Right To Be Forgotten Not Absolute, Must Be Balanced With Right To Know : Kerala HC Standing Counsel Tells High Court

The Kerala High Court, on September 15, heard a batch of petitions seeking the removal of identifiable information from judgments or orders published in various online portals and the High Court Website, alleging that it is a violation of the Right to Privacy and Right to be Forgotten.  

Division Bench consisting of Justice A Mohammed Mushtaq and Justice Sophy Thomas observed that when competing interest is involved certainly, the public interest will overtake the individual interest. It observed, 

When Apex Court declared it as a Fundamental Right, right to be protected, then we, an institution, are we not bound to protect it? That is where the competing interest comes in one right of a citizen to publish and the fundamental right of another citizen to be protected. When competing interests are involved, certainly, the public interest will overtake the interest of the other citizen. Publishers like LiveLaw, Bar and Bench and Indian Kanoon are protected under Article 19, but we as an institution are not protected under Article 19.

When the matter was taken up for hearing, the Standing Counsel appearing for the High Court of Kerala (6th respondent), Advocate B G Harindranath, submitted that the right to be forgotten is not absolute it has to be balanced with the competing interest balancing the right to know and the right to be forgotten should be left to the Legislature and not to the Court. 

It was submitted that the judgment of the Karnakata High Court in the case of Vasunathan v. The Registrar General, in which the Court had allowed the prayer of masking the petitioner's name, does not reflect the correct legal position, and the petitioner does not have any right to get her name erased on the premise that she has such a right under the Constitution.

It was further submitted that merely because the person is acquitted it only means that the prosecution did not meet the threshold of beyond a reasonable doubt in a criminal case; he does not get an indefensible right to get his name erased from the Court records as there is no such right available to a person involved in a criminal case who stood a trial to get his name erased from the record. 

Justice Mushtaq orally remarked that as far as criminal cases are concerned, it is committed against society and not just a single individual therefore, everyone has a right to know what happened to the accused. Every public is assumed to participate in the proceedings, and they have every right to know about it. Even if their criticism is not valid, it may be relevant sometimes.

The Counsel then argued at length on the Right to Privacy and on the Right to be left alone, quoting scholarly articles as well as international and national cases in this regard.

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

The Standing Counsel traced the origin of the concept right to privacy to an article published by Samuel Warren and Louis Brandeis in 1890, in which it epitomized the right to privacy as an already existing common law right which embodied protections for everyone's 'inviolate personality'. He submitted that in this article, they described that the common law guarantees to everyone the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others, thereby fixing the limits of the publicity which shall be given to them. This understanding is the essence of the right to privacy. The Counsel cited a number of US Supreme Court decisions to show that the Right to Privacy has its moorings in the Fourth Amendment.

Further, in a written statement filed by the 6th respondent, it was averred that Data privacy, as usually addressed, has a wide scope and includes personal, informational or organizational privacy. While it is required in the larger public interest to protect one's right to privacy, it shall also be maintained that the law is not too sensitive to these concerns; any legislation enforcing the right to privacy shall not recognize it as an absolute right, but as a right with reasonable exceptions, he submitted.

"Everyone has the right to prevent unwanted invasions into his private and family life, his home and correspondence. It reflects both the individual's psychological need to preserve an intrusion-free zone of personality and family and prevent the anguish and trauma when that zone is violated. Privacy also connotes a right to be left alone. It is also important to accentuate the fact that privacy is not lost or conceded just for the reason that the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being."

Furthermore, in Section 8 of the Right to Information Act which begins with a non-obstante clause, there is no obligation on the public authority to give information which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information.

Reference was made to a case in Gujarat High Court, where a petition for restraining public exhibition of a judgment of Petitioner's acquittal, was dismissed. It was held therein that the High Court is a Court of Record and the Gujarat High Court Rules provide that copies of any judgments or proceedings can be accessed. It was further held that the petitioner has been unable to prove the violation of any law to be redressed under Article 226 since his claim does not violate Article 21 of the Constitution. The Gujarat High Court did not recognize such a right as a right within the expression of what is called the 'right to be forgotten'.

The counsel also referred to the Apex Court decision in R. Rajagopal v. State of TN, in which it was held that if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy, he will not be entitled to any protection. It was further held that the right to privacy is subject to the exception that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records, including court records. 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 the press and media, among others. The only exception carved out to this rule is in regard to a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in press or media. This view in regard to public records has been approved by the bench of 9 Judges in K.S. Puttaswamy, the counsel submitted. 

The Counsel submitted that the judgment of the Karnataka High Court in Vasunathan does not reflect the correct legal position as the Supreme Court decision in R. Rajagopal and K.S Puttaswamy has not been averted to in this decision, and the petitioner does not have any right to get her name erased on the premise that she has a such a right under the Constitution. 

Advocate Babu Paul submitted that with regards to the matrimonial matter, there is already an office memorandum issued by the High Court, so there can't be any doubt in that regard. He submitted that any order of the Court is a public document according to Section 74 of the Evidence Act, and there arises a conflict between Section 74 and the Right to Privacy.

One of the Writ Petitions was filed seeking the removal of identifiable information of the Petitioner in the Indian Kanoon Website and also sought the removal of the judgment along with a compensation of Rs. 50 lakhs. 

The Counsel appearing for Indian Kanoon Advocate Santhosh Mathew contended that in the Writ Petition, they've sought for a mandamus directing Indian Kanoon to remove the judgments, which is not maintainable since Indian Kanoon is performing a public duty. It was further contended that reproduction of Court orders cannot form a basis for an action for violation of privacy, as these orders fall under the category of the public document as per Section 74 of the Indian Evidence Act.

Mathew also cited R Rajagopal (supra) to contend that the right to privacy, though implicit in the right to life under Article 21, would not extend to protect an individual from publications based on public records including court records. 

Referring to the decision in the case of Karthick Theodre v. Registrar General, it was also contended that the Right to be forgotten cannot exist in the sphere of the administration of justice, particularly in the context of judgments delivered by the Court, and exceptions to these provisions can be seen in cases of victims of rape, and other sexual offences where the Supreme Court itself has directed that the identity of the victims cannot be disclosed and statutory prohibitions against the disclosure of the identity of the victim and witnesses are also found in the provisions like 428 A IPC, Section 23 POCSO Act etc.

"Unless the case falls within the ambit of the exceptions, the general principle must govern. No judgement of any Court has been cited to show that the prerogative power of the Court under Article 226 extends to alteration of its own records...Court cannot undertake the exercise of issuing directions to recognise a right to be forgotten when no judicially manageable standards exist in the first place and in the absence of statutory backing."

It was contended that by granting the relief sought, the consequence would be curtailing to know and, as far as Indian Kanoon is concerned, their right under 19(1)(g) of the Constitution of India. It was submitted that as a person has a right to be forgotten, another individual has a right to know. When these two are entering into a common relationship, be it as an employer-employee or husband and wife, whatever be it, if that information is available in the public domain, that helps them to make the right informed choice, and that cannot be curtailed by a judicial act. 

The matter has been posted for 22nd September for further hearing. 

Case Title: Vysakh K G v. Union of India And Other Connected Cases