Right to be Forgotten: Evolving Right in Indian Democracy
The concept of right to be forgotten which is also known as right to delist or right to erasure is on the verge of evolution in Indian Constitution. This right is presumed as a part of right to privacy and deliberation is taking place in legislature about creation of such right because people are being cautious about their data protection and personal information which is being shared in public platform.
The etymological background of such right can be traced back in French Jurisprudence where this right used to be known as right to Oblivion, and this right was utilized by the offenders, who had served their sentence, to object the publication of their conviction or about the wrong committed by them in order to protect reputation among the society members.
According to this right, any person can ask to remove his or her personal information permanently in order to protect his or her right to privacy from search engines like Google, Yahoo or Bing. The commencement of such right took place in European Union and Argentina and it has been in practice since 2006 and this right consists of lawful removal of personal information from online platforms if such request is made by someone and the reason behind evolution of such right was that a person should not be further victimized in future for an action executed in the past.
The inception of right to be forgotten in India can be found in the judgment delivered by Karnataka High Court and later on even the Kerala High Court recognized this right. In order to have a categorical understanding of right to be forgotten, we need to go through the journey of the right in order to have a clear understanding of right to be forgotten in the Indian context.
Indian Journey of Right to be Forgotten
The journey of right to be forgotten initiated from the landmark decision delivered by Karnataka High Court in the case of Sri Vasunathan v. Registrar General1, wherein the father of a girl was asking for the removal of his daughter’s name from the copy of the order and he was requesting for an instruction from the High Court to give direction to search engines about not mentioning his daughter’s name in that order. The petitioner was contending about infringement of his right to privacy because personal information about his daughter on public platform could jeopardize her reputation in the society due to her indulgence in past criminal cases.
The Karnataka High Court upheld the women’s right to be forgotten and Justice Bypareddy stated , “This is in line with the trend in western countries of the ‘right to be forgotten’ in sensitive cases involving women in general and highly sensitive cases involving rape or affecting the modesty and reputation of the person concerned.”
The Kerala High Court upheld the decision in favor of the right to be forgotten. In this case writ petition was filed for the violation of right to privacy and petitioner was asking for the removal of personal information from the search engines in order to protect their identity and failure of Indian Kanoon in appearance before the court and seriousness of the issue forced the judges to pass the judgment in favor of right to be forgotten and court ordered Indian Kanoon to remove the available personal information of the petitioner.
The Gujarat High Court delivered an entirely different judgment in the context of right to be forgotten and unequivocally denied about the existence of such right. In the case of Dharmaraj Bhanushankar Dev. State of Gujarat & Ors.2, the petitioner claimed against the publication of a non-reportable judgment by Indian Kanoon which was being shown by Google in its search results, and petitioner claimed for the violation of right to privacy under article 21 of the constitution. The court observed that a mere publication of a non-reportable judgment on search engines will not violate the right to privacy since there is no legal basis to claim for the enforcement of such right.
In the case of Laksh Vir Singh Yadav v. Union of India, the petitioner asked for the creation of the right to be forgotten and his plea was to remove publicly reported court judgments from online platforms. His contention was to remove a criminal case involving his wife and mother by indicating that such information is affecting his employment opportunities and is affecting his right to privacy. This petition is still pending before the Delhi High Court.3
We all are aware of the fact that the right to be forgotten is not enumerated anywhere neither in the constitution nor in any statute and the most important point should be discussed while debating on creation of such right, that right to be forgotten should be in consonance with right to freedom of speech and expression because removing information from public platform might hamper the right to information and expression. Therefore, giving equal importance to both the rights will be applauded and accepted without having any confusion about it.4
The inference that can be drawn about right to be forgotten from the abovementioned discussion is that the right to be forgotten is a newly developing concept which has to go through plenty of discussions and procedures for establishment of this right by keeping all other rights in equal importance. The decision rendered by Karnataka and Kerala High Court in favor of right to be forgotten has initiated a process of discussion and creation of right to be forgotten and numerous petitions are pending before Delhi High Court and many other points regarding privacy law are also being pondered on.
We all are aware of the fact that we don’t have privacy law as such, which talk about such right and it is assumed that right to be forgotten is a part of right to privacy but it is not mentioned anywhere as of now. Therefore, before such right is created, balance should be maintained between right to be forgotten and right to freedom of speech and expression.
By Shubham Mishra, VIT School of Law, Chennai