Constitutional Law

Right to be Forgotten: Applicable against non-state entities?

Pratyush Singh

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This article examines the jurisprudential development of and challenges to the Right To Be Forgotten in the Indian context. This is analysed in the light of the recent Madras High Court judgement wherein an acquitted person was denied the RTBF from court records.


The right to be forgotten (“RTBF”) is a right that empowers an individual to seek the removal of their personal information from the internet when certain conditions are met. In a time wherein the internet acts as a repository of data, having such a right within the legal system becomes imperative. RTBF was first accepted by the courts in Europe under the General Data Protection Regulation, and has been recognized by some courts in India as a subset of Right to Privacy under Article 21. However, in a recent judgement dealing with RTBF, the Madras High Court ruled that such a right cannot be enforced.

With reference to this judgement, the broad aim of this paper is to contend that the RTBF should be enforceable against non-state entities even within the current legal system. To that end, first, I shall briefly lay out the judgement and what the judges opined in the case; second, put forth reasons as to why RTBF should be enforceable; and third, present what this model of RTBF would look like in India. 

The Madras High Court Judgement:

In the above-mentioned case, W.P.(MD) No.12015 of 2021¹ (“Madras High Court judgement”), the anonymous petitioner had been acquitted from charges of rape and cheating under the Indian Penal Code (“IPC”) in 2014. Although the petitioner was acquitted, his reputation was still being plagued by the judgement. This was because anyone could view the judgement by simply typing in the petitioner’s name in a web search engine. Hence, he requested the court to redact his name from the previous judgement. However, the court refused to do so.

The decision was based on the following reasons, first, removing the petitioner’s name from the judgement might be counterproductive as there may exist other forms of publications and the judgement of acquittal actually helps preserve the person’s character; second, India practices an ‘open justice system’; third, right to privacy cannot be applied for public records; fourth, a High Court is a court of record and cannot make changes to its judgments; fifth, judicial orders cannot be said to violate fundamental rights; and sixth, no statutory backing exists for the enforcement of RTBF.

It becomes very apparent that the court has put much emphasis on the fact that judicial records cannot be altered. Owing to the petitioner’s request solely focusing on removing the judgment itself, the court does not delve into the question of ‘only removing the judgement from the search results’. However, this was surprising on the petitioner’s part, considering that accidentally stumbling upon their name with a simple Google search was their primary concern. The following section deals with the reasons why, had the petitioner requested for the removal of the judgment from Google or other search engines, the same should have been granted. 

Enforcement of RTBF: 

The RTBF was recognized as a part of right to privacy under Article 21 by Justice Kaul in K. S. Puttaswamy v. Union of India. In his concurring opinion, he stressed upon the need to have a right that lets the users of the internet have control over their data. However, he stressed upon a balance of such a right by stating that “The existence of such a right does not imply that a criminal can obliterate his past, but that there are variant degrees of mistakes, small and big, and it cannot be said that a person should be profiled to the nth extent for all and sundry to know.” This statement clearly implies that a person’s previous identity should not be held against them. In the same judgement, Justice Chandrachud states that anything that has a social stigma becomes a permanent part of someone’s identity if Aadhaar is made mandatory. He had made the statement in the context of manual scavengers. This line of reasoning can be extended to the petitioner’s case as well. A person accused of rape will always be viewed through a prejudicial lens, even if proven innocent. 

A point to note is that even the roots of RTBF are based on similar issues of redaction of names from judgements. RTBF can find its origins in the French law, le droit à l’oubli (right to oblivion). This right gave convicted criminals (after having served their time) the ability to contest the publication of details regarding their judgement. Even the Model Prison Manual speaks about the after-care services which involve “helping in the removal of any social stigma…because of his incarceration.” If such services can be provided to ex-convicts, why not to the acquitted? Justice Murlidhar in Babloo Chauhan @ Dabloo v. State Government of NCT of Delhi opined that falsely incarcerated people often face discrimination without any hope for social reintegration. Hence it becomes the duty of the court to offer any remedy that helps the people battle the social stigma that follows a criminal trial of an innocent person.

Such remedies of removing search results are also not completely unheard of. In Zulfiqar Ahman Khan v. M/s Quintillion Business Media Pvt. Ltd. & Ors., the court restrained the publication of articles that painted the petitioner guilty in a sexual harassment claim. They also ordered the search engines to not showcase any excerpts of the articles in their search results. Lastly, the courts in this case acknowledged that ‘right to be left alone’ and ‘right to be forgotten’ are just the two ways in which the right to privacy manifests itself. 

Moreover, in Vasunathan v. The Registrar General & Ors., the courts redacted a woman’s name from judgement in a writ petition filed by her father. The point to note here is that this was not a case of Section 228A² of the IPC. This case merely dealt with an older criminal suit between the woman and her husband. Even in this case, the person faced a similar issue wherein a Google search with their name would result in their older judgment being displayed. Supporting his judgement, Justice Bypareddy remarked that “This would be in line with the trend in Western countries where they follow this as a matter of rule ‘right to be forgotten.” Hence the idea of RTBF was incorporated in this judgement.

Lastly, in the most recent judgement regarding RTBF, a similar stance was taken by the High Court of Delhi. The issue in this case was whether a judgment can be removed from an online platform. The High Court in this case provided interim relief to the petitioner by asking Indian Kanoon to remove the judgment from the search engines until the next hearing. The court considered the fact that despite the petitioner’s acquittal, he faced prejudice in his social life and while seeking employment. The next hearing of the case is on 20th August so it would be interesting to see what the final decision is reached by the courts.

All these cases convey that factors such as prejudice in social or professional life can be considered to redact the name from web searches if not for judicial records. This idea is deeply rooted in the dignity and privacy of the person. Even in the case of Swapnil Tripathi v. the Supreme Court of India, which the Madras High Court judgment cited for its justification, a similar thought was involved. The court cited this judgement to showcase that public access to judgements was upheld. However, even though this case upheld the live broadcasting of hearings, it said that such broadcasting would be subject to the “dignity and privacy of the participants.” 

All these cases showcase that the judges on various instances have recognized and accepted the principles of RTBF. This right helps the acquitted to continue with their lives without being burdened by the judgments that they were once a part to. The following section deals with the issues that arise while enforcing such a right and whether or not they should be considered. 

RTBF Model in India:

This section deals with three aspects of the RTBF against private entities. First, whether such a right is even enforceable against non-state entities (horizontal application) under Article 21, second, how do we balance RTBF with competing rights, and third, what factors should be taken into consideration while granting such a right.

A common criticism levelled against the application of RTBF is whether it can be enforced against non-state entities. However, the Constitution does not bar the horizontal application of Article 21. Article 21 protects a person’s personal liberty which cannot be violated except by procedure established by law. By not limiting such protection to just against the ‘state’, the Constitution permits the horizontal application of Article 21. Using the same reasoning, and deriving its powers from Article 32, the Supreme Court in Vishaka v. State of Rajasthan, issued a set of guidelines that even the private actors had to comply with. Even in Paramanada Katara, Article 21 was read to impose a positive obligation on private doctors. 

Justice Verma in Vishaka opined that there exists a duty of the state and the courts to formulate and give force to legal systems in which the fundamental rights of an individual are protected. Similarly, Justice Kaul in Puttaswamy expressed concerns about how big data companies like Uber, Facebook, and other such non-state actors can track a person’s movement and decisions and some form of protection is required against it. Hence, it becomes imperative to have laws that can regulate the extent of information that these entities store. 

While there currently exists no statutory backing for RTBF (reason stated by the Madras High Court), there have been numerous cases such as ‘X’ v. Hospital ‘Z’, wherein right to privacy itself has been said to be an integral part of Article 21. Furthermore, to claim that the mere absence of a law is enough to disregard a claim seems evasive. The courts do have the power to make laws that are binding in nature under Article 141. The courts have previously read into Article 21 to give it a more expansive meaning; like in Olga Tellis v. Bombay Municipal Corporation where ‘right to livelihood’ was recognized as a part of Article 21, or in Maneka Gandhi v. Union Of India where the courts held that ‘procedure’ under Article 21 implies fair and not formal procedure, and adopted the ‘due process’ doctrine.

There also does exist Section 20 of the Personal Data Protection Bill 2019 that lays down the provisions for a RTBF. However, until it is not recognized as an act, we would have to rely on the existing jurisprudence for its enforcement. The enforcement would involve a balancing RTBF with competing rights. 

In ‘X’ v. Hospital ‘Z’ the courts opined that if there is a conflict between two fundamental rights, the one more inclined towards public interest should be upheld. The standard of weighing public interest against individual rights is inherently problematic. It is a utilitarian argument that fails to consider factors of justice. Take the example of G. Sundarrajan v. Union of India wherein the Supreme Court approved the setting up of a power plant in Kudankulam stating that the rights of the general interest of the public outweighed the smaller violation of Article 21 of a community. Justice Mishra opposing this narrow utilitarian ground stated that “the life of some cannot be sacrificed for the purpose of the eventual larger good.” Furthermore, Ronald Dworkin mentions that such calculation of weighing public interest and rights is often tampered by our inherent biases wherein we fail to apply the principles of egalitarianism to the given situation. Merely ascribing higher value to a side because more people support it or benefit from it can lead to majoritarianism. Hence, while public interest can be one of the factors that the court considers, it should not be the sole factor.. 

Lastly, we come to the question of the factors that should be considered while enforcing the RTBF. In Subhranshu Rout v. State Of Odisha, Justice S. K. Panigrahi referred to NT1 and NT2 v. Google LLC to showcase how when information about the crime has become “out of date, irrelevant and of no sufficient legitimate interest,” they can be removed from search engines. While considering all these factors, the court should at least on a case-by-case basis be able to provide some relief to the aggrieved parties until the legislature lays down a policy. Countries like Switzerland already have a law that forbids media houses from publishing anything related to a person’s criminal history after their sentences are completed. It is not deemed to be worthy of being considered as a news item because “The truth of the facts could no longer justify the infringement of the plaintiff ’s right to have his honour and his private life respected.”


The fact that the development of the RTBF in India is at a very nascent stage, does not make it unessential. These rights have a universal application, and in a time where “forgetting has become the exception, and remembering the default,” they are all the more required. The Madras High Court failed to consider the broader questions that surrounded RTBF. It is an integral part of Right to Privacy that can heavily impact the quality of life of a person. To that end, it must be given the same level of protection as does any other aspect of Article 21.

RTBF cannot be absolute so as to remove judicial records from its entirety. However, merely removing the search results in instances where the acquitted is being subjected to prejudice should be an option that the courts consider. RTBF borrows its features from the principles of privacy and reformative theory and hence, acts as a safeguard against freezing a person’s identity in time. 

[1] The name of the petitioner has been kept anonymous on purpose to respect their request.
[2] S. 228A – deals with the prohibition of identity of victims under some offences. It is often used as a ground for redacting the name of a victim of sexual violence.

Pratyush Singh is a second year student of the B.A. LL.B (Hons.) programme at National Law School of India University, Bangalore.