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How to Read the Public Servant Deeming in Section 25 of the DPDP Act

Writer: Kaustav Chowdhury
Kaustav Chowdhury
13 hours ago
5 min read

Section 25 of the Digital Personal Data Protection Act, 2023 is one sentence long, it is in force, and it does its work by pointing at a provision of a statute that no longer exists. The public servant deeming is therefore a provision that cannot be read on its own face. It has to be read with the repeal that overtook it.

Step 1: Note That This One Is Operative

Under commencement notification G.S.R. 843(E) dated November 13, 2025, sections 18 to 26 came into force on publication. Section 25 sits inside that group, so it is operative now, while the obligations on data fiduciaries are not.

That matters because the deeming attaches to the Board's people rather than to any regulated person. The provisions that establish and constitute the Board are operative, and the status this section confers attaches to the holders of those offices as and when they are appointed.

Step 2: Read the Deeming and Respect Its Limits

Section 25 provides that the Chairperson, Members, officers and employees of the Board shall be deemed, when acting or purporting to act in pursuance of provisions of the Act, to be public servants within the meaning of section 21 of the Indian Penal Code.

Three limits are on the face of it. The status is conferred by a deeming rather than by office, so it is not a general description of those persons. It is tied to acting or purporting to act under this Act, so conduct outside the Act is outside the section, while a purported exercise of power is expressly inside it. And it is conferred within the meaning of one named definition, which is the point the next step turns on.

Step 3: Notice That the Reference Is to a Repealed Provision

Section 21 of the Indian Penal Code was the definition of public servant. The Bharatiya Nyaya Sanhita, 2023 replaced the Penal Code, and the corresponding definition in the Sanhita is clause (28) of section 2.

So a reader who goes looking for section 21 of the Penal Code in order to apply section 25 will not find an operative provision there. That follows from an Act passed in 2023 and commenced in 2025, and it is resolved by general interpretation law rather than by anything in the Act itself.

Step 4: Apply Section 8 of the General Clauses Act

Section 8(1) of the General Clauses Act, 1897 provides that where a Central Act made after the commencement of that Act repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.

Applied here, the reference in section 25 to section 21 of the Penal Code is construed as a reference to the re-enacted definition in the Sanhita. The qualification is the part to keep in view: it operates unless a different intention appears, so the construction is a default and not an amendment of section 25.

Step 5: Do Not Carry the Deeming Into Other Statutes

Section 25 confers the status within the meaning of one named definition. It does not say that the Board's people are public servants for the purposes of every statute that uses the expression, and it says nothing at all about any other statute.

Where a question arises under another enactment, it is answered on that enactment's own words and on whatever definition that enactment applies, not on section 25. Treating the section as a conferral at large is the error to avoid, because the sentence reads as though it confers a status at large.

Step 6: Read It Together With Section 35

Section 35 is in the same position on commencement, having come into force on publication. It provides that no suit, prosecution or other legal proceedings shall lie against the Central Government, the Board, its Chairperson and any Member, officer or employee thereof for anything which is done or intended to be done in good faith under the provisions of the Act or the rules made thereunder.

The two sections face in opposite directions and both are live. Section 25 attaches a status that carries exposure; section 35 bars legal proceedings for anything done or intended to be done in good faith. Good faith is therefore the hinge on which the pair turns, and an argument on either section that does not address it is incomplete.

Step 7: Record the Capacity in Which You Are Dealing

Because the deeming is tied to acting or purporting to act under the Act, the capacity in which a Board officer acts is a question of fact that a file can answer or fail to answer. Record who communicated, in what capacity, under which provision, and on what date, on every file that involves the Board.

That record costs nothing while nothing is in dispute and it is the first thing anyone will want if the question of capacity is ever raised. It is also the record that shows whether the conduct complained of was under the Act at all.

Common Pitfalls to Avoid

  • Treating section 25 as future law: Sections 18 to 26 came into force on publication of the commencement notification.

  • Reading the deeming as a status of office: It attaches when the person is acting or purporting to act in pursuance of provisions of the Act.

  • Overlooking the word purporting: A purported exercise of power is expressly within the deeming.

  • Looking up section 21 of the Penal Code and stopping: The Code has been replaced and the corresponding definition is clause (28) of section 2 of the Sanhita.

  • Treating the construction as automatic: Section 8 of the General Clauses Act operates unless a different intention appears.

  • Carrying the deeming into other statutes: The status is conferred within the meaning of one named definition, and the section does not speak to any other enactment.

  • Arguing either section without good faith: Section 35 bars suits, prosecutions and other legal proceedings for anything done or intended to be done in good faith under the Act or the rules.

Key Statutory Provisions

  • Section 25 of the Digital Personal Data Protection Act, 2023: Members and officers to be public servants. The Chairperson, Members, officers and employees of the Board are deemed, when acting or purporting to act in pursuance of provisions of the Act, to be public servants within the meaning of section 21 of the Indian Penal Code.

  • Section 35 of the Act: Protection of action taken in good faith. No suit, prosecution or other legal proceedings lie against the Central Government, the Board, its Chairperson and any Member, officer or employee thereof for anything done or intended to be done in good faith under the Act or the rules.

  • Section 8 of the General Clauses Act, 1897: Construction of references to repealed provisions. Where a Central Act repeals and re-enacts a provision of a former enactment, references elsewhere to the repealed provision are construed as references to the provision so re-enacted, unless a different intention appears.

  • Clause (28) of section 2 of the Bharatiya Nyaya Sanhita, 2023: The definition of public servant in the Sanhita, which corresponds to section 21 of the Indian Penal Code on the Ministry comparative table.

  • Commencement notification G.S.R. 843(E) dated November 13, 2025: Brings sections 18 to 26, which include section 25, and section 35 into force on publication of the notification.

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.

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