ARTICLE
15 October 2021

Right To Be Forgotten – An Unsettled Issue In The Realm Of Indian Jurisdiction

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The Madras High Court was recently called upon to exercise its writ jurisdiction, for directing the name of an accused person, acquitted from his charges in appellate stage...
India Privacy
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The Madras High Court was recently called upon to exercise its writ jurisdiction, for directing the name of an accused person, acquitted from his charges in appellate stage, to be redacted in the original judgment of conviction. Petitioner had pressed for recognition of his "right to be forgotten" as a subset of the right to privacy under Article 21 of the Constitution. The Madras High Court vide its Judgment titled 'Karthick Theodore v. Madras High Court and Ors.1 " passed by Hon'ble Mr. Justice N. Anand Venkatesh dated August 03, 2021, refused to issue the writ.

This issue before the courts has not come up for the first time. It has been raised in various high courts in India, the Delhi High Court being the latest. The issue has been settled in some parts of the world, like, in Europe this right is recognized under the Right to Erasure under the GDRP. Pertinently, with the advanced search engines in vogue, information about any person though through the electronic medium can be conveniently accessed by anyone, which causes serious impact on the reputation and privacy of that person. So far, the contours of this right in India are still unsettled, with different high courts having arriving at different interpretations of this right.

With the absence of any data protection legislation in India, which is still under consideration before the Legislature, the position of Right to be forgotten is a journey of inconsistency. Pertinently, the main question that exists now is whether this right to privacy can be exercised in the sphere of judgements and orders passed by the Indian courts or not. In this article, the authors have analyzed the decision of Madras High Court, this order being the latest on this issue.

The present case was filed by a person who was once convicted of an offence under Section 417 and 376 of IPC and was sentenced by trial court vide judgement dated 29.09.2011. But in the year 2014, the petitioner was acquitted of all the charges. Thereupon, the Petitioner filed a writ petition before Madras High Court alleging that in the entire judgement dated 29.09.2011, the petitioner is identified as an accused even though he was ultimately acquitted of all the charges. Therefore, particularly in view of fast access of information through social media, the reputation of the Petitioner is hampered in the eyes of society. Accordingly, the Petitioner sought recourse against the publication of his name in the Judgment of the trial Court, to secure his right of privacy. The Petitioner sought parity with other legislations enacted for protecting the identity of women and children that protects the identity and privacy of a person. The Petitioner submitted that this right should be extended to the accused in general who has been acquitted of all the charges.

The Court passed an interim order in the favor of the Petitioner by referring to the judgment of the Supreme Court in the case of Puttasamy Vs. Union of India2 which laid down the judicial prescription that the right to privacy is a fundamental right under Article 21 of the Constitution of India. The High Court thus accommodated the Petitioner to interim relief by directing that his name be redacted in the judgement. The High Court went forth to observe that the Right to Privacy under Article 21 includes a right to reputation. However, the court completely deviated from its interim order and gave a judgement to the contrary. The court based the judgement on various reasoning as highlighted hereafter.

THE FOCUS SHOULD BE ON CONSUMMATE RELIEF AND NOT ON ERASING NAME

The court was of the view that the damage to reputation or dignity of a person starts from the time a complaint is filed and FIR is registered, describing that person as an accused. Thereafter, it is only an order or judgement of acquittal that actually saves the honor and reputation of a person. Unlike USA, India does not have a system to redact the name. In USA such a person is given a chance to start his life tabula rasa and live a normal life exercising the rights provided in the Constitution. India recognizes only "The Juvenile Justice [Care and Protection of Children] Act, 2015" and Rules thereunder, and no other legislation for such a procedure.

PRINCIPLE OF OPEN JUSTICE

It is a settled principle of ordinary justice dispensation system that justice should be done in open. This has been carved in the fundamental facet of the system of administration of justice by the House of Lords in Scott v Scott3 wherein the court held that courts must administer justice in public, keeping aside the exceptions like matrimonial cases, cases relating to minors etc. In India, this principle of open justice was recognized in the case of Swapnil Tripathi v. The Supreme Court of India4 wherein the courts have stated that open justice embraces the element of public access to judgements of courts.

AFFIRMATION OF R. RAJAGOPAL V STATE OF TAMIL NADU5 OVER PUTTASAMY VS. UNION OF INDIA6

It was laid down by Supreme Court in R. Rajagopal v State of Tamil Nadu that it is an undisputed principle that Right to Privacy is a fundamental right recognized under Article 21 of the Indian Constitution, however, this right cannot be stretched when the matter has become a part of public records. Pertinently, once a matter becomes a public record, the right to privacy cannot subsist, and it becomes a subject for comment by press and media among others. As such, the High Court of Madras was inclined to be guided by the later prescription of the Hon'ble Supreme Court laid down in R. Rajagopal v State of Tamil Nadu, and thereby the High Court deviated from its earlier view based on the Puttasamy Judgement, while rendering the interim order.

WRIT DOES NOT LIE AGAINST AN ORDER OF A SIMILAR OR HIGHER COURT

In the present case, the prayer was made to issue a writ of mandamus against a judgement and order passed by the court in exercise of its criminal appellate jurisdiction to alter the description of the petitioner in the cause title and the body of the judgment. The Court held that this shall be against the basic rule of issuing a writ. A High Court cannot issue a writ against a the Judgment of another bench of same High Court or another High Court, or the Supreme Court. Pertinently, the High Court observed that writs are issued from "up to down" and not from "down to up".

HIGH COURT IS A COURT OF RECORD UNDER ARTICLE 215 OF THE INDIAN CONSTITUTION

As a court of record, the High Court is entitled to preserve the original record in perpetuity. The sanctity of an original record cannot be altered or dealt with except in a manner prescribed by law. The court also discussed the stand of the Court of Justice for the European Union (CJEU) in the case of Google Spain SL v Agencia Española de Protección de Datos7 where the court directed to "de-list information complained against from its servers. What cannot be lost sight of is the fact that there exists a General Data Protection Regulation (GDPR) for all European Union member states which has come into effect from April 27, 2016. Article 17 of this Regulation is titled Right to erasure and contains objective criteria which would guide a decision in erasure". However, there is no such statutory backing in India.

SUGGESTION AND CONCLUSION

The restraint of the court in directing the petitioner not to detract the name from the judgement is a positive step taken into record to curb the possibility of opening of floodgates of such cases and has taken a significant departure from its own interim order. The courts wanted to create a broader platform for the acquittals by drawing the analogy by stating that in India, protection has been granted to protect the reputation and privacy of women and children but the same is not provided for the acquittals in general. The protection granted under the principles of "Right to be forgotten" has to be balanced with the public interest in having access to the information that has fallen in the public domain despite the acquitted person's right. The court would have to maintain a balance between right to be forgotten exercised by the acquitted on the one hand and the interest of the public at large on the other by understanding the nature and gravity of the offence, age and intention of the petitioner and the principle of open justice.

In the author's opinion, a broader principle was uncalled for in this matter since this would only invite litigation to already overburdened courts without much clarity with regards to the evidence that was presented to the court, facts of the case and circumstances of the acquittal. Moreover, this would also hamper the research and information gathering mechanism for case search on the websites of the Supreme Court and High Courts in India. A far more nuanced approach needs to be adopted keeping in mind the right of public, importance of the information, freedom of speech of the acquitted and legislative approach adopted by the authorities. It would be interesting to see the reasoning and approach adopted by appellate courts if this case goes for appeal.

Footnotes

1 W.P. (MD) No. 12015 of 2021 and WMP (MD) No. 9466 of 2021

2 2017(178)AIC1

3 1913 A.C 417

4 2018 10 SCC 639

5 1994 6 SCC 632

6 (2017) 10 SCC 1

7 e C131/12, (2014), European Court of Justice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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