India DPDPA: Article 28 – Procedure to be followed by Board
28. Procedure to be followed by Board
(1) The Board shall function as an independent body and shall, as far as practicable, function as a digital office, with the receipt of complaints and the allocation, hearing and pronouncement of decisions in respect of the same being digital by design, and adopt such techno-legal measures as may be prescribed.
(2) The Board may, on receipt of an intimation or complaint or reference or directions as referred to in sub-section (1) of section 27, take action in accordance with the provisions of this Act and the rules made thereunder.
(3) The Board shall determine whether there are sufficient grounds to proceed with an inquiry.
(4) In case the Board determines that there are insufficient grounds, it may, for reasons to be recorded in writing, close the proceedings.
(5) In case the Board determines that there are sufficient grounds to proceed with inquiry, it may, for reasons to be recorded in writing, inquire into the affairs of any person for ascertaining whether such person is complying with or has complied with the provisions of this Act.
(6) The Board shall conduct such inquiry following the principles of natural justice and shall record reasons for its actions during the course of such inquiry.
(7) For the purposes of discharging its functions under this Act, the Board shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, in respect of matters relating to—
(a) summoning and enforcing the attendance of any person and examining her on oath;(b) receiving evidence of affidavit requiring the discovery and production of documents;(c) inspecting any data, book, document, register, books of account or any other document; and(d) such other matters as may be prescribed.
(8) The Board or its officers shall not prevent access to any premises or take into custody any equipment or any item that may adversely affect the day-to-day functioning of a person.
(9) The Board may require the services of any police officer or any officer of the Central Government or a State Government to assist it for the purposes of this section and it shall be the duty of every such officer to comply with such requisition.
(10) During the course of the inquiry, if the Board considers it necessary, it may for reasons to be recorded in writing, issue interim orders after giving the person concerned an opportunity of being heard.
(11) On completion of the inquiry and after giving the person concerned an opportunity of being heard, the Board may for reasons to be recorded in writing, either close the proceedings or proceed in accordance with section 33.
(12) At any stage after receipt of a complaint, if the Board is of the opinion that the complaint is false or frivolous, it may issue a warning or impose costs on the complainant.
What Article 28 Means for Your Business
Article 28 sets out the procedural framework within which the Data Protection Board conducts its inquiries and adjudicates complaints. The procedures are designed to be accessible and efficient while ensuring fairness to all parties.
- The Board is not bound by the Code of Civil Procedure, it has the flexibility to determine its own procedures, which may make proceedings faster than traditional courts but also less predictable.
- Both parties, the complainant and the Data Fiduciary, must be given the opportunity to be heard before any adverse finding is made.
- The Board conducts proceedings digitally where possible, ensure your organisation has clear lines of responsibility for receiving and responding to Board communications promptly.
- Prepare standard operating procedures for how your legal and compliance teams will respond to a Board notice, time limits for response are strict and missing them can lead to adverse findings.