Last week, the Supreme Court agreed to hear a case whose outcome will likely shape the contours of the “right to be forgotten”, known in European information privacy regulation as the “right to erasure”, in India. The top court now has to decide whether the right to be forgotten is a fundamental right and, if so, how it relates to other fundamental rights guaranteed by the Constitution of India.
A three-judge Bench headed by Chief Justice of India (CJI) D Y Chandrachud will hear a challenge against a Madras High Court ruling that on February 27 directed legal search portal Indian Kanoon to take down a judgment in a 2014 rape and cheating case. The acquitted man had moved the Madras HC in 2021, saying that he had been denied the citizenship of Australia because his name appears in the judgment that is publicly available on the legal portal.
What is the right to be forgotten?
The right to be forgotten can be loosely described as the right to remove one’s digital footprint (from Internet searches, etc.) where it violates the right to privacy. In May 2014, the Luxembourg-based Court of Justice of the European Union (CJEU), the highest court in matters concerning the application and interpretation of EU law, affirmed that there exists a right to be forgotten.
In what is commonly referred to as the “Google Spain case”, the court ruled on the plea of Spanish lawyer Mario Costeja González to have Google remove information from 1998 regarding the forced sale of his property due to social security debt.
In 2014, the EU’s top court ruled in favour of Spaniard Mario Costeja González who asked for Google to remove information about him dating back to 1998. (Image source: Reuters)
Citing Articles 7 (respect for private and family life) and 8 (protection of personal data) of the EU Charter on Fundamental Rights, the CJEU ruled that search engines must cater to individual requests to remove data that “appear to be inadequate, irrelevant or no longer relevant or excessive in the light of the time that had elapsed”.
Informational self-determination — an individual’s right to control and limit her personal information — is now widely recognised in EU law. Article 17 of the EU’s General Data Protection Regulation (GDPR) describes the right to erasure. From victims of so-called “revenge porn” to individuals whose personal cases are on the Internet, the right to be forgotten is a crucial remedy.
How is the right interpreted in India?
In India, there is no statutory framework that prescribes the right to be forgotten. However, not all constitutional rights need to be written in black and white. Until the 2017 judgment in Justice K S Puttaswamy v Union of India — in which the apex court explicitly recognised the right to privacy as a fundamental right, placing it as a facet of the right to life, right to equality, and the right to freedom of speech and expression — there were also questions on the right to privacy.
A concurring opinion in the Puttaswamy ruling by Justice S K Kaul mentions the right to be forgotten. Justice Kaul said that this right “does not mean that all aspects of earlier existence are to be obliterated… It would only mean that an individual who is no longer desirous of his personal data to be processed or stored, should be able to remove it from the system where the personal data/ information is no longer necessary, relevant, or is incorrect and serves no legitimate interest”.
Justice Kaul also gave a list of valid justifications for the right to be forgotten to be violated. These included “exercising the right of freedom of expression and information, for compliance with legal obligations, for the performance of a task carried out in public interest, on the grounds [of]… public health, for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, or for the establishment, exercise or defence of legal claims”.
How have courts ruled on the issue?
In several isolated pleas, mostly asking the court’s permission to take down information in court rulings, courts have passed orders with regard to this right.
In the landmark 1994 ruling in Rajagopal vs. State of Tamil Nadu, the SC had talked about a “right to be let alone”.
“A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise…” the SC had said. But the ruling drew a distinction between the right to be let alone and the publication of public records, such as court decisions. “This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others,” the two-judge Bench had held.
More recently, several High Courts have passed rulings that often conflict with one another.
In Dharamraj Bhanushankar Dave vs State Of Gujarat (2017), the petitioner had asked the Gujarat HC to remove details of his acquittal in a murder and kidnapping case, saying that it had come up during background checks while he was applying for an Australian visa. The court refused to grant him relief, holding that court orders are allowed to be in public domain.
However, in [Name Redacted] vs The Registrar General, the Karnataka HC in 2017 ensured that the name of the petitioner would be protected in an annulment case. Although the court did not substantially engage with jurisprudence on the right to be forgotten, it said that the ruling is in keeping “with the trend in the Western countries where they follow this as a matter of rule…in sensitive cases involving women in general…”.
In 2021, the Delhi HC extended the right to be forgotten to even a criminal case by allowing a ruling involving Jorawar Singh Mundy, an American law student, to be taken down from search results. Mundy was acquitted in a customs case involving narcotics. The HC cited “the irreparable prejudice which may be caused to the Petitioner, his social life and his career prospects” as reason for taking down the details of the case.
The Orissa HC in 2020, while hearing a criminal case which involved “revenge porn”, said that the legal possibilities of being forgotten “online or offline cries for a widespread debate”.
“It is also an undeniable fact that the implementation of the right to be forgotten is a thorny issue in terms of practicality and technological nuances… It cries for a clear cut demarcation of institutional boundaries and redressal of many delicate issues which hitherto remain unaddressed in Indian jurisdiction,” the HC said.
A restaurant in Pescara, Italy, where a man stabbed his brother in 2008. In 2019, the 'right to be forgotten' privacy law was used to force a former editor of an Italian news website to delete a story about the incident. (Gianni Cipriano/The New York Times) 
In 2014, the EU’s top court ruled in favour of Spaniard Mario Costeja González who asked for Google to remove information about him dating back to 1998. (Image source: Reuters)
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