Introduction

The Supreme Court of India recently agreed to hear a case that will significantly shape the contours of the “right to be forgotten” in India. This right, referred to as the “Right To Erasure” in European information privacy regulation, is poised to redefine privacy and data protection laws in the country. The case, presided over by a three-judge Bench headed by Chief Justice of India (CJI) D Y Chandrachud, challenges a Madras High Court ruling from February 27, which directed the legal search portal Indian Kanoon to take down a judgment in a 2014 rape and cheating case. The acquitted man, whose name appears in the publicly available judgment, had been denied Australian citizenship due to this online presence.

Understanding the Right to be Forgotten

• The right to be forgotten is essentially the right to remove one’s digital footprint from the internet where it violates the right to privacy.
• This concept gained prominence in May 2014 when the Court of Justice of the European Union (CJEU) affirmed its existence.
• In the landmark “Google Spain case,” the court ruled that search engines must cater to individual requests to remove data deemed inadequate, irrelevant, or excessive over time.
• This ruling was grounded in Articles 7 and 8 of the EU Charter on Fundamental Rights, emphasizing respect for private and family life and protection of personal data.
• Informational self-determination, the right of individuals to control and limit their personal information, is now a well-recognized principle in EU law.
• Article 17 of the EU’s General Data Protection Regulation (GDPR) explicitly describes the right to erasure, highlighting its importance for victims of “revenge porn” and individuals whose personal cases are undesirably accessible online.

The Right to be Forgotten in India

• India currently lacks a statutory framework explicitly prescribing the right to be forgotten.
• However, the Indian judiciary has recognized the Right To Privacy As A Fundamental Right.
• This recognition was solidified in the 2017 judgment in Justice K S Puttaswamy v. Union of India, where the Supreme Court acknowledged privacy as a facet of the right to life, equality, and freedom of speech and expression.
• Justice S K Kaul, in a concurring opinion in the Puttaswamy case, discussed the right to be forgotten.
• He clarified that this right does not imply obliterating all aspects of an individual’s past but allows for the removal of personal data when it is no longer necessary, relevant, or correct.
• Justice Kaul also provided justifications for when the right to be forgotten might be violated, such as for exercising freedom of expression, compliance with legal obligations, public interest tasks, public health, archiving purposes, and legal claims.

Judicial Interpretations and Rulings

• Indian courts have addressed the right to be forgotten in various isolated pleas, often involving requests to take down court rulings.
• The landmark 1994 ruling in R Rajagopal vs. State of Tamil Nadu discussed a “Right To Be Let Alone,” distinguishing it from the publication of public records like court decisions.
• The Supreme Court held that once a matter becomes public record, the right to privacy ceases to exist, making it a legitimate subject for public comment.
• Recent High Court rulings have shown varied interpretations.
• For instance, in Dharamraj Bhanushankar Dave vs. State Of Gujarat (2017), the Gujarat High Court refused to remove details of an acquittal in a murder and kidnapping case from public records, asserting that court orders should remain in the public domain.
• Conversely, the Karnataka High Court in 2017 protected the petitioner’s identity in an annulment case, aligning with trends in Western countries to protect sensitive information involving women.
• In 2021, the Delhi High Court extended the right to be forgotten to a criminal case, allowing the removal of a ruling involving Jorawar Singh Mundy from search results.
• The court cited potential irreparable prejudice to Mundy’s social life and career prospects as justification.
• Similarly, the Orissa High Court, while hearing a criminal case involving “Revenge Porn,” emphasized the need for a broad debate on the right to be forgotten, acknowledging its practical and technological challenges.

Conclusion

As the Supreme Court of India deliberates on the right to be forgotten, its decision will have profound implications for privacy and data protection in the country. Balancing this right with freedom of expression and public interest will require nuanced judicial interpretation and possibly legislative action. The evolving legal landscape in India must address these delicate issues to ensure a robust framework for protecting individual privacy in the digital age.