The petitioner challenged this decision before a larger bench of the HC. On February 27, 2024, the petitioner was successful in securing an order directing the complete removal of the judgment from Indian Kanoon and ordered the HC registry to redact the name of the petitioner from the judgment. The HC adopted the principle of fresh start as envisaged under the Juvenile Justice Act while recognising the petitioner’s right to forget and noted, “A careful balance has to be achieved between the concept of Open Court and open access justice, and the cry for privacy. There could be no totalitarian application of either one concept as that would defeat the purpose of both equally valid concepts.”

Presently, the Supreme Court has stayed this order calling it “far-fetched” as it proceeds to hear the appeal. A bench consisting of Chief Justice DY Chandrachud and justices JB Pardiwala and Manoj Misra, while hearing the petition, termed the dictate by the Madras HC a bit extreme, stating, “To say that the judgement, a public document, be pulled down will have very serious ramifications.”

Global legal precedent for the right to be forgotten

The right to be forgotten traces its origin to the French right of oblivion. Under early French laws, a convict after completion of his sentence had a right of oblivion i.e. erasure of his criminal history. The present-day right to forget gained prominence in 2014 in the case of Google Spain SL vs Agencia EspanÞola de Proteccioìn de Datos, Mario Costeja Gonzaìlez. Mario Costeja filed a complaint alleging that a Google search on his name revealed years-old auction notices which had since then been resolved. The case reached the European Union’s Court of Justice, which held that individuals have a right to ask search engines to remove personal information and recognised the right to be forgotten or erased from the Internet.

The General Data Protection Regulation of the European Union recognises the right to be forgotten under Article 17 and provides an illustrative list of circumstances wherein a person is entitled to seek the erasure of personal data. These include when the data is no longer necessary, when the individual withdraws his consent which they had previously given to process the data, among other factors. However, the right is not absolute and subject to restrictions which override it. These include the exercise of the right of freedom of expression and information, the necessity of public health, public interest, and historical or scientific research among others.

The right to be forgotten in Indian courts

High courts across the country have been asked to rule on the right to be forgotten. The first case on this issue was Dharamraj Bhanushankar Dave v. State of Gujarat and Ors before the Gujarat HC in 2015. In this case, a person acquitted of various criminal charges by both the sessions judge and HC sought the removable of the judgment from the internet database. His grievance was that despite the judgment being ‘non-reportable’, a mere Google search led to the judgment popping up, which violated his rights under Article 21. The HC dismissed his petition noting that there was no fundamental right violation. The court also noted that there is no law to remove judgments from the internet.

However, in 2017 the Karnataka HC took a contrary view in Sri Vasunathan v. The Registrar General. The said petition had been filed by a father seeking the erasure of previous criminal litigation undertaken by his daughter. He believed that the information on the public record would harm his daughter’s relationship with her husband and reputation in society would be tarnished. The HC, allowing the erasure, noted, “This would be in line with the trend in western countries of the 'right to be forgotten' in sensitive cases involving women in general and highly sensitive cases involving rape or affecting the modesty and reputation of the person concerned.”

The same year Supreme Court in the landmark Justice K.S.Puttaswamy (Retd) v. Union of India and Others judgment referred to the right to be forgotten. CJI Chandrachud said, “The right of an individual to exercise control over his personal data and to be able to control his/her own life would also encompass his right to control his existence on the internet. Needless to say, this would not be an absolute right. The existence of such a right does not imply that a criminal can obliterate his past, but that there are variant degrees of mistakes, small and big. and it cannot be said that a person should be profiled to the nth extent for all and sundry to know. ”

Subsequently, HCs have traced the right under Article 21 of the Constitution. Courts have till now allowed the erasure of names in cases of family/matrimonial disputes, cases where investigation disclosed the commission of no crime and removal of explicit online material in sexual assault cases.

While human memory fades with time, the internet never forgets. Thus, the right to forget/right to erasure is an important right to safeguard personal data, dignity and reputation. However, the same is not an absolute right and cannot be at the cost of other rights namely freedom of speech and expression, public interest, research purposes and open justice. Till the legislature enacts a law, we will have to wait for the Supreme Court to pave the way.

Parijata Bharadwaj, a lawyer and researcher based in New Delhi, co-founded the Jagdalpur Legal Aid Group that offered legal services to adivasis in Chhattisgarh. The views expressed are personal.