Top court to address right to be forgotten in judicial orders
A bench, headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud, was addressing a challenge by Indian Kanoon, a legal database website, against a Madras high court order.
The Supreme Court on Wednesday deliberated whether the right to be forgotten, a subset of the right to privacy, could be applied to judicial orders, which are typically public documents.
A bench, headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud, was addressing a challenge by Indian Kanoon, a legal database website, against a Madras high court order. This order dated March 3 directed the portal to remove a judgment that revealed the identity of a person acquitted in a sexual assault case.
The bench, also comprising justices JB Pardiwala and Manoj Misra, raised significant concerns about the implications of the high court’s directive, questioning how a publicly accessible judgment could be mandated to be taken down.
“Once a judgment is delivered, it becomes part of the public record. Assuming you are acquitted, how can the high court direct him (Indian Kanoon) to pull down the judgment?” the bench wondered.
The bench acknowledged that while redaction of names in sensitive cases, such as those involving child sexual abuse, could be justified, removing an entire judgment was excessive.
Warning of the potential slippery slope, it remarked: “People may say look my commercial secrets are involved, there is an arbitration case, pull down the judgment in the arbitration case. That will have very serious ramifications.”
Advocate Apar Gupta, representing Indian Kanoon, highlighted the conflicting positions of various high courts on the right to be forgotten. While the Kerala and Gujarat high courts have held that there is no right to be forgotten, the Madras high court’s impugned order suggests otherwise, he pointed out.
“There is a genuine question of law emerging from contradictory judgments from different high courts,” Gupta argued, prompting the CJI to acknowledge the necessity to settle the law.
“We will have to settle the law,” remarked the bench as the bench issued a notice in the petition and put the Madras high court’s order in abeyance. “Issue notice. In the meantime, the directions of Madras high court shall remain stayed,” it directed.
The case before the Supreme Court stemmed from the proceedings before the high court initiated by a man who challenged an order rejecting his request to redact his name and other details from a judgment acquitting him in a sexual assault case. The man argued that the right to be forgotten and privacy are inherent in Article 21 of the Constitution, emphasising that judgments containing personal details can perpetuate stereotypes even after legal exoneration. The high court held that while courts are expected to maintain records, it is within their discretion to make such data publicly available. The court stressed the need to balance open justice with the privacy rights of individuals, particularly in sensitive cases.
The Supreme Court’s intervention highlights the need for a delicate balance in defining and protecting individual rights within the broader spectrum of public interest and transparency. The apex court’s disposition to settle the law comes at a time when the growth of the Internet and social media has increasingly blurred the boundaries of privacy, putting out in public domain the most intricate details of human lives. Besides, the right to be forgotten entails a delicate balance between one’s right to privacy and the right to information in the larger public interest or for the State’s legitimate needs.
To be sure, the current data protection regime in India, under the 2000 Information Technology Act and 2023 Digital Personal Data Protection Act, do not accord statutory force to the right to be forgotten.
The right to be forgotten is considered to be part of the right to privacy under Article 21, as established in the landmark KS Puttaswamy vs Union of India (2017) case. This right seeks to empower individuals to have their personal information removed from public access, particularly when it no longer serves its original purpose or is no longer relevant.
The nine-judge 2017 judgment consisted of six opinions. Three of these opinions, authored by justices Chandrachud, Rohinton F Nariman and Sanjay Kishan Kaul, underscored the right of an individual to control personal information.
Zone of privacy is but an acknowledgement that each individual must be entitled to chart and pursue the course of development of their personality, justice Chandrachud had held while adding that “privacy protects the individual from the searching glare of publicity in matters which are personal to his or her life”.
Justice Nariman (since retired), in his opinion, recognised the concept of “informational privacy”, emphasising an individual may have control over the dissemination of material which is personal to them.
Justice Kaul (since retired) acknowledged the new threats in an age of digital footprints while emphasising the significance of the right to be left alone and the right to be forgotten. According to him, an individual’s privacy needs to be protected both from the State and the non-State actors, which can gather and analyse data to shape behaviour or influence the decision-making process.
In July 2022, justice Kaul’s bench asked the top court registry to work out a mechanism so that details of a couple embroiled in a bitter marital discord can be removed from search engines and the Internet, expanding the ambit of the right to privacy and the right to be forgotten.
The debate also comes at a time when an increasing number of people are approaching media houses to take down reports referring to them, armed with judicial orders acquitting them of accusations.
