This Article is written by Adv. Alexy Joy,
Member of Thrissur Bar Association.
Currently pursuing LLM from School of Legal Studies, CUSAT.
XXX v. Union of India, (2022)
Court: Kerala High Court
Judges: Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen
Brief Facts and Procedural History
The Kerala High Court was hearing nine writ petitions where each petitioner wanted him/ her name associated with court proceedings to taken out from the public domain.
One of the petitions said, criminal proceedings were initiated against the petitioner at the Judicial First-Class Magistrate, Chavakkad. Later, the complainant filed an affidavit stating that she does not wish to pursue the matter and consented to quash the entire criminal proceedings. The judgment allowing the affidavit and quashing the earlier proceedings on this matter was published by Indian Kanoon and indexed by Google. Similarly affected persons also approached the Kerala High Court through writ petitions under Article 226 of the Indian Constitution, against the violation of their Fundamental Right of ‘right to be forgotten’ under the right to privacy under Article 21. Thus, the Kerala High Court heard all those concurrent cases together.
Analysis of the Judgement
The right to be forgotten (RTBF) is the right to have the private information about a person be removed from Internet searches, so that, it’s not accessible to the public at large. According to K.S. Puttaswamy (Retd.) and Anr. v. Union of India (2017) 10 SCC 1,the Supreme Court held that the, ‘Right to Privacy’ is a fundamental right and it will be included in the ‘Right to Life’ enshrined under Article 21 of the Indian Constitution. Here the petitioner submits that the ‘Right to Privacy’ includes the ‘Right to be Forgotten’. The Supreme Court observed that, the right of an individual to exercise control over his personal data and to be able to control his/her own life would also encompass his right to control his existence on the Internet. In the light of which, the petitioner is entitled to the protection of his fundamental right to privacy and has a right to erase contents that are unnecessary, inadequate or no longer relevant. Also, in the recent 2021 case, Jorawer Singh v. Union of India W.P(C) 3918/2020, the High Court of Delhi, directed Google to remove the petitioner’s name as the verdict acquitted the man in a drug case which it affected his job prospects.
We know that ‘Right to be Forgotten’ is a subset of ‘Right to Privacy’ which is a basic right provided under Article 21 of Indian Constitution. It is the most valuable right which provides that,” No person shall be deprived on his life or personal liberty except according to a procedure established by law.” ‘Right to be Forgotten’ in India is handled by the Personal Data Protection Bill (2019), but it doesn’t yet have formal approval in India.
Considering the Judgement Kerala High Court provided that, reporting and publishing of Judgments are part of ‘Freedom of speech and expression’, which is provided under Article 19 of the Indian Constitution cannot be taken lightly without the aid of law. This case and other connected cases ruled that reporting and publishing of judgments are part of freedom of speech and expression. It must be mentioned here, that while dealing with petitions seeking enforcement of the ‘right to be forgotten’ against uploading of court orders or judgments on the internet.
By virtue of paragraph 64 of the judgment, a division bench of Kerala High Court Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen held that, if parties to certain cases insist that their personal details be erased from the Court systems, the Registry will oblige and not publish the same on its website.
In summation, it declares that a claim for the protection of personal information based on the right to privacy cannot co-exist in an Open Court Justice System. Also, the right to be forgotten cannot be claimed in current proceedings or in a proceeding of recent origin. It is for the Legislature to fix grounds for the invocation of such a right. However, the Court, having regard to the facts and circumstances of the case and duration involved related to a crime or any other litigation, may permit a party to invoke the above rights to de-index and to remove the personal information of the party from search engines. The Court, in appropriate cases, is also entitled to invoke principles related to the right to erasure to allow a party to erase and delete personal data that is available online. Also, it declares and holds that in family and matrimonial cases, arising from the Family Court jurisdiction or otherwise and in other cases where the law does not recognise the Open Court System, the Registry of the Court shall not publish personal information of the parties or shall not allow any form of publication containing the identity of the parties on the website or on any other information system maintained by the Court if the parties to such litigation so insist. The Registry of the High Court is bound to publish privacy notices on its website in both English and vernacular languages.
There are certain limitations when right to be forgotten is implemented. It is a major challenge in the field of journalism as they may face trouble in presenting the news and precise information to public. The journalists will suffer impediment imparting information and ideas through media. Also its violation of freedom of speech and expression, which is a universal human right, provided under Art 19 (1) (a) of Indian Constitution.
Also the removal of online content from the internet might affect the citizen’s freedom of expression. As we all know, for lawyers, it is very difficult to check the previous judgments if it is not available in the website. It will create great impact on freedom of speech and expression and to update with relevant judgment.
Conclusion
Arriving to a conclusion, both right to privacy and right to freedom of speech and expression are important fundamental rights and both are conflicting each other. On one hand it violates a person’s privacy with respect to his/her past acts and thus cause psychological and emotional suffering to the individual as it affects his present life. But on the other hand, freedom of speech and expression of citizens will get limited. However, a judgement consists of two parts- one which contains personal information and the other which consists of facets of law. The second part should make it available in website without including the names of victims or personal information .
Also, we know that Article 19(1)(a) of Indian Constitution provides right to freedom of speech and expression and this right is subject to the reasonable restriction in Article 19 (2) to of Indian Constitution. This should be amended.
There should be an amendment through which the right to privacy must be included in Article 19 (2) of Indian Constitution. However, right to be forgotten is a very complex issue as it brings uncertainty between right to privacy and right to freedom of speech and expression.
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