The fine line that separates judicial transparency and the right to be forgotten

The Delhi high court recently granted relief to a petitioner seeking to exercise his “right to be forgotten”
Representational image. (Getty Images/iStockphoto) PREMIUM
Representational image. (Getty Images/iStockphoto)
Updated on Jun 24, 2021 01:37 PM IST
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ByApoorva and Jigar Parmar

The Delhi high court recently granted relief to a petitioner seeking to exercise his “right to be forgotten”. The petitioner, who was earlier acquitted in a narcotics case, had come before the high court praying for the removal of the judgment of his acquittal from online platforms such as Google and Indian Kanoon.

The court passed an interim order granting the relief. Justice Prathiba M Singh, while passing the order, recognised that the case raised an important question of whether a court order can be removed from online platforms to protect an individual’s right to privacy and the need to balance it with the right to information of the public and maintenance of transparency in judicial records.

This is not the first case of this kind in India and it will not be the last. With deeper integration of technology and the digitisation of data, the “practical obscurity” that was associated with court decisions is diminishing, and a simple Google search can yield a plethora of information about an individual, including judgments that their names figure in. Cases like these involve the determination of a crucial issue: Can the right to be forgotten (RTBF) be granted in case of judicial decisions?

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The right to be forgotten

RTBF is a right to have one’s personal information removed from publicly available sources on certain grounds. While it has its roots in the French right of oblivion which allows for individuals who have been convicted of a crime to prevent the publication of facts about the crime, RTBF gained currency after the 2014 decision of the Court of Justice of the European Union (“CJEU”) in the Google Spain case.

In this case, the CJEU ruled in favour of a Spanish national who had requested Google to remove two links to newspaper articles about him. It held that personal information found to be inadequate, irrelevant, or excessive in relation to the purposes of the processing should be erased, even if it was published lawfully. RTBF went on to be incorporated in Article 17 of the European Union’s General Data Protection Regulation which came into effect in 2018.

RTBF in India

In India, RTBF has not attained legislative sanction yet. However, in the Puttaswamy judgment, which held that the right to privacy is a fundamental right, Justice Sanjay Kishan Kaul touches upon RTBF in cases where such information has become irrelevant and serves no legitimate interest. That case, however, did not discuss the specific question of whether RTBF can be granted in the case of judgments.

So far, the Supreme Court has not dealt with a case directly on the RTBF issue. Different high courts have adjudicated upon such requests. The Gujarat high court refused the application by an accused in 2014 while the high courts of Karnataka (2017) and Orissa (2020) have allowed masking the name of victims in criminal proceedings, recognising their right to privacy. However, the inconsistent approaches adopted by high courts in dealing with RTBF can be illustrated by two recent judgments along with the Delhi high court’s interim order.

In January, a division bench of the Bombay high court refused an applicant’s prayer to treat an order recording consent terms in a petition for quashing an FIR as confidential or even block the name of the applicant from the order. The rationale adopted by the Bombay high court was that a request for “blocking the name made after a long gap of four years, cannot be accepted”. It also pointed out that no such request was made when the order was passed and by virtue of the lapse in time, it cannot be agitated that the presence of the order on a Google search will cause prejudice to the applicant.

In March, the Kerala high court was approached by an applicant seeking the un-indexing of links of an order passed by the court directing the local registrar to accept her application for marriage under the Special Marriage Act, 1954. Since the marriage fell through, the presence of the order online was causing prejudice to her marriage prospects as it appeared on entering her name as a keyword on Google. Recognising the important question of law involved in the case, the court has now referred the case to a division bench. As interim relief, the court has directed the registry to mask the name and address of the petitioner in the cause title of this order.

Of judicial decisions and RTBF

It is important to understand that the implications of granting RTBF in the case of judicial decisions are very different from granting RTBF for other content on the internet. This can be seen in the approach adopted in the Personal Data Protection Bill, 2019. While Clause 20 of the bill includes a right to be forgotten, Clause 36 makes it inapplicable to the processing of personal data by any court or tribunal in India that is necessary for the exercise of any judicial function. The possible explanation for carving out this exception is the need to preserve the independence of the judiciary and maintain transparency.

Judgments have always been treated as public records and fall within the definition of a public document according to Section 74 of the Indian Evidence Act, 1872. The principle of “open courts” is crucial to the functioning of the Indian judicial system. Openness does not only refer to access to courts and public hearings, but also includes access to court orders and judgments. Open courts promote transparency and help make the judiciary more accountable. Access to judgments allows the public to critically analyse the functioning of the courts. It is for these reasons that a report by Vidhi Centre for Legal Policy on Open Courts in the Digital Age suggested that RTBF cannot be extended to official public records, especially judicial records as that would undermine public faith in the judicial system in the long run.

Balancing the right to know with the right to privacy

While it is obvious that information on adverse judgments against an individual or an entity might be harmful to their reputation, it is critical that the courts delicately balance society’s right to know with the individual’s right to privacy. The lack of clarity on the grounds on which RTBF can be granted with respect to judgments has turned getting relief from the courts into a lottery. While the Delhi high court has granted interim relief on the ground of the “irreparable prejudice” caused to the applicant, the Bombay high court has rejected such a ground citing lapse of time and lack of promptness on the part of the applicant. The Kerala high court, on the other hand, has noted the public nature of court records but granted an interim order since the matter involved was not of public interest.

The diverse approaches adopted by the high courts point to the need for a uniform test to determine requests for delinking court orders or masking names of parties. Though a straightjacket test may be undesirable, there is a need for clear directives on how the RTBF can be applied in specific situations. The Supreme Court is best placed to come up with a policy on the implementation of RTBF by courts.

Such a policy needs to balance the competing interests of the public’s right to know, the need for transparency in judicial records, and the individual’s right to privacy. Any such guidelines will have to indicate the time frame within which to approach the court and lay down the factual parameters for which RTBF might be available. Striking the right balance will be key to the development of RTBF jurisprudence in India. At a time when the judiciary is entering Phase III of its ambitious eCourts project, rights such as RTBF will have to be coded into any technology solution that is developed for judicial data storage and management.

Apoorva and Jigar Parmar are Research Fellows at Vidhi Centre for Legal Policy

The views expressed are personal

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Thursday, December 09, 2021