10.1 Reasons must be recorded in writing

The Chairperson must record the reasons for using the emergency power in writing.

The written reasons should establish:

• what made the situation emergent;

• why immediate action was required;

• why a meeting could not feasibly be called;

• what action was taken.

This requirement prevents ordinary collective decision-making from being routinely bypassed.

10.2 Communication within seven days

The Chairperson must communicate the emergency action to all Members within seven days.

The seven-day period concerns communication of the action. It is not a general period within which the Board must decide every urgent matter.

10.3 Ratification at the next meeting

The emergency action must be placed before the Board for ratification at its next meeting.

The emergency power therefore permits temporary immediate action but preserves subsequent collective oversight.

Rule 19 does not expressly state the consequence if the Board declines ratification. That consequence will depend on:

• the nature of the action;

• whether it has already taken effect;

• the Board’s decision;

• the applicable statutory power.

The Chairperson should therefore confine emergency measures to what is genuinely necessary in the circumstances.

11. Decision by circulation

The Chairperson may direct that an item of business or issue requiring a Board decision be referred to Members by circulation.

The item is approved if a majority of the Members approve it.

Decision by circulation allows the Board to decide a matter without holding a conventional meeting.

The circulation mechanism requires:

• a direction from the Chairperson;

• referral of the matter to Members;

• approval by a majority of Members.

The voting standard differs slightly in formulation from an ordinary meeting. At a meeting, the decision is made by a majority of Members present and voting. For circulation, Rule 19 refers to approval by a majority of the Members, which indicates a majority of the Board’s membership rather than merely a majority of responses received.

11.1 Conflict rules continue to matter

The existence of the circulation procedure does not remove conflict-of-interest requirements.

An interested Member should not participate in a circulated decision concerning the matter in which she has the relevant interest.

11.2 Circulation versus emergency action

The two mechanisms should be distinguished:

• circulation enables collective decision-making without a meeting;

• emergency action enables the Chairperson to act immediately where a meeting is not feasible, subject to later communication and ratification.

Where time permits circulation and collective approval, the emergency power should not be used merely for convenience.

11.3 Authentication of Board instruments

12. Orders, directions and instruments

Section 23 requires prescribed authentication of the Board’s:

• orders;

• directions;

• instruments.

Authentication identifies the document as an official act of the Board.

It does not itself decide whether the underlying order or direction is legally correct. It establishes that the instrument has been formally issued on the Board’s authority.

12.1 Orders

An order may determine or dispose of a matter within the Board’s statutory jurisdiction.

12.2 Directions

A direction may require a person to take or refrain from taking specified action under a statutory power.

12.3 Instruments

“Instruments” is broader and may include formal institutional documents not necessarily amounting to an adjudicatory order or direction.

13. Persons authorised to authenticate

Rule 19 permits authentication under the signature of:

• the Chairperson;

• any Member; or

• any individual authorised by the Board through a general or special written order.

The Rule therefore does not require every order or direction to be signed personally by the Chairperson.

13.1 General or special authorisation

A general written order may authorise a designated individual to authenticate a defined class of instruments.

A special written order may authorise authentication of a particular instrument or matter.

The authority must come from the Board in writing.

13.2 Authentication is not decision-making

A person authorised to authenticate an order does not thereby acquire power to decide the matter.

The underlying decision must have been made by the person, bench or Board authorised under the Act.

Authentication formally evidences the decision. It does not transfer adjudicatory authority to the signatory.

13.3 Time for completion of inquiry

14. Six-month period

Rule 19 requires the Board to complete an inquiry within six months from the date of receipt of the relevant:

• intimation;

• complaint;

• reference; or

• direction under Section 27.

This requirement concerns an inquiry by the Board, rather than every administrative activity or Board meeting.

The starting point is receipt of the statutory matter under Section 27.

The six-month period is intended to prevent inquiries from remaining unresolved indefinitely.

15. Extension of inquiry

The Board may extend the inquiry period, but:

• reasons must be recorded in writing;

• each extension cannot exceed three months at a time.

The Rule does not state that only one extension may be granted. Its use of “at a time” allows successive extensions, provided that:

• each extension is justified;

• reasons are recorded;

• no individual extension exceeds three months.

The Board should not treat extension as automatic. The requirement to record reasons means that the Board must identify why the inquiry cannot be completed within the existing period.

The Rule does not expressly state that an inquiry becomes void automatically if the period expires. Section 23(2)(c) may become relevant where a procedural irregularity is alleged, but whether the delay affects the validity of the proceeding will depend upon its legal effect and whether it affects the merits or causes material unfairness.

15.1 Protection of Board proceedings from immaterial defects

16. Purpose of Section 23(2)

Section 23(2) prevents Board acts and proceedings from being invalidated merely because of specified institutional or procedural defects.

The protected defects are:

• a vacancy in the Board;

• a defect in the Board’s constitution;

• a defect in the appointment of the Chairperson or another Member;

• a procedural irregularity that does not affect the merits.

The purpose is to preserve institutional continuity and prevent technical defects from automatically nullifying otherwise valid proceedings.

The protection is not absolute. The word “merely” is important. It protects proceedings from invalidity based solely on the listed defect. It does not validate an act that is:

• outside the Board’s jurisdiction;

• contrary to an essential statutory requirement;

• affected by material bias;

• decided without required quorum;

• inconsistent with natural justice;

• procedurally defective in a manner affecting the merits.

17. Vacancy or defect in constitution

A Board act does not become invalid merely because:

• a Member’s position is vacant;

• the notified composition has not temporarily been fully restored;

• a defect exists in the Board’s constitution.

This provision must be read with the quorum requirement.

A vacancy does not invalidate the proceeding merely by existing, but the Board must still satisfy the applicable quorum and decision-making requirements.

Section 23(2)(a) should not be interpreted as permitting one Member to act as the entire Board regardless of quorum merely because other posts are vacant.

18. Defect in appointment

An act or proceeding is not invalid merely because of a defect in the appointment of a person acting as Chairperson or Member.

This protects institutional decisions where an appointment defect is later identified.

The provision does not necessarily validate:

• a complete absence of appointment;

• deliberate usurpation of office;

• participation by a person with no colourable authority;

• fraud in the appointment process;

• decisions made outside statutory jurisdiction.

The protection concerns a defect in appointment, not the complete absence of legal authority.

The provision also does not state that the defective appointment itself cannot be challenged or corrected. It protects Board acts from automatic invalidity merely because of the appointment defect.

19. Procedural irregularity that does not affect the merits

Section 23(2)(c) protects a Board act from invalidity where:

1. there was an irregularity in procedure; and

2. the irregularity did not affect the merits of the case.

Both conditions matter.

A minor procedural defect that caused no material prejudice should not automatically nullify the proceeding.

Example

Examples may include an immaterial clerical or procedural error that did not affect:

• the evidence considered;

• the opportunity to be heard;

• the reasoning;

• the outcome.

By contrast, an irregularity may affect the merits where it:

• denies a party a meaningful opportunity to respond;

• excludes material evidence unfairly;

• permits a conflicted Member to decide the matter;

• alters the decision-making majority;

• deprives the Board of required quorum;

• materially shapes the outcome.

Section 23 does not say that every procedural failure is harmless. The legal question is whether it affected the merits.

20. Section 23(2) and jurisdictional errors

Section 23(2) is a saving provision for specified defects. It is not a general cure for the Board acting beyond the DPDPA.

If the Board lacks statutory authority over a matter, the act cannot necessarily be preserved merely by characterising the problem as a procedural irregularity.

A jurisdictional defect is different from:

• a vacancy;

• a defect in appointment;

• an immaterial procedural irregularity.

The Board must remain within the powers and functions assigned by the Act.

20.1 Temporary discharge of the Chairperson’s functions

21. Senior-most Member acts during temporary inability

Section 23(3) applies when the Chairperson is unable to discharge her functions because of:

• absence;

• illness; or

• any other cause.

During that period, the senior-most Member discharges the Chairperson’s functions.

The arrangement operates until the Chairperson resumes her duties.

This ensures continuity without requiring a fresh appointment whenever the Chairperson is temporarily unavailable.

22. Temporary inability, not permanent vacancy

Section 23(3) is directed at temporary inability.

Its text assumes that the Chairperson will resume her duties.

It should therefore be distinguished from a vacancy caused by:

• resignation becoming effective;

• removal;

• death;

• expiry of term;

• another permanent cessation.

A permanent vacancy is filled through fresh appointment under Section 22(2).

Section 23(3) should not be treated as automatically appointing the senior-most Member as the new substantive Chairperson when the office becomes vacant.

23. Meaning of senior-most Member

Section 23 does not define how seniority is to be determined.

Possible factors may include:

• date of appointment;

• date of entering office;

• terms of the appointment framework;

• applicable government service principles.

The determination should follow the applicable institutional and service framework.

“Senior-most” should not automatically be equated with:

• oldest in age;

• longest overall professional experience;

• highest previous office.

The Act refers to seniority as a Member of the Board, subject to the applicable rules for determining it.

24. Scope of acting authority

The senior-most Member discharges the functions of the Chairperson during the period of inability.

This is broader than merely chairing a meeting.

The acting Member may perform the functions assigned to the Chairperson under the Act, Rules and institutional framework, to the extent necessary during that period.

This may include functions relating to:

• convening and chairing meetings;

• approval of agenda;

• allocation or oversight of Board business;

• other Chairperson functions under the Act.

The senior-most Member does not receive a fresh substantive appointment as Chairperson. She temporarily performs the office’s functions.

Once the Chairperson resumes duties, the temporary arrangement ends automatically.

25. Section 23(3) and Rule 19 meeting chair

There is a limited difference between the two provisions:

Where Section 23(3) has already activated and the senior-most Member is discharging the Chairperson’s functions, that Member would ordinarily perform the Chairperson’s meeting-related functions.

Where the Chairperson is simply absent from a particular meeting without a wider inability to discharge office, Rule 19 permits the Members present to choose the person who will chair that meeting.

25.1 Board as a digital office

26. Mandatory digital-office status

Rule 20 provides that the Board shall function as a digital office.

The DPDPA defines a digital office as one that uses an online mechanism through which proceedings, from receipt to disposal, are conducted in online or digital mode.

This means digital functioning is an intended institutional feature rather than merely an optional facility.

The Board may use digital mechanisms for:

• receipt of intimations;

• complaints;

• references;

• directions;

• submissions;

• hearings;

• records;

• orders;

• disposal of proceedings.

The exact technology and filing procedures will depend on the Board’s adopted systems and the Rules.

27. Techno-legal measures

Rule 20 permits the Board to adopt techno-legal measures to conduct proceedings without requiring the physical presence of any individual.

“Techno-legal measures” refers to arrangements combining:

• technology;

• procedural rules;

• legal authentication;

• secure participation;

• reliable recordkeeping.

Such measures may facilitate:

• electronic filing;

• remote attendance;

• digital notices;

• online hearings;

• electronic evidence;

• digital authentication.

Rule 20 does not require every proceeding to be resolved without any physical presence. It enables the Board to conduct proceedings digitally where appropriate.

28. Digital functioning does not remove coercive procedural powers

Rule 20 expressly preserves the Board’s power to:

• summon a person;

• enforce attendance;

• examine the person on oath.

The Board’s digital character therefore does not make participation optional.

A person may be required to appear and give evidence even where the appearance occurs through an authorised digital mechanism.

Where physical presence is legally or practically required, Rule 20 does not remove the Board’s power to require it. The Rule states that digital functioning is without prejudice to those powers.

29. Digital meetings and digital proceedings are related but distinct

Section 23(1) permits Board meetings to be held through digital means.

Rule 20 permits the Board’s proceedings more generally to operate through a digital office.

Accordingly:

• Members may participate digitally in Board meetings;

• parties and witnesses may participate digitally in proceedings;

• files and orders may be handled electronically;

• the Board retains power to require attendance and sworn examination.

Digital participation must still satisfy:

• quorum;

• voting;

• conflict-of-interest;

• authentication;

• procedural fairness.

The use of digital means does not lower the legal standard applicable to the Board’s decision-making.

30. What Section 23 does not provide

Section 23 does not itself:

• define the Board’s substantive jurisdiction;

• create inquiry or penalty powers;

• eliminate quorum requirements during a vacancy;

• validate jurisdictionally invalid acts;

• cure procedural irregularities affecting the merits;

• make every meeting physical;

• require every proceeding to be entirely online;

• allow the Chairperson to bypass the Board routinely;

• make the senior-most Member permanent Chairperson;

• require every order to be signed personally by the Chairperson;

• invalidate every proceeding that exceeds six months;

• permit an interested Member to participate without voting;

• allow authentication authority to become decision-making authority.

Those matters must be resolved through the complete statutory and regulatory framework.

Conclusion

Section 23 establishes the institutional procedure through which the Data Protection Board conducts meetings, decides business and maintains continuity.

Rule 19 gives practical effect to the section by providing that:

• the Chairperson fixes meeting details and approves the agenda;

• the Chairperson ordinarily presides;

• one-third of the membership constitutes quorum;

• decisions are made by majority vote;

• the presiding person has a casting vote in case of equality;

• an interested Member must not participate or vote;

• the Chairperson may take recorded emergency action subject to communication and ratification;

• matters may be decided by circulation;

• authorised persons may authenticate Board instruments;

• inquiries should ordinarily conclude within six months, subject to reasoned extensions of up to three months at a time.

Section 23(2) prevents proceedings from being invalidated merely because of a vacancy, appointment defect or procedural irregularity that does not affect the merits. It does not cure material unfairness, absence of jurisdiction or non-compliance that affects the result.

Section 23(3) ensures continuity during the Chairperson’s temporary inability by authorising the senior-most Member to discharge the Chairperson’s functions until she resumes duty.

Rule 20 completes the framework by requiring the Board to function as a digital office while preserving its authority to compel attendance and examine persons on oath.

Key point

In substance, Section 23 combines collective decision-making, procedural continuity, conflict controls and digital operation while preserving the distinction between harmless procedural defects and failures that materially affect the merits of a proceeding.