Right to be forgotten: Litigants call to erase the trials and tribulations of the past

The Karnataka High Court recently directed media houses to temporarily block names of two acquitted persons who had invoked the right to be forgotten. Though Indian laws haven't specifically carved out this right, courts in recent times have acknowledged it from the prism of the fundamental right to privacy, owing to the potential of social boycott or harm to reputation not only to litigants, but also their families.

Thus, the need for personal information or details of past life events of persons who they have already undergone punishment or prosecution to remain in the public domain is increasingly being debated before the courts.

In the case before the Karnataka High Court, following arguments of Advocate Gangadhariah AN appearing on behalf of the two “prominent” petitioners, the Court held,

“Interim order as prayed for till next date of hearing. This interim protection has been granted in the light of observations of apex court in KS Puttaswamy v. Union of India…”

Gangadhariah says that such cases only arise against people like celebrities or established individuals who attract the media glare.

“One such person is my client. All the digital coverage by social media platforms like Facebook, Google, are managed by clickbait agencies and other news portals. So majority of them are overseas. Our demands and requests are not conceded by them immediately to remove the versions...Some incident that occurs in 2014-2015 is followed by media trial. By the time the real trial takes place, the entire material is posted on social media,” he says.

His clients faced a criminal trial under various provisions of the Indian Penal Code, besides offences under the Juvenile Justice Act and the Child Labour (Prohibition and Regulation) Act, before being acquitted in 2018.

According to the lawyer, such cases can lead to great hardship in addition to professional, financial and social agony.

“Google, Facebook are all sitting overseas. Indian offices have limited powers. They may not heed also unless any court of law directs them to do it as per law. No matter we have issued notices requesting them to remove the defamatory posts, they have not done so,” he points out.

After notices to big tech companies didn’t bear fruit, Gangadhariah’s clients approached the Karnataka High Court, relying on the Puttaswamy judgment. He argued that the Supreme Court had categorically upheld the right to privacy as being part of the right to personal liberty under Article 21 of the Constitution, and consequently, the right to be forgotten or left alone.

Advocate Johnson Gomez from Kerala, and his client, a dentitst, share a similar sentiment. Tried and acquitted in a rape case in 2019, the petitioner is now fighting for removal of his personal details from online platforms before the Kerala High Court.

Like Gangadhariah, Gomez too cited the Puttaswamy judgment in the High Court and said that the right to privacy includes right to be forgotten.

Gomez and his client first approached the legal search engine Indiankanoon.com.

“They said there is a judgment of the Supreme Court with respect to an autobiography of a convict and we won’t remove,” says Gomez.

Indiankanoon, having a database of orders and judgments from various courts in India, on its website, maintains,

“We will not remove or modify any public documents without an order of the court competent to do so. Remember, there are many, many copies of these court decisions in existence, and Indian Kanoon has just one of those many copies.”

Does Puttaswamy safeguard the right to be forgotten?

Whether it was Gomez who filed the petition in 2020 or Gangadhariah whose client was granted the relief more recently, a number of petitioners invoked this nine-judge Constitution Bench judgment to claim the right to be forgotten.

The landmark judgment authored by Justice DY Chandrachud on behalf of himself and three other judges on the Bench, recognised privacy as a constitutionally protected right, emerging primarily from the guarantee of life and personal liberty in Article 21 of the Constitution.

Therefore, when it comes to the right to be forgotten, lawyers essentially contend that the right to privacy also encompasses the right to be forgotten for those who have been incarcerated or have faced trial and now want to move on.

The Puttaswamy judgement also mentions the European Union Regulation of 2016 that recognised the right to be forgotten.

Justice Sanjay Kishan Kaul in the concurring judgment underscored the right to be forgotten and opined,

“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.”

It was, however, clarified that such a right cannot be exercised in various circumstances including where the information was necessary, compliance with legal obligations was required, a task was carried out in public interest, on the grounds of public interest in the area of public health and archiving purposes in public interest.

“Such justifications would be valid in all cases of breach of privacy, including breaches of data privacy,” it added.

Justice N Anand Venkatesh of the Madras High Court put forth a different interpretation of Justice Kaul’s opinion while dealing with a case last year.

When faced with a similar question - whether a person acquitted of all charges should have the right to get his name removed from court orders - the Madras High Court referred to both the Puttaswamy judgment and an earlier decision of the Supreme Court in R Rajagopal v. State of Tamil Nadu.

The Supreme Court in Rajagopal had opined that once a case becomes a matter of public record, the right of privacy no longer subsists and it becomes a legitimate subject for comment by the press and media, among others.

This finding, in the view of the Madras High Court, had only been affirmed by the Supreme Court Bench in Puttaswamy.

Interestingly, the Madras High Court had in the same case initially opined that an accused who was acquitted of all charges was entitled to have his name redacted from court orders.

But it subsequently held that a “writ cannot lie against a judgment or order passed by it” for it would “tantamount to the High Court issuing writs against itself”, as the removal of names was sought from the same court’s order.

In Gomez's opinion, the situation requires proper legislation whereby the information should necessarily be regulated.

“So, I believe a statue is necessary for regulation. All stakeholders should be kept in their own premises and not permitted to step into the arena of others. When a person is acquitted and there are circumstances. Acquittal can be for various reasons — flaw in investigation, lack of evidence, parties turning hostile, etc,” he stresses.

He also raises a contrarian view, questioning the removal of details of acquittals, or for that matter, convictions from online platforms. Though for Gomez, the foremost question is why personal information is required in the first place.

“You may require a judgement for the sake of reference in a future case and a court having judgments of precedential value. Is it really necessary to have every name, address and everything of a person in the public domain? Is it not sufficient that the petitioner’s and the respondent’s cases are narrated? Is it not sufficient to be released by court? Why should the courts release data having names and details of parties? Why can’t they restrict it? ”asks Gomez.

Although he doesn't oppose dissemination of information for the purposes of case management, court records or research, he disputes the display of a person's identifiable aspects.

The problem, he says, is not limited to persons fighting the cases.

“Problems are faced by non-litigants also. The concept of right to be forgotten is to allow a person to lead a free life after some time. When are you going to leave him? What is the mechanism to leave him, to lead a normal life? You don’t have it. That’s the problem,” he maintains.

Reformation or retribution?

Justice Pratibha M Singh of the Delhi High Court in a similar case had underlined the "irreparable prejudice" that might have been caused to a litigant's social life and career prospects.

The plea was recently filed through Advocate Rajesh Rai, who was representing a man deported to India after undergoing sentence by a court in Leicester, UK in a fraud and blackmail case. The man was convicted and sentenced to nine years of imprisonment and spent over seven years in prison before being released on good conduct. He was thereafter deported to India.

Rai emphasises that in the absence of a law in India recognising the right of a person to be forgotten after undergoing a sentence, the fundamental right to privacy was broad enough to cover the right.

He argues his client has already had his share of retributive justice and all he now seeks is rehabilitation in order to lead a new life.

"But because of the print media, and whatever is mentioned online, if you put his name, everything is available, and that may be 10 or 15 years old. And you will never find a responsible article that says he was convicted and released on good behaviour, etc. It is only that he is a conman and he has gone through this and that,” he points out.

That information of people’s past life events affect the lives of their family members is a common argument lawyers raise. In the case of Rai’s client, the information is an impediment for his daughters’ marriage prospects.

“The daughters are to be married. The moment you check his background, which is not exactly the right information - I am not saying it false information but also not exactly the right information - this comes up.”

According to him, no one has control once information is disseminated on the internet, be it Google or any of the social media platforms.

“What is the responsibility of the State? If the State has the right to punish, it also has the duty to see a person gets reformed and not put him in a dark hole after he is out of jail. My case is more difficult and we try to make out that the other side of conversation has a history and everybody has the right to know,” asserts Rai.

Given the proliferation of information on social media and the internet, he suggests controlling of information, which also needs to be precise, true, and suited to what is actually required or else litigants, in his view, will reach a “point of return”.

Delhi-based criminal lawyer Manoj Taneja says that once a person gets acquitted or discharged in a criminal case, it has no meaning to the world except perhaps to only near and dear ones who believe in the person's innocence.

“No doubt, the right to be forgotten is very important. However, the system and the rules and regulations of the authorities are such that when a person faces any criminal case, the police department concerned has a record of their details and the crime committed. So it is vital for the police department concerned to first update their record regarding clean chit given to the person by way of acquittal or discharge,” suggests Taneja.

He feels that in an age of massive internet activity, it is challenging for search engines that are the point of origin of the dissemination of the information in question to remove or delete it, as it gets amplified quickly through multiple platforms.

‘If my child searches on the net, what will I say?’

Gomez’s client was acquitted in a rape case in 2019 after facing a trial for over five years. He got bail in the case in 2014, but says the order had his personal details, including the name of his father.

“You can see my father’s name along with that. If the Indian judiciary needs to put my name, let them put. I am least bothered. Why my father’s name? What has he got to do with it?” he asks.

The presence of his personal information online despite his exoneration in the case two years ago, has impacted the dentist’s life on professional and personal fronts.

Professionally, the dentist suffered on account of not being able to apply for government services.

"My name reflects (background information). I was called to the State Public Service Commission, but couldn’t register. Now I am 39. I can’t even apply right now. The case is finished, but the seat option that was available at that time...I am tarnished. I am still in the private sector,” he shares.

While relatives deserted his father, the family also stopped getting invitations for social events such as weddings. His marriage broke during the course of his trial and he married again to build a future.

“What if my child searches on the net? They start as early as in class 3 to go on the internet. What if he asks what is this and sees his grandfather’s name is also there. What should I reply? And (this is) for the generations to come.”

He illustrates his troubles with a situation where a female patient wants to come and see him, but sees his case details online.

“Will you bring your wife to me? Or your daughter to me? What will you think? Or else you got some other clinic and say there’s this doctor I was thinking of going to. They’ll say okay you can go but don’t take your wife. He is such a person. And what will you and your wife think? When other people ask, you’ll also say that doctor is not so good. There are some issues. And this word is getting published all over,” he says.

Fortunately for him, a dedicated group of patients still come to see him.

Petitioning the Kerala High Court was the result of his mother telling him to get the personal details removed before the family name is tarnished any more.

“That’s why I moved court. I hope at least my mother would be happy. I am least bothered. But whenever I see my parents' faces, especially my father who got bedridden after the whole scenario, whenever I see him, I feel very bad as it is because of me. I had to suffer, I am suffering, but why my parents? I just asked to remove my parents name. Anyways, I am tarnished,” he ends.