│THE RIGHT TO BE FORGOTTEN IN INDIA │RIGHT TO PRIVACY │FUNDAMENTAL RIGHT│

 

│THE RIGHT TO BE FORGOTTEN IN INDIA │RIGHT TO PRIVACY │FUNDAMENTAL RIGHT│

 

Sidhant Malik

Advocate

15^th March 2025

We all recognize the Right to Privacy as a fundamental right enshrined in Article 21 of the Indian Constitution. However, an often-overlooked yet equally significant aspect of this right is the Right to be Forgotten—a concept that remains shrouded in relative obscurity. While privacy is widely acknowledged and fiercely debated, the Right to be Forgotten has not received the attention it truly deserves.

In today’s discussion, we will embark on an in-depth exploration of this crucial yet lesser-known right. We will delve into its legal foundations, analyse its implications, and examine how various courts have interpreted and shaped its contours over time. This thought-provoking issue is becoming increasingly relevant in the digital age, where personal data and online presence can have lasting consequences.

The Right to be Forgotten grants individuals the ability to erase personal data from public access when it becomes irrelevant, outdated, or potentially harmful. While it has been acknowledged as an integral part of the fundamental Right to Privacy under Article 21 of the Indian Constitution, its exact legal standing remains shrouded in ambiguity and debate.

At present, Indian courts recognize the Right to be Forgotten as a subset of the broader Right to Privacy, a fundamental safeguard afforded to every Indian citizen. This right empowers individuals to demand the removal of personal information that no longer serves a legitimate public interest or that could inflict undue harm upon their reputation, dignity, or well-being.

Despite its increasing relevance in the digital age, India lacks a dedicated statutory framework to codify and enforce this right effectively. In an era where personal data lingers indefinitely in the vast digital landscape, the absence of clear legal provisions leaves individuals vulnerable, raising urgent questions about the need for robust legislation to protect this crucial right.

JUDICIAL RECOGNITION OF RIGHT TO FORGOTTEN IN INDIA

The landmark 2017 ruling in Justice K.S. Puttaswamy v. Union of India affirmed the Right to Privacy as a fundamental right under the Indian Constitution, implicitly encompassing the Right to be Forgotten. However, the Supreme Court clarified that this right is not absolute and outlined specific circumstances where it may not be applicable. These exceptions include cases concerning public interest, public health, archival purposes, research, or legal claims.

The judgment emphasized that recognizing this right does not grant individuals an unconditional ability to erase their personal data but rather allows them to seek its removal when it is no longer relevant or lacks a legitimate public purpose.

Although the Right to be Forgotten is acknowledged as a subset of the Right to Privacy under Article 21, Indian laws currently lack a dedicated statutory framework to regulate and enforce it effectively.

Digital Personal Data Protection Act, 2023: This Act acknowledges the right to "erasure," allowing individuals to request the removal of their personal data. However, its applicability to court records and publicly available information remains uncertain. The lack of clear legal provisions has led to conflicting interpretations in the courts, creating ambiguity in how this right is enforced and balanced against public interest and transparency.

Information Technology Rules, 2021: It mandates intermediaries to remove or restrict access to content that infringes on an individual's privacy within 24 hours of receiving a complaint. This obligation aims to provide swift redressal, ensuring that personal data or sensitive information is not misused or unlawfully disseminated.

WHY RIGHT TO BE FORGOTTEN SHOULD BE ADOPTED?

Control Over Personal Information: Individuals should have the right to control their personal information and identity in the digital age. Governments and private entities can significantly interfere with privacy by tracking and recording online activities. Many instances of personal information, such as intimate photos or private details, are shared online without consent.

Mitigating Digital Damage: The presence of outdated or incorrect information can have long-lasting negative effects on an individual's life, including their personal relationships and professional opportunities. This right helps mitigate such harms by allowing for the removal of outdated or irrelevant data. Individuals should not be continually penalised for their past, especially when they have moved on or changed. The right ensures they are not unjustly judged based on outdated information. Right to Be Forgotten ensures that individuals are not compelled to live with the repercussions of unlawfully disclosed personal information.

HOW INDIAN COURTS HAVE DEALT WITH RIGHT TO FORGOTTEN?

The Delhi High Court in the matter ABC v. State & ANR has noted that keeping information online after quashing criminal proceedings serves no public interest. The court emphasised the need to balance the public’s right to information with an individual’s right to privacy.

A man, acquitted of the charges filed against him, filed the plea. He requested the Court Registry to mask his name in the orders and pleadings related to a criminal case.

Justice Amit Mahajan held, “There is no reason why an individual who has been duly cleared of any guilt by law should be allowed to be haunted by the remnants of such accusations easily accessible to the public. Such would be contrary to the individual’s right to privacy which includes the right to be forgotten, and the right to live with dignity guaranteed under Article 21 of the Constitution of India.” 

The Court recognized that the right to privacy includes the right to be forgotten. It noted that in the digital era, any information uploaded to the internet tends to acquire a sense of permanence. The Court also allowed the individual to request relevant platforms and public search engines to mask the judgment. It ensured that only anonymized names of the parties would be displayed.

In another case, The bench of CJI DY Chandrachud and Justices JB Pardiwala and Manoj Misra in the matter Ikanoon software development Pvt. Ltd. Versus Karthick theodore and Ors. SLP(C) No. 15311/2024, wherein a challenge by Indian Kanoon, (a legal database website) against the Madras High Court order, which directed the portal to take down the copy of the judgement which revealed the identity of a person acquitted in a sexual assault case. The impugned order observed that though the courts were expected to preserve data as a court of record, it was also required to strike a balance between the collection of such data and the protection of a person's personal data.

The counsel for the petitioner, submitted that the decisions of the High Courts on the issue of the right to be forgotten are at loggerheads. While the Kerala and Gujarat High Courts hold that there is no right to be forgotten, the impugned order from Madras High Court says to the contrary. He stressed that "there is a genuine question of law emerging from contradictory judgements from different High Courts"

During the hearing, the CJI raised concerns about the High Court's directive, questioning how a publicly available judgment could be ordered to be taken down. He emphasized that once a judgment is delivered, it becomes part of the public record.

"Assuming you are being acquitted, how can the HC direct him (Indian Kanoon) to pull down the judgement...once the judgement is delivered it is part of the public record"

The CJI noted that while the court might sometimes request redaction of masking of names in sensitive cases, ordering the removal of an entire judgment was 'far-fetched'.

"In a given case like child sexual abuse, we may say redact the names or mask the names of the victims or witnesses. That is the jurisdiction of the court, but to say the judgement will be pulled down is far-fetched."

The Chief Justice of India (CJI) emphasized that setting such a precedent could lead to demands for the removal of judgments in other cases, including those related to financial details in arbitration matters. Additionally, the CJI highlighted that permitting such a directive could open the door for convicted individuals who have completed their sentences to request anonymity in judicial rulings.

"Then people may say look my commercial secrets are involved, there is an arbitration case, pull down the judgement in the arbitration case, that will have very serious ramifications"

"Take the reverse case, can a person (supposedly) convicted under S. 467 of the penal code suffer imprisonment, can that person come back and say that the fact that the judgement is borne on the website of the Supreme Court or High Court, people will know he was convicted, and he has served the sentence, now pull it down. Ultimately it's a public record."

 

CONCLUSION:

The right to be forgotten is rapidly becoming one of the most crucial fundamental rights of the future. As technology advances and personal data becomes increasingly vulnerable, this right will serve as a safeguard for individual privacy and dignity. However, it is equally critical to recognize that not everything can simply be erased under this provision. Legal precedents hold invaluable knowledge and essential credentials that shape justice, accountability, and societal progress. If misused, an unchecked right to be forgotten could risk erasing history itself, leading to a dangerous void in legal and institutional memory.

 

│Supreme Court│ Delhi High Court │Right to Forgotten│ Right to Privacy │Sidhant Malik│