Supreme Court To Settle Law On 'Right To Be Forgotten'; Stays HC Direction To 'IndianKanoon' To Pull Down Judgment

The Supreme Court is set to examine whether the right to be forgotten can be enforced against the judgments by Courts which reveal the identity of the acquitted person.

The bench of CJI DY Chandrachud and Justices JB Pardiwala and Manoj Misra was hearing a challenge by Indian Kanoon, (a legal database website) against the Madras High Court order dated March 3 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.

Advocate Apar Gupta, 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"

Acknowledging the same the CJI remarked the need to consider the issue in detail.

"We will have to settle the law" 

The Court while issuing notice in the petition, has stayed the Madras High Court Order. 

"Issue notice, in the meantime the directions of Madras HC shall remain stayed."  

It may be noted that the right to be forgotten is widely argued to be a part of the right to privacy under Article 21, the latter being held in the landmark case of K.S. Puttaswamy vs. Union of India

Judgements Once Published Become Part Of Public Record: CJI Expresses Concerns Over Complete Pull Down Of Judgements 

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 CJI stressed that such a precedent could lead to requests for removing judgments in other types of cases, such as those involving financial information in arbitration matters. Another aspect pointed out by the CJI was how allowing such an impugned direction may also make a case for those convicted of a crime and subsequently having served the sentence, would also claim to have their identities masked in the judgements. 

"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." 

Present Case Not Fit To Be Justified Under The Right To Be Forgotten: Indian Kanoon Contends

The counsel for the petitioner stated that the website takes its responsibility of masking domestic or sensitive cases seriously even in the absence of any express legal obligation to do so. However, the petitioner explained that the present case does not fall in the category of cases where masking of identities is justified. 

"I removed several judgements from the Google index, my lords I am not even obligated under statutory direction. We take our responsibility seriously, and we do not give wide publicity to the people's domestic problems being aired or coming in the first few results (search results)" 

Answering the question posed by CJI regarding how the cases of family law or divorce matters are handled, the Counsel explained that they have a case removal policy in place. They remove sensitive information from Google search results, especially in cases involving personal disputes, child custody, or matters under the Protection of Children from Sexual Offences (POCSO) Act.

"Same my lords. It is in my case removal policy, I remove it from Google. And if a court before whom a personal dispute or a child custody, POCSO etc and the court has inadvertently mentioned any personal details we still remove it. We do it when there is a statutory obligation or a direction by a Court before whom a proceeding has been pending."

The counsel further clarified that Indian Kanoon removes personal details from its database when there is a statutory obligation or a direction from a court overseeing the proceedings. However, they emphasized that the current case is different from these categories.  

"This case is distinct from these categories and it is emerging with purging irregularities under a right to be forgotten which has no ingredients and is acting as a right to erasure." 

The counsel appearing for the Respondent (who was the original petitioner before the High Court) informed the bench that he had sought for removal of their identities from the judgment available on the High Court website as well as from India Kanoon. He further stated that due to the revelation of his name in the judgement of acquittal, the respondent was denied Australian Citizenship. 

Background

The High Court was hearing a plea by a man challenging a single judge's order rejecting his request to redact his name and other details from a judgment acquitting him in a sexual assault case. The man had submitted that the right to be forgotten and privacy are inherent in Article 21 of the Constitution. He further submitted that uploading judgments containing personal details triggers stereotypical ideas in the minds of readers even after the slur cast in the original judgments are removed by the legal process. 

The bench of Justice Anita Sumanth and Justice R Vijayakumar observed that while the courts were expected to possess data, it was the court's discretion to make such data publicly available and such a decision had to be taken consciously and carefully. the bench also observed that the courts could not be compelled to make any information publicly available under the RTI Act.

The court noted that while rejecting the man's plea, the writ court had noted that there was no legislation in this respect. The bench, however, noted that the decision to redact the name was within the court's discretion and the court must do everything in its power to strive to perfect the system. The bench further observed that the fallibility and vulnerability of the criminal justice system should not stand in the way of the rendition of justice whenever it is called for.

The court added that the open justice system has brought justice and dispensation of justice to the doorstep of citizens. However, the court added that privacy was an inalienable facet of the right to life and dignity, and thus the courts had to strike a balance between the concept of open justice and the privacy of the litigant. The court also noted that institutions committed to serving justice, the courts could not close their eyes to privacy concerns and a litigant's right to leave behind his past.

The court thus directed Ikanoon Software Development Pvt Ltd to take down the copy of the judgment that was available on their website and further directed the Madras High Court registry to redact his name and other details relating to his identity from the judgment and ensure that only the redacted judgment was available for publication and uploading.

Case Details : IKANOON SOFTWARE DEVELOPMENT PVT. LTD. Versus KARTHICK THEODORE AND ORS. SLP(C) No. 15311/2024

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