New Delhi: For Ashutosh Kaushik, who won adventurous task-based reality show Roadies 5.0 in 2007 and the second season of reality show Bigg Boss in 2008, articles on a drunk driving incident from a decade ago have been regularly coming back to haunt him.
Kaushik also participated as a video jockey in MTV Roadies 8 and the sixth season of Bigg Boss. However, he had to approach the Delhi High Court in 2021, emphasising his ‘right to be forgotten’ and to direct Google to remove his videos, photos, and articles from various online platforms.
The reality show participant submitted to the court that despite his success on the silver screen, he has to “suffer utmost psychological pain for his diminutive acts, which were erroneously committed a decade ago as recorded videos, photos, articles of the same are available on various search engines/ online platforms.”
While Kaushik’s petition remains pending in the high court, the right to be forgotten is seeing a sudden upsurge in the country, with several individuals, ranging from those embroiled in matrimonial disputes, to those acquitted in POCSO (Protection of Children from Sexual Offences Act, 2012) and rape cases, approaching courts in an attempt to erase their past from the vast world wide web.
The right to be forgotten allows a person to limit, de-link, delete, or correct the disclosure of personal information on the Internet. It serves as a tightrope between a person’s right to privacy and the right to information.
One of the most recent cases of applying for the right to be forgotten involved a person acquitted by the trial court under Sections 363 (kidnapping), 366 (kidnapping, abducting or inducing woman to compel her marriage) and 376 (rape) of the Indian Penal Code (IPC), along with provisions of the POCSO Act, and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. On 11 July, the Himachal Pradesh High Court, while upholding the acquittal of the rape accused, directed its registry to mask the names of both the accused and the victim from its digital records, citing the right to be forgotten.
However, experts as well as high courts remain divided over the scope of the right to be forgotten, especially with regard to court records. While some call the right “important”, especially for matrimonial disputes which usually involve a spate of allegations and counter allegations, others have now urged the Supreme Court to bring more clarity over the contours of the right to be forgotten.
When can the right be recognised
The impetus for implementation of the right to be forgotten in India grew from the Supreme Court’s landmark judgment recognising the right to privacy back in 2017.
At the time, in his concurring opinion, Justice Sanjay Kishan Kaul had observed that 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”.
Justice Kaul had noted that the European Union Regulation of 2016 has recognised the right to be forgotten, but opined that this does not mean that all aspects of earlier existence are to be obliterated, as some may have a social ramification. He observed that if we were to recognise a similar right, 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.”
However, at the same time, he had observed that this right cannot be exercised where the information or data is necessary for: (1) exercising the right of freedom of expression and information; (2) compliance with legal obligations; (3) the performance of a task carried out in public interest, or public health; (4) archiving purposes in the public interest; (5) scientific or historical research purposes or statistical purposes; or (6) the establishment, exercise or defence of legal claims.
The report submitted by the Justice B.N. Srikrishna Committee back in 2018 had also spoken about the right to be forgotten, asserting that it is “an idea that attempts to instill the limitations of memory into an otherwise limitless digital sphere”.
It had emphasised the requirement to balance the right to privacy with the freedom of speech and expression as well as the right to information.
‘Shadow of crime’
With the Supreme Court recognising the right to be forgotten in a 2019 judgment, several accused began approaching high courts with writ petitions demanding implementation of the right.
The Supreme Court, in July 2022, recognised the right to be forgotten as being a part of the right to privacy, and ordered its registry to work out a mechanism to remove personal details of litigants entangled in matrimonial litigation.
However, the Kerala High Court, in December that year, ruled that the right to be forgotten cannot be claimed with reference to current records or proceedings before the court. It said that if claimed in current proceedings, the right to be forgotten will be “an affront to the principle of open justice and the larger public interest.”
In fact, the court declared that “a claim for the protection of personal information based on the right to privacy cannot co-exist in an Open Court justice system”, while adding that it is for the legislature to fix grounds for the invocation of such a right. However, at the same time, it added that the court, “having regard to the facts and circumstances of the case and duration involved related to a crime or any other litigation”, may permit a party to invoke the right to to de-index and to remove the personal information of the party from search engines.
Taking a cue from the Supreme Court, the Kerala High Court declared that in family and matrimonial cases, the court registry shall not publish personal information of the parties or shall not allow any form of publication containing the identity of the parties on the website or on any other information system maintained by the Court if the parties to such litigations insist so.
In April this year, the Karnataka High Court ordered not just Indian Kanoon (search engine for legal cases), but also news websites to mask the name of a Bengaluru-based engineer who was accused in a rape and cheating case, that it had later quashed. This also led to the taking down of articles which alleged that he had cheated several women similarly.
The Himachal Pradesh High Court’s 11 July judgment cited earlier noted last week that the woman in this case was over 17 years old on the date of the alleged offence and has now married the accused and has a daughter with him.
The court then went on to assert that “after the accused gets blame-free by a process of law, the respondent cannot be seen to be carrying the sword of his being accused for all his life”. The right to oblivion and the right to be forgotten, it said, has evolved as a facet of the right to informational privacy.
“In the crime, once the accused gets acquitted/honorably discharged by a competent Court of law or this Court, and the order becomes final, the shadow of crime, if permitted to continue and substitute its place for the shadow of dignity on any citizen, it would be a travesty of the concept of life under Article 21,” the court observed.
It then directed the masking of the names of the accused as well as the woman from the database of the trial court in Bilaspur and ordered the Registrar General of the high court to mask their names in the digital records. This, it said, was to avoid hardship and prejudice not just to the couple, but also to their daughter.
‘No legal basis’
Supreme Court advocate B. Sunita Rao called the right to be forgotten “an important right”, especially in matrimonial disputes as well as in Section 138 cases, pertaining to dishonour of cheques.
“Because if you type somebody’s name (online), these tend to show up, if these cases are listed anywhere. In the lower courts, they are not showing these matrimonial cases with names in the causelist, they usually write X vs Y. But the Supreme Court and high courts haven’t followed it yet, and names are there,” Rao told ThePrint.
As to how the right can be applied, she explained that court records are public documents, so people have to make an application with a special request, citing specific reasons for demanding erasure of their information.
“You have to show your grounds for exercising this right,” she asserted, adding that these grounds can include acquittal in a criminal case, or passage of a long period of time since the criminal case, or the disclosure affecting one’s livelihood or future marriage prospects.
However, Sushant Sinha, founder of Indian Kanoon, explained to ThePrint that there is no statutory basis for the right to be forgotten, and despite this, courts are allowing writ petitions against private parties, like his organisation, to enforce the right.
Article 226 allows the high courts to issue ‘writs’ for enforcement of rights. In other words, a writ petition can be filed by any individual for enforcement of their rights. However, writ petitions cannot traditionally be filed against private entities, and only against state entities or authorities discharging a public function.
“Indian Kanoon is not a government organisation, we are not taking any money from the government, so why should writs be issued against us?” Sinha asks.
Indian Kanoon is a popular open-access search engine that was launched in 2008, and has court orders from courts and tribunals across the country.
He expressed his surprise over the right to be forgotten being picked up in India, and said, “People need to know who they are interacting with. When someone calls me, what do I do? I Google first, to check who I am going to be speaking to. I would check trusted sources.
“Last one and half years, I have seen too many such cases, and many bizarre cases.”
Calling these orders “judicial farmans”, Sinha added, “These are without any basis of law, without calling us as parties to hear our side…Is this the rule of law? Orders are issued without any backing of law, to private parties. How are news media organisations government companies?”
Need for a clear judicial approach
At the receiving end of most of these orders to mask the names of the accused or take down judgments are news organisations, legal databases like Indian Kanoon, and search engines like Google.
A petition filed for redacting names of the parties and their personal details from two judgments — one passed by the Supreme Court in 2017 and another passed by the Punjab and Haryana High Court in 2016 — is currently pending in the Supreme Court.
The apex court had, in February, noted that action had been taken to mask the names of the parties in the high court judgment, and the Supreme Court also ordered its registry to mask their names.
In its response, Indian Kanoon asserted that “court records, being public documents, cannot be subject to blanket removal based on individual privacy claims, save for specific legally mandated exceptions.” It also claimed “unfair prejudice” against the platform, alleging violation of Article 14 (equality before law) of the Constitution, since only it has been made a party to the petition, despite several other legal databases also having the same judgment.
In February, the Madras High Court directed Indian Kanoon to take down a 2014 judgment acquitting an accused in a cheating and rape case, citing the right to be forgotten. While the man had been convicted by a trial court in 2011, the conviction was reversed by the Madras High Court in April 2014. He has since remarried and has three children, but found that the high court website still revealed his personal details and identity.
A division bench of the high court has now ordered Indian Kanoon to take down the judgment acquitting him. It also directed the high court registrars to redact his name and other details relating to his identity from the 2014 judgment and ensure that only the redacted judgment is available for publication or for uploading. The court asserted that the full and unredacted version of the judgment shall continue to be part of the court record.
Indian Kanoon has now approached the Supreme Court challenging this judgment, raising substantial questions over the scope and applicability of the right to be forgotten.
The high court verdict, it asserts, adversely affects various fundamental rights of Indians as well as the platform Indian Kanoon, by limiting access to court records, curtailing its database and impeding its operations. It has highlighted the need for a clear judicial approach especially regarding public records and privacy rights, considering the multiplicity of similar cases across the country.
Indian Kanoon’s petition is currently pending in the Supreme Court, and the verdict in the case may bring more clarity on when the right to be forgotten can be invoked.
(Edited by Radifah Kabir)
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