How to Argue the Bar of Jurisdiction Under Sections 38 and 39 of the DPDP Act

Kaustav Chowdhury

20 hours ago

6 min read

Almost every account of the Digital Personal Data Protection Act, 2023 is written about obligations that commence in 2027. Two sections are already operating, and they are the two that bear on a court's power to hear anything at all. The bar of jurisdiction in section 39 and the consistency rule in section 38 both came into force on publication of the commencement notification, which puts them in force while the obligations they sit behind are not.

Step 1: Fix the Commencement Position, Because It Is Counter-intuitive

Under commencement notification G.S.R. 843(E) dated November 13, 2025, section 35 and sections 38 to 43 came into force at once, together with sub-sections (1) and (3) of section 44. The obligations in Chapter II and the rights in Chapter III have not commenced, and neither have the Board's powers in section 27, its procedure in section 28, the penalties in section 33, the power to call for information in section 36 or the power to issue directions in section 37.

One entry in that list is split, and the split is the whole of the timing question. Clause (d) of sub-section (1) of section 27 commences one year after publication, in November 2026, while the rest of section 27 waits for the eighteen month point along with section 28, section 33, section 36 and section 37. The Board therefore acquires one power six months before it acquires any of the others.

So the position is the reverse of what a reader of the commentary would expect. The machinery sections that bar a court are in force and the substantive sections they exist to protect are not.

Step 2: Read Section 39 as Two Separate Bars

Section 39 is a single sentence, and it does two different things. The first is that no civil court shall have the jurisdiction to entertain any suit or proceeding in respect of any matter for which the Board is empowered under the provisions of the Act. The second is that no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power under the provisions of the Act.

The two limbs have different subjects, different addressees and, as it turns out, different present effect. The first speaks only to civil courts and only to matters within the Board's empowerment. The second speaks to any court or other authority and to any power under the Act. Running them together is the most common error available here.

Step 3: Work Out What the First Limb Bars Today

The first limb does not define the barred matters itself. It defines them by reference to the matters for which the Board is empowered, and the Board's empowering provisions are section 27 and section 28, neither of which has commenced. Until the first of them does, the Board is empowered in respect of nothing.

The consequence is narrow and worth stating plainly rather than assuming against the client. On the text, a suit on a data grievance is not presently excluded by the first limb, because there is as yet no matter for which the Board is empowered. The first such matter arrives with clause (d), which empowers the Board, on receipt of an intimation of breach of any condition of registration of a consent manager, to inquire into that breach and impose a penalty.

From that point the first limb bites on that subject and on nothing else, and it widens when the rest of section 27 and section 28 commence. The answer depends on the date of the hearing and on the subject matter, not on the pleading alone.

Step 4: Treat the Second Limb as Already Operative

The second limb is not tied to the Board at all. It refers to any action taken or to be taken in pursuance of any power under the provisions of the Act, and several such powers are in force now. Section 40 is the rule making power, section 41 provides for the laying of rules and certain notifications, section 42 is the power to amend the Schedule and section 43 is the power to remove difficulties.

An application to restrain the exercise of one of those powers therefore meets an express statutory bar, not a discretionary reluctance. That is a materially different argument from the ordinary reluctance of a court to injunct subordinate legislation.

Step 5: Use Section 38(1) Before Section 38(2)

Section 38 has two sub-sections and they are frequently cited in the wrong order. Sub-section (1) provides that the provisions of the Act shall be in addition to and not in derogation of any other law for the time being in force. Sub-section (2) provides that in the event of any conflict between a provision of the Act and a provision of any other law, the provision of the Act shall prevail to the extent of such conflict.

Sub-section (1) is the general rule and sub-section (2) the exception. The Act does not displace the remedies, obligations or regulators that existed before it, so a submission opening on the overriding effect has skipped the provision that governs the ordinary case.

Step 6: Identify a Real Conflict Before Pleading One

Because sub-section (2) operates only on a conflict, and only to the extent of it, the conflict has to be an incompatibility rather than an overlap. Two provisions applying to the same processing are not in conflict if both can be obeyed.

The practical test is whether compliance with one provision necessarily involves breaching the other. Where it does not, the default under sub-section (1) is cumulative compliance. Where it does, the override is confined to the conflicting provision.

Step 7: Keep the Commencement Dates on the File

The scope of the first limb of section 39 will change as section 27 and section 28 commence, so record the date of the cause of action, the date of institution and each hearing on every file that touches it. A matter instituted before commencement of section 27 and section 28 and heard after it raises a question that the record has to be able to answer.

The same discipline applies to section 38. The conflict asserted has to be with a provision in force at the material time, which for most of the Act it is not.

Common Pitfalls to Avoid

Treating the whole Act as future law: Section 35, section 38, section 39, section 40, section 41, section 42 and section 43 came into force on publication of the commencement notification.
Reading section 39 as one bar: The first limb addresses civil courts and matters within the Board's empowerment; the second addresses any court or other authority and any power under the Act.
Assuming the first limb already excludes a suit: It is defined by reference to the matters for which the Board is empowered, and neither section 27 nor section 28 has commenced.
Missing the clause (d) split: Clause (d) of sub-section (1) of section 27 commences a year after publication, so the consent manager registration subject reaches the Board before the rest.
Overlooking the second limb: The rule making power and the power to remove difficulties are in force, so an injunction against their exercise is barred by the section itself.
Citing section 38(2) before section 38(1): The Act is in addition to and not in derogation of other law, and the override operates only on a conflict.
Pleading overlap as conflict: Two provisions that can both be obeyed are not in conflict, and the override extends only to the extent of the conflict.
Leaving the dates off the record: The scope of the first limb changes on commencement, so the dates of the cause of action, the institution and the hearing all matter.

Key Statutory Provisions

Section 38 of the Digital Personal Data Protection Act, 2023: Consistency with other laws. The Act is in addition to and not in derogation of any other law in force, and on a conflict it prevails to the extent of the conflict.
Section 39 of the Digital Personal Data Protection Act, 2023: Bar of jurisdiction. No civil court may entertain a suit or proceeding on a matter for which the Board is empowered, and no court or other authority may grant an injunction against any action taken or to be taken under any power in the Act.
Commencement notification G.S.R. 843(E) dated November 13, 2025: Brings section 35, section 38, section 39, section 40, section 41, section 42 and section 43 into force on publication, with sub-sections (1) and (3) of section 44. Clause (d) of sub-section (1) of section 27 follows one year after publication, and the rest of section 27 with section 28, section 33, section 36 and section 37 at eighteen months.

Sources and References

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Readers should consult a qualified legal professional for advice specific to their circumstances.