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Introduction
Finally, in the Indian technical environment, information has become increasingly available, permanent and less localized than has ever been the case previously. This is mainly because of Internet search engines, online legal repositories and news sites. As a result, nobody will outlive the sins of their past by virtue of the fact that everything is searchable, permanent, and public. Previously, a long-gone misdeamenor or a decades-old interpersonal feud that was buried with time and forgotten by the society could still be dug out with just a few keystrokes. Now, with the ubiquity of search engines and the instantaneous availability of the Internet, there is hardly any information that cannot be found within minutes. This perpetual accessibility of all things pertaining to the personal history of every individual is potentially damaging because an average person’s past can overshadow his or her present and future endeavors.
The recent introduction of the ‘Right to be Forgotten’ to the Indian law, tries to offer a remedy in such cases, by giving the citizens the right to demand the deletion of such data from online indexes. Rooted in the right to privacy, it essentially gives the individuals an ability to manage and control the narrative about their lives. However, as elaborated in detail in the following text, the RTBF is exceptionally difficult to enforce because it brings together in one legal clash the individual’s constitutional rights to freedom of speech and privacy of the individual, as well as the public’s collective right to obtain easily verifiable facts. This article will detail the emergence of the Right to be Forgotten and the legal procedures that are associated with it.
Constitutional Underpinnings: The Article 21
The Right to be Forgotten is not conferred by the Constitution of India, 1950, but instead has been meticulously evolved by the judiciary through a broad reading of Article 21, which says that ‘no person shall be deprived of his life or liberty except according to procedure established by law’. It was through the unanimous judgment delivered by a nine-judge bench in the landmark case of K.S Puttaswamy v. Union of India that the Right to Privacy was declared as an intrinsic part of the ‘Right to Life and Liberty’ enshrined under Article 21. It may be pertinent to note that in the same judgment, the Apex Court took note of the challenges posed to the right to privacy by the ubiquitous and pervasive use of the internet. The issue was that in the digital era, an individual’s data could be stored electronically and constitute what the Court described as a “data double”, which could contain specific information about a person, to which they might wish to put an end, and which can only be deleted by the data owner. The presiding judge, Justice Sanjay Kishan Kaul, while writing the concurring opinion held that the Right to be Forgotten as one of the privacy rights in which, if the data about a subject is used for some specific purpose for the attainment and achievement of which the data is no longer required, which the complainant wanted to bring to the notice of the court so that such data can be deleted so as to prevent the damage or embarrassment which it might cause to the other party. In addition to this, the said judge has also held that if it has an adverse effect on the personal growth of a human being, then it must be deleted by the person who uses it. Therefore, it may be concluded that the very foundation of the Right to be Forgotten in India is the Right to Privacy and dignity of the human person as enshrined in the Indian Constitution.
Statutory Manifestation: The Digital Personal Data Protection (DPDP) Act, 2023
India’s long-standing lacuna of a focused legislation for data privacy, which was addressed by the vague provisions of the IT Act, 2000, finally witnessed a concrete initiative in the form of the Digital Personal Data Protection (DPDP) Act, 2023, which was primarily aimed at providing statutory legitimacy to data processing activities of contemporary data analytics firms and search engines. The DPDP Act, 2023 thus provides a set of regulatory provisions which recognize the Right to be Forgotten as one of the key principles of data privacy, and, to an extent, offers a statutory procedure for data erasure.
The Right to be Forgotten essentially means an individual’s right to seek erasure of his personal data from the possession of a data controller. The DPDP Act, 2023 provides for the Right to be Forgotten, also known as the ‘Right to Correction, Completion and Erasure of Personal Data’, as Section 12 of the statute. As per the provision in the Section, the Right to be Forgotten becomes operative on receipt of an intimation by an individual data-principal for the erasure of his personal data by the specified data fiduciary outside the ambit of ‘processing of the data’ for the ‘provision of the service’. Further, erasure can be claimed by the Data Principal if they withdraw their consent for such processing of the data by the Data Fiduciary. It is pertinent to note that the DPDP Act, 2023 does not permit any unfettered right to erasure of personal data.
Unlike the GDPR, which gives a direct and unconditional right to the data subject to obtain the delisting or de-referencing of hyperlinks or references to them from online search engines, the DPDP Act, 2023, by virtue of the Section 12, will be applicable to all the Data Fiduciaries and require them to erase the personal data of the Data Principal unless such processing is ‘necessary for the performance of a contract or for processing of the data’ for a ‘lawful data processing activity’.
Judicial Trajectory: Mapping Landmark Indian Precedents
Since the practice is new, the evolution of the Right to Be Forgotten has predominantly occurred through the judiciary. It has become one of the most controversial issues as thousands of complaints from the affected parties requesting to delete some damaging information from the Internet have been submitted to the Courts. This usually happens when people’s names appear on databases with the list of convicted criminals (Jorawer Singh Mundy v. Union of India, 2021). They tend to be permanently linked to the crime for which they were arrested, although they might have been acquitted to subsequent charges. Indeed, in the case of Jorawer Singh Mundy v. Union of India of 2021, the Delhi High Court ordered Google India and other websites to remove the judgment of the man’s arrest for violating the Narcotic Drugs and Psychotropic Substances Act of 1985. According to the Court, the search results that appear right away when the name of Mundy’s future employer is found on search engines impede the man’s work. The Court opined that the citizen’s privacy and right to reputation had been adversely affected by the violation of his right to silence as an acquitted person. It ordered the search engines to de-index the information to remove the judgment about the arrest and criminal trial. The right to be forgotten, in this case, helped the individual to reclaim his right to live a dignified life without the past criminal proceedings overshadowing his future career.
Right to be forgotten and name masking have also been addressed in the case of Sri Vasunathan v. The Registrar General (2017). In this instance, the Karnataka High Court took notice of a petition concerning the masking of the name of the petitioner’s daughter from the judgment of one of the High Courts. The daughter had got embroiled in a family feud and filed a matrimonial dispute petition. The Court asked the registry to keep the woman’s name from appearing on the search engines and the law reports as the case dealt with the issue of social privacy. The Court felt that the petitioner’s daughter’s reputation and privacy rights would be injured by his name appearing on the search engines and law reports as a matter of marital discord, which was strictly prohibited in the Indian society. Notably, the Kerala High Court also issued similar directions in a few cases regarding the redaction of the names of the parties involved in matrimonial disputes and child custody matters. It held that the names should be masked in the public access versions of the judgments to protect the privacy and dignity of the individuals.
Judiciary’s take on the right to be forgotten has been contradictory as courts have directed search engines to de-index information about the individuals; however, it has ruled that a right to be forgotten does not outweigh other rights. In Custom v. Gurnam Singh (2023), Delhi High Court took cognizance of the fact that the right to be forgotten is not an absolute right. As such, the petitioner’s request for removal of the judgment of the court on the crime with which he was charged was denied by the court. The Court held that the information sought to be deleted concerned a serious offense, and thus the application to delete or hide the judgment did not meet the requirements of Section 34(b)(ii) of the Specific Relief Act, 1877. On the other hand, the Supreme Court has been working towards formulating policies about the right to be forgotten to balance individual rights against the public’s right to know. It has mandated digitization guidelines to help hide the names of sexual offense victims and those involved in matrimonial conflicts to strike a balance between the right to privacy and the right to justice.
The Constitutional Paradox: Privacy Versus Freedom of Speech and Open Justice
The main contradiction on the way to the implementation of the Right to be Forgotten (RTBF) in India is the violation of the other part of the Constitution by this RTBF. The analysis of the cited Article 19(1)(a) and its connection to the RTBF will show that the Petitioners’ RTBF is not the one India needs because a privacy right cannot override a freedom of speech or a freedom of the press as guaranteed by the Constitution. In other words, if someone invokes the RTBF, they become the controller of another person and their data. This means that such a subject tries to engage in censorship by making them forget something. The Petitioners’ RTBF will result in manipulation of the facts and hiding them from the people.
India’s judiciary practice has shown that the RTBF is incompatible with the concept of “open justice.” Consequently, the court records and judgments are open to the public; the whole system is built in a way to welcome openness and transparency, which builds trust between the people and the judiciary system. The free and convenient accessibility of research sources is critically important for law researchers, lawyers, judges, and the general public in terms of understanding the law, its structure, and who executes it. As it was mentioned in the excerpt, such a resource’s deletion on any particular issue will result in a smaller amount of research materials for these people, which, according to the Indian judiciary, is not possible because it does not support the Petitioners’ RTBF. To end, a balancing test must be done before removing information from a publicly available database taking into account the privacy of the data subject, the public’s interest in the delisted data, and a possible legal or justice-related problem.
Conclusion and implementation strategy
Emergence of the Right to be Forgotten is a step towards a human-centric digital ecosystem. The fact that it has acquired the status of the fundamental right based on the Right to Privacy (Article 21) and recognized in the statute (Section 12, DPDP Act, 2023) highlights India’s resolve to safeguard the rights of the younger generations in the digital domain. Yet, at the same time, India needs to formulate effective implementation guidelines to prevent its abuse to delete unlawful acts and protect against censorship. A preferable alternative to delisting information from the search results, including those databases which cherish historical value, would be de-indexing. It will help both researchers and those with legitimate interest to find the desired information, while ordinary users will not see it in their search results. The Data Protection Board of India, as the regulator of the DPDP Act, needs to formulate standard operating procedures for implementing the Right to be Forgotten in India. In such a manner, India will be able to reconcile the privacy and public interest in a digital age.
