[BREAKING] No 'Right to be forgotten' when it comes to court judgments; accused on acquittal cannot have name redacted: Madras High Court

The Madras High Court on Tuesday deviated from its earlier prima facie view that an accused has a right to have his name redacted from court orders and judgments upon his acquittal and ultimately concluded today that the right to be forgotten cannot exist when it comes to judgments of the Court. .The right to be forgotten refers to the right to have one's personal details removed from the public domain, including the internet, once such information is no longer relevant or required to be publicly available..As stated in the order pronounced by Justice N Anand Venkatesh, "Right to be forgotten cannot exist in the sphere of administration of justice particularly in the context of judgments delivered by courts.".Referring to his earlier conflicting view wherein it had come to a prima facie conclusion that accused persons are entitled to have their names redacted from judgments or orders, especially those in the public domain and accessible through search engines, Justice Venkatesh explained:."Initially, this Court was inclined towards right to privacy, right of reputation and right to live with dignity being read to have a wide scope. The Court felt that it had to come to the rescue until the legislature ultimately enacts the Data Protection Act. However, on a deeper review of the issue, this Court has taken cognisance of the fact that the same is not as simple and straight as it sounded.".[BREAKING] Accused entitled to have his name redacted from court orders once acquitted: Madras High Court on Right to be Forgotten.The Court further opined that there may be unintended ramifications if such a generalised order is passed and that there were finer aspects that have to be considered, failing which the matter may open flood gates. .Therefore, the Court called for members of the Bar to give their views on the issue, following which the Judge has now concluded that the right to be forgotten cannot be generally extended with respect to court judgments and orders..Among those who made submissions on the issue were advocates Gandhi, VS Kanthi, G Mariappan, Gandhi, Sanjay Pinto, R Thirumoorthy, J Anandhavalli, B Saravanan, D Selvam, K Samidurai, Abudu Kumar, G Balasubramanian, Duraipandian, Arun Anbumani, .Sharath Chandran, KK Ramakrishnan, KPS Palanivel Rajan and R Suresh Kumar..The reasons given by the Court include:.1. There is no use in redacting names in the final judgment or final order when there are prior publications tarnishing the name of the accusedThe Court noted Amicus Curiae, Arun Anbumani's submission that while the Court's focus, in this case, has been drawn to the final judgment or order of acquittal, the "damage to reputation or dignity" of any accused may begin from the day a complaint is registered or when the accused is remanded to custody. At every stage, there is a publication. In such a backdrop, it may be the order or judgment of acquittal that saves the honour of a person whose name has already been tarnished due to earlier publications which are readily available on search engines, it was pointed out.As such, it was further noted that India does not have a system as available in the United States of America, where through a Court order, there can be complete destruction or expungement of the entire records of an accused person who is acquitted.As such, the Court observed, "If the system is looking for identifying an effective right for a person acquitted in a criminal proceeding, it must be a consummate relief and there is no use in just erasing the name in a final judgment or order. In fact, it may prove to be counterproductive for a person to get their name erased from a judgment or order to prove their innocence, where there are other materials available in public domain, which pertains to damning their name when the criminal proceedings actually commenced.".2. Principle of Open JusticeThe Court noted that the issue of redacting names from judgments would also impact one of the "Central and universally acclaimed tenets of administration of justice", that is, the principle of open justice.In India, the principle of open justice has been identified as a central tenet of the rule of law, the Court said, while referring earlier case-laws including the Swapnil Tripathi ruling of the Supreme Court."It can, therefore, be taken as an established position of law that public access to judgments of Courts is an integral precept of the concept of open justice, promoting the rule of law," the Court said.The Court also acknowledged there are some exceptions. For instance, under the Juvenile Justice [Care and Protection of Children] Act, 2015 and Rules, there are legal provisions for the complete destruction of criminal case records so that a child in conflict with law can start life afresh later on. Further, in cases of rape and other sexual offences, the Supreme Court itself has directed that the identity of victims cannot be disclosed (Nipun Saxena v Union of India). Statutory prohibitions against the disclosure of the identity of the victim and witnesses are also found in provisions like Section 228-A, IPC, Section 327(3) of the CrPC, Section 23 of the POCSO Act, etc. Further, a Court may issue "postponement orders", deferring publication for a short period during trial if there is a real and substantial risk that disclosure of identity may imperil fair trial (Sahara India Real Estate Corpn. Ltd. v. SEBI).Unless a case falls within the ambit of the exceptions, the general principle must govern, the Court added..3. While there is no dispute that there is a fundamental right to privacy, there is also an exception when it comes to public recordsIn this regard, the Court referred to the case of R. Rajagopal v State of Tamil Nadu, wherein the Supreme Court ruled, "... any publication concerning the aforesaid aspects (private matters) 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 press and media among others."Given that this ruling was affirmed in the KS Puttaswamy case (where right to privacy was held to be a fundamental right under Article 21 of the Constitution of India), Justice Venkatesh proceeded to rule:"It must, therefore, follow that judgments of courts being public records, the right to privacy cannot subsist ... It would, therefore, follow that the 'right to be forgotten' cannot exist in the sphere of administration of justice particularly in the context of judgments delivered by Courts.".4. High Court cannot issue writs against itselfAnother hurdle faced by the petitioner in this case was that his prayer was effectively for a writ of mandamus to be issued by the Court against a judgment of a coordinate Bench so that the description of the petitioner may be altered in the cause-title and body of the judgment.After emphasising that any judicial order of the High Court is passed as "one institution", irrespective of the nature of jurisdiction and the strength of the Bench, Justice Venkatesh opined:"... since the High Court is one indivisible institution, a writ cannot lie against a judgment or order passed by it for that would tantamount to the High Court issuing writs against itself.".5. Since the High Court is a Court of Record under Article 215 of the Constitution, it is entitled to preserve original records in perpetuity."... the sanctity of an original record cannot be altered or otherwise dealt with except in a manner prescribed by law. No judgment of any Court has been cited to show that the prerogative power of this Court under Article 226 extends to direct alteration of its own records," the Court said..6. Without statutory backing, Court cannot issue guidelines for redaction of names. In this regard, the Court observed that there is no law in India akin to the General Data Protection Regulation (GDPR) for the European Union, wherein a "right to erasure" is provided for."In the absence of any statutory backing this Court cannot undertake the exercise of issuing directions when no judicially manageable standards exist in the first place", the Court said.Justice Venkatesh added that some policy should be framed on the issue, lest confusion would ensue."There must be a proper policy formulated in this regard by means of specific rules. In other words, some basic criteria or parameters must be fixed, failing which, such an exercise will lead to utter confusion. This Court must take judicial notice of the fact that the criminal justice system that is prevalent in this country is far from satisfactory," the order stated.In this regard, the High Court also lamented that since the Indian criminal justce system is lacking on several key areas, it is not ready to venture into the aspect of redacting an accused person's name from the records. It would be better to wait for the Data Protection Act to be enacted, the Court said."In various cases involving heinous crimes, this Court helplessly passes orders and judgments of acquittal due to slipshod investigation, dishonest witnesses and lack of an effective witness protection system. This Court honestly feels that our criminal justice system is yet to reach such standards where courts can venture to pass orders for redaction of name of an accused person on certain objective criteria prescribed by rules or regulations. It will be more appropriate to await the enactment of the Data Protection Act and Rules thereunder, which may provide an objective criterion while dealing with the plea of redaction of names of accused persons who are acquitted from criminal proceedings. If such uniform standards are not followed across the country, the constitutional courts will be riding an unruly horse which will prove to be counterproductive to the existing system," the order said..As such, the Court proceeded to dismiss the petition before it and declined to accede to the prayer for redacting the petitioner's name from case records wherein he was referred to as an accused, despite his acquittal. .However, in the course of the judgement, the Court also had this to say on the effect of acquittal:"There is no doubt with regard to the fact that the moment Judge records an order of acquittal, the identity of a person as an accused is completely wiped out. This effect takes place due to the operation of law.".The Court also acknowledged that the concerns raised by the petitioner have assumed significance in the present, technology-driven era"The peculiarity of seeking redaction of the name of an accused persons who have been acquitted, has essentially gained significance due to the development of science and technology that has virtually brought everything under the sky to the fingertips of any person who may have access to the internet. The search engines provide information about any person and whatever information is available in the “Cloud” can be accessed by anyone. Therefore, since the orders and judgments are easily available on the public domain and can be conveniently accessed by the touch of a button, it is causing a serious impact on the reputation and privacy of a person. A person despite getting acquitted after facing criminal trial has their name reflected in the order or judgment as an accused which identity they want this world to forget," the Court observed. .Last year, the Kerala High Court had admitted a plea seeking erasure of the petitioner’s personal details from a Google search result.The Orissa High Court has also lamented the lack of a mechanism to permanently delete information from the internet in order to safeguard the right to be forgotten. The same was observed in a bail application moved by a person who videographed intimate photographs of his sexual assault on a woman and uploaded them on Facebook..[Read Judgment]