The Right to Be Forgotten as a Personality Right: Where Article 21, the DPDPA 2023, and IP Law Converge

Introduction

A decade-old FIR that ended in acquittal. A matrimonial dispute settled years ago. A criminal proceeding in which a person’s name appeared only incidentally. For the petitioners before the Delhi High Court, these were not archival records but live injuries, reopened by every name-based search. On 29 May 2026, Justice Sachin Datta’s ruling in Laksh Vir Singh Yadav v Union of India answered them, consolidating over thirty-five writ petitions and recognising the right to be forgotten (‘RTBF’) as a facet of informational privacy under Article 21 of the Constitution.

The judgment merits attention on its own terms: it is the most detailed Indian treatment of de-indexing to date. But its larger significance lies in the questions of legal architecture it forces open. The RTBF now sits at the meeting point of three bodies of law that barely speak to each other – constitutional privacy under Article 21, the statutory regime of the Digital Personal Data Protection Act, 2023 (‘DPDPA’), and the court-made doctrine of personality rights in intellectual property law. This piece argues that where the right is doctrinally housed is not an academic question. It determines who can invoke the right, against whom, and with what remedy – and on each of these measures, the constitutional and statutory tracks are presently misaligned. The personality rights frame, left implicit in the judgment, may be what eventually unifies them.

The Constitutional Move: Horizontality, Not Just Privacy

The RTBF’s lineage runs through KS Puttaswamy v Union of India, where nine judges unanimously located privacy in Articles 14, 19 and 21 and identified informational privacy – the individual’s autonomy over the flow of information about themselves – as one of its core strands. Justice Datta anchors the RTBF squarely there, holding that the right to seek removal or restriction of personal information that no longer serves a legitimate public purpose flows naturally from that guarantee.

But the truly doctrinal import of this step lies in its enforcement against private individuals. The respondents, including Google and Indian Kanoon, contended that proceedings under Article 226 cannot issue against private persons, who are not discharging any governmental functions. Justice Datta drew a distinction between the present case and this line of precedents, observing that these writ petitions seek enforcement of a fundamental right, which has been declared by Puttaswamy as applicable both horizontally and vertically, and the failure to so recognise would make this fundamental right a ‘sham’ within the field that poses the greatest threat to it. Whether one agrees with the conclusion or not, it amounts to an implicit extension of the power of courts against such platforms.

That contest is not hypothetical, because the High Courts were already split. The Kerala High Court in Vysakh KG v Union of India held that a privacy-based claim to suppress judicial records cannot ordinarily co-exist with the open court system, that defining the grounds of an RTBF is the legislature’s task, and that courts may order de-indexing only sparingly – in stale matters or family court proceedings. The Madras High Court took the opposite view, directing redaction of an acquitted person’s name, and that decision is now before the Supreme Court at Indian Kanoon’s instance. Laksh Vir Singh Yadav therefore does not settle Indian law. It stakes out the strongest pro-RTBF position yet taken by an Indian court, in full knowledge that the apex court will have the final word.

The Three-Test Framework and the Problem of Global Reach

Rather than a blanket erasure right, the judgment builds a proportionality framework around three inquiries. The first concerns the character of the information and the outcome of proceedings: de-indexing is presumptively available where proceedings ended in acquittal, discharge or quashing, where the information has become obsolete, where continued accessibility inflicts disproportionate harm on dignity, employment or relationships, or where the matter involves intimate affairs such as matrimonial disputes. Lawful publication at one point in time, in other words, does not justify perpetual name-based searchability. The second inquiry concerns the individual’s public role: public officials and public figures face a stronger presumption of continued accessibility for records connected to their public functions, though not for personal matters unrelated to them. The third, borrowing from the Court of Justice of the European Union in Google Spain, asks whether the information remains adequate, relevant and necessary, or has lost those qualities with the passage of time.

Absolute prohibitions keep intact the essence of open justice: In paragraph 156 of Laksh Vir Singh Yadav the Court drew a distinction between the existence and accessibility of judicial records and their name-based digital searchability. It held that open justice requires judicial records to exist, be maintained, and remain accessible to persons with a legitimate purpose, but does not require an individual’s name to function as a ‘permanent and unlimited retrieval key’ through a commercial search engine. In paragraph 157, the Court further cautioned against the ‘perpetual and indiscriminate amplification’ of a person’s worst travails through search engines. It observed that ‘[a]n acquittal buried at the bottom of the “search results”, while the arrest dominates the search results, cannot be characterized as an ingredient of “open justice”.’ The Court therefore distinguished the mere existence and accessibility of a judicial record from its aggregation, ranking, and presentation through name-based searches.

Yet, while this framework clarifies when constitutional protection may justify de-indexing, it does not resolve the separate question of how that protection operates within India’s statutory data-protection regime.

The DPDPA: A Statutory Right That Is Not Yet a Remedy

On paper, India already has a statutory RTBF. Section 12 of the DPDPA grants every Data Principal the right to have a Data Fiduciary erase personal data once the purpose for which it was collected is no longer served. In practice, the statutory and constitutional rights diverge along three structural axes, and a fourth, temporal one that recent events have made decisive.

First, scope. The Act regulates Data Fiduciaries: entities that determine the purpose and means of processing. Courts and the judicial process do not fit that frame, so the statute offers little purchase over judicial records, precisely the category at stake in Laksh Vir Singh Yadav. Second, exemptions. Processing for the enforcement of legal rights and claims, and processing by courts in the exercise of judicial functions, fall within the exemption architecture of Section 17, and the Central Government holds broad powers to exempt further categories of fiduciaries and data. The domain where digital permanence wounds most deeply is the domain the statute most clearly carves out. Third, remedy. The Act routes grievances to the Data Protection Board, an administrative body with penalty powers; it cannot issue the binding, globally operative de-indexing directions that Article 226 permits.

The fourth divergence is timing. The DPDP Rules, 2025 were notified on 13 November 2025, but on a phased schedule under which the Board’s institutional machinery came into force immediately, while the provisions operationalising Data Principals’ rights – Section 12 included – take effect only eighteen months later, in mid-2027. As of this writing, the statutory right to erasure is law that binds no one. The constitutional track is not merely the stronger track; it is currently the only one.

That asymmetry carries an equity cost which has received far less attention than it deserves. Writ litigation is expensive, slow and geographically concentrated. A dual-track RTBF whose only functioning track runs through constitutional courts is, in effect, a right rationed by means. Unless the DPDPA framework, once operative, is read or amended to reach name-based searchability of judicial records, and unless the relationship between Board jurisdiction and High Court jurisdiction is clarified, India’s RTBF will remain most accessible to those least likely to need it.

Personality Rights: The Frame That Fits

The judgment’s most interesting dimension is the one it leaves implicit: the RTBF behaves like a personality right, and personality rights are creatures of intellectual property.

Indian personality rights doctrine is judge-made. ICC Development (International) Ltd v Arvee Enterprises located the right of publicity in the individual, derived from privacy, and incapable of vesting in events or corporations, while Titan Industries Ltd v Ramkumar Jewellers confirmed a person’s right to control the commercial use of their name, image and persona. The unifying interest across these cases is narrative control: who may attach what meanings to a person’s identity, in which contexts, and for what purposes.

Neither case, however, contemplated harm in the absence of commercial exploitation. While Titan deals with issues of misappropriation, the RTBF does not seek to redress exploitation of likeness; rather, it addresses the degradation of dignity, employment opportunities, and personal relations caused by constant exposure. Thus, an RTBF claim should not fall within the conventional ambit of the right of publicity, which is rooted principally in commercial and economic interests. It instead calls for recognition of a distinct personality-rights doctrine.

RTBF, therefore, may be understood as a defensive personality right: a right concerned not with controlling the commercial exploitation of one’s identity, but with protecting the individual against the continuing construction of identity through persistent and disproportionate exposure to personal information. The right is constitutional in nature, with an element of property interest, and is presently neither statutory nor exclusively private.

The same framework also makes it clear why the Court made a particularly well-balanced decision with regard to Indian Kanoon. Unlike the decisions that the Court ordered for other platforms, it chose not to remove judicial decisions, which can still be considered legally publishable in light of Section 52(1)(q)(iv) of the Copyright Act, 1957. It simply required that the platform stop name-based searching, while still allowing access through citations, case number, court, and date. What needs to be regulated then is not merely the content, but the access architecture itself, including indexing and ranking.

What Remains Open

There are three major issues that will influence the framework’s sustainability. The first of these is survivability. The Supreme Court will soon enter the fray regarding the difference in opinion between the Madras High Court and the Kerala High Court, and the principle of horizontality particularly begs to be challenged. The framework, being as detailed and fine-grained as it is, may either set the precedent that is then followed by the Supreme Court or be the upper limit which the Supreme Court later revises.

The second issue is technology. Publicly available judicial records can allow large language models to reconstruct personally identifiable data from pages long since de-indexed. Generative AI tools are swiftly becoming one of the leading ways of information search. Both the judgment in question and the new Data Protection and Privacy Act do not address AI-generated outputs. What seems like a solution to the problems of the last decade may prove inadequate.

Finally, there is the matter of design. The existing personality rights doctrine in India remains largely judge-made and is not comprehensively codified in legislation. The RTBF thus highlights another issue which is slightly different but relates to the former – the lack of any legislative basis for determining the extent of access to and retrievability of personal information. It would be wrong to think that legislative recognition of the right necessarily follows from defining the RTBF as a personality right. Rather, the purpose of legislative recognition is to define the contours of the new right, including its scope and the circumstances in which personal information may be subject to de-indexing. Such a framework could treat narrative control as a dimension of personality protection, alongside existing protections relating to a person’s name, image and identity.

Conclusion

Laksh Vir Singh Yadav provides a definition of RTBF in India which resolves its doctrinal confusion and the absence of an actionable right. However, it is evident from the above analysis that a number of aspects surrounding the issue remain unclear: the statutory right to erasure has not yet become operational and provides limited recourse in relation to judicial records; it is a constitutional right accessible to writ petitioners; and the relationship between the constitutional and statutory routes remains unsettled. The idea of the personality rights approach does not solve all the above issues but emphasises the most important element which should be considered when talking about the RTBF – an individual’s right to not be permanently identified by his or her algorithmically enhanced worst memory.

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This article has been authored by Lucky Sharma, a student at National Law University, Delhi. This blog is part of RSRR’s Rolling Blog Series.