Recent SC Order Evokes Positive Development For Right To Be Forgotten In India

A Bench of Justices Sanjay Kishan Kaul and MM Sundresh, on July 18, directed the Supreme Court's registry to analyse options by which names of the petitioner and respondent could be deleted and removed from the public domain so that visibility on search engines is extinguished.

The petitioner and respondent were aggrieved with their names being displayed in the public domain in relation to offences committed on the modesty of woman and Sexually Transmitted Disease (STD). They submitted that this amounted to breach of their privacy and caused enormous loss to their dignity.

It was further submitted by the petitioner that the right to be forgotten and right of eraser being rights of privacy, the name of the petitioner as well as the respondent be removed/masked along with the address, identification details and case numbers to the extent that the same are not visible for search engines.

The right to be forgotten, though nowhere mentioned in the Constitution, emanates from the right to life and personal liberty enshrined under Article 21 of the Constitution. A plethora of judgments have led to the development of law on this aspect.

In Kharak Singh v. State of Uttar Pradesh (1962), the Supreme Court held that, "By the term ‘life’ as here used, something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by amputation of an armored leg or the pulling out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world."

The Supreme Court, in its landmark judgment Justice K.S. Puttaswamy v. Union of India (2017) held that right to privacy was a fundamental right. The apex Court observed that, “Life and personal liberty are inalienable rights. These are rights which are inseparable from a dignified human existence. The dignity of the individual, equality between human beings and the quest for liberty are the foundational pillars of the Indian constitution.."

The jurisprudence surrounding the right to be forgotten has evolved rapidly in the past couple of years owing to the magnitude of technological advancements that are taking place.

The concept has popularized massively in the west. The Court of Justice of the European Union recognised the concept in a 2014 ruling which involved a Spanish lawyer who sought to have online references to prior debt deleted from the internet. 

In the Western landscape, the European Union Regulation of 2016 recognises “the right to be forgotten”. As per the General Data Protection Regulation (GDPR), the right to control one’s data is meaningless if people cannot take action when they no longer consent to processing, when there are significant errors within the data, or if they believe information is being stored unnecessarily. In these cases, an individual can request that the data be erased.

After the Puttaswamy judgment, High Courts in India have also been at the forefront of protecting right to be forgotten of individuals who invoked their jurisdictions. 

In Subhranshu Rout v. State of Odisha (2020), the Orissa Court examined the right to be forgotten. While denying bail application wherein the Petitioner, who was the accused in the FIR, had released certain objectionable images of the complainant on Facebook against her will, the Court remarked that although the statute prescribes penal action for the accused for such crimes, the rights of the victim, especially, her right to privacy which is intricately linked to her right to get deleted in so far as those objectionable photos, have been left unresolved. 

The Data Protection draft bill has incorporated the tenet of right to be forgotten. The Bill and its interplay in the society would be seen once it is passed and enacted.

The further evolution of this very essential right will be eagerly observed throughout the country.