On May 25, 2021, Live Law reported that a Single-Judge Bench of the Delhi High Court headed by Hon’ble Ms. Justice Prathiba Maninder Singh, had given a remarkable interim order concerning ‘right to be forgotten’ (‘RTBF’) as a facet of the fundamental ‘right to privacy’, in Jorawer Singh Mundy @Jorawar Singh Mundy vs. Union of India and Ors., 2021 SCC OnLine Del 2306 (‘Mundy Case’).
In the Mundy Case, the Petitioner who is a US citizen by birth, had filed a writ petition under Article 226 of the Indian Constitution through Advocate Mr. Sanjay Kumar, seeking removal of an earlier reported judgment by the Delhi High Court in Custom vs. Jorawar Singh Mundy, CrL.A. No. 14/2013 (‘2013 Judgment’), which had upheld the Trial Court’s acquittal of the Petitioner from various criminal proceedings under the Narcotics Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’).
Importantly, a case was lodged against the Petitioner under the NDPS Act in 2009, when they were travelling to India. Subsequently, on April 30, 2011, the Trial Court acquitted them of all the charges. The Trial Court judgment was unsuccessfully appealed by the Custom Department, which yielded in the above-mentioned 2013 Judgment by the High Court, in favour of the Petitioner. Moving forward, the Petitioner returned to their home country US and pursued graduate education. They, however, faced a huge disadvantage in job opportunities and were not able to obtain any employment, as any potential employer who wanted to conduct their background verification could simply search and come across the 2013 Judgment online through a simple search on platforms like Google.
The Petitioner had impleaded Google India Private Ltd., Google LLC, Indian Kanoon, and vLex.in as Respondents, from whose platforms removal of the judgment was sought, under the instant writ petition. While one platform, i.e. vLex.in had removed the 2013 Judgment, the other platforms did not do so. Surprisingly, other acclaimed Legal Search platforms such as Manupatra, SCC Online and Westlaw were not impleaded by the Petitioner in the case, although this is presumably because these platforms aren’t freely accessible and have a lower viewership than competing open-access and free platforms like Indian Kanoon. Another interesting fact is that the Trial Court judgment was not sought to be removed, although the reason for this may be that lawyers and general public often rarely access any Trial Court judgments and such judgments are rarely ever indexed by legal platforms or tech mega-giants like Google, Bing or Yahoo.
While the Indian Constitution did not expressly provide for a fundamental right to privacy, the Supreme Court of India in its Nine-Judge Constitution Bench decision in K.S. Puttaswamy vs. Union of India, (2017) 10 SCC 1 (‘Puttaswamy Decision’), had unanimously recognized right to privacy as a ‘fundamental right’ of every individual, by locating it under various Constitutional provisions, including the fundamental right to life and personal liberty in Article 21 of the Constitution. In the separate opinions of Justice Dr. D.Y. Chandrachud (who wrote his opinion for himself, Chief Justice of India J.S. Khehar, Justice R.K. Agrawal and Justice S. Abdul Nazeer) and Justice S.K. Kaul, ‘informational privacy’ (also known as ‘data privacy’ in US Law) was recognized as an aspect of right to privacy, establishing informational privacy a fundamental right of individuals. However, the Puttaswamy Decision never actually discussed RTBF.
Practitioners, such as the former United States Attorney General, Mr. Jeffrey Rosen (Stanford Law Review, 2012), and Advocate Prashant Mali (NLIU Law Review, 2018), have primarily located RTBF (as derived from the European Court of Justice judgment in Google Spain, Case C-131/12, and later the EU General Data Protection Regulation regime), to be a sub-set of right to informational/data privacy. In particular, Mali states that RTBF, provides a right to an individual to request removal or erasure of their personal data floating through the internet. Prior to the Supreme Court’s Puttaswamy Decision, there were three High Court precedents related to RTBF, although they did not substantively discuss the concept. Interestingly, none of these cases have been discussed by the Delhi High Court in the Mundy Case.
First, the Gujarat High Court in Dharmraj Bhanushankar Dave vs. State of Gujarat, S.C.A. No. 1854/2015 (‘Dharmraj Case’), had adjudicated on a plea, which is similar to the ones sought by individuals while invoking a RTBF as defined by Mali. In the Dharmraj Case, an individual had sought for a permanent restrain on free public exhibition of a judgment and order in which they were acquitted in relation to criminal proceedings, including charges of murder. The plea was rejected by Gujarat High Court on the grounds that neither was the individual able to point any legal provisions in their favour, nor did a website publication classify as reporting.
Second, the Karnataka High Court speaking through Justice Anand Byareddy in Vasunathan vs. Registrar General, 2017 SCC OnLine Kar 424, had allowed a writ petition by a woman’s father seeking removal of his daughter’s name and his personal name from the body of an earlier court order (apart from its title), which was in relation to a case concerning a comprise decree arising from a criminal suit involving the woman and her husband. The High Court directed its Registry to both mask the name of the woman from the earlier order in High Court’s records (except the display of name on the High Court website and certified copies of the earlier order) and to ensure that any internet-search which mentioned the earlier order did not reflect the woman’s name. Interestingly, while recognizing that the order was in nature of RTBF under the EU Law and foreign jurisprudence, the High Court emphasized on the respect, reputation and modesty of women.
Lastly, the Madras High Court in Madras High Court, The Registrar (Judicial) vs. The Secretary To Government, Suo Motu W.P. (MD) No. 16668/2017, had discussed European Union jurisprudence on Data Protection and also mentioned RTBF, although it did not delve into a deeper discussion of RTBF. The Madras High Court had made a mandate to service providers to ensure regulation and removal of harmful content displayed on their search results or web-pages which has potential to cause mental trauma, such as the Blue Whale Challenge, which encouraged self-harm and suicide amongst young individuals.
CASES RECOGNISING RTBF
Subsequent to the Puttaswamy Decision discussed earlier, which had recognized right to informational privacy, there has been no case before the Supreme Court where it had to deal with RTBF. However, there have been two recent cases before High Courts where RTBF was mentioned. First, the Delhi High Court through an earlier order by a Single-Judge Bench (also headed by Justice Singh), in Zulfiqar A. Khan vs. Quintillion Businessman Media Pvt. Ltd. & Ors., 2019 SCC OnLine Del 8494 (‘Zulfiqar Case’), had adjudicated upon a prayer seeking removal of certain posts describing allegations of sexual harassment against the plaintiff until the disposal of an ongoing litigation, which were posted in some online articles published by The Quint, in wake of the #MeToo movement. Recognizing the RTBF as a facet of the fundamental right to privacy, the High Court in Zulfiqar Case had ordered The Quint to immediately remove the links uploaded on its website, social-media page handles and co-operate with the plaintiff until disposal of the case. Moreover, the High Court in Zulfiqar Case also permitted use of this order for removal or erasure of similar content posted against the petitioner elsewhere and report non-compliance of the order by third-parties to the High Court. Authors such as Harikartik Ramesh and Kali Srikari Kancherla (NLIU Law Review, 2020), have critiqued the order in Zulfiqar Case for failing to balance ‘right to freedom of speech’ and ‘right to information’ of the victim and the general public, with the ‘right to privacy’ (including RTBF) of the accused.
Second, the Orissa High Court speaking through Justice S.K. Panigrahi in Subhranshu Rout vs. State of Odisha, 2020 SCC OnLine Ori 878 (‘Rout Case’), while rejecting the bail application of an accused who had uploaded a sexual assault victim’s personal data on social-media, had recently lamented that there were no statutory provisions which allowed an individual to exercise a RTBF. Significantly, the High Court in Rout Case recorded that the concept of RTBF and the law laid down by the Supreme Court are in sync. As the case did not fall under writ jurisdiction, the High Court recommended (although did not direct) the victim or the prosecution, to seek appropriate reliefs from the appropriate authorities under law. Notably, the observations on RTBF in the Rout Case constitute an obiter, since the case did not itself concern a writ petition seeking enforcement of RTBF.
DELHI HIGH COURT’S ORDER
The High Court in the Mundy Case commenced its examination by stating that it had to consider the important constitutional question on “whether a Court order can be removed from online platforms”, which required a balancing of the ‘right to privacy’ of the Petitioner against the ‘right to information’ of the general public, as well as ‘maintenance of transparency’ in judicial records. The Court briefly mentioned the earlier precedents in Supreme Court’s Puttaswamy Decision, its earlier order in the Zulfiqar Case and the Orissa High Court’s order in the Rout Case.
The Court then mentioned that as the Petitioner was ultimately acquitted of the charges in the case levelled against them, there could be irreparable prejudice to the Petitioner, their social life and career prospects. Consequently, it took a minimalist approach and held that the Petitioner was prima facie entitled to some interim protection, while the legal issues are pending adjudication before the High Court. Moving forward, it directed Google India Private Ltd. and Google LLC to remove the 2013 Judgment of the High Court from the Google search results. Moreover, Indian Kanoon was directed to block the 2013 judgment from being accessed by search engines such as Google or Yahoo, until the next date of hearing (i.e. August 20, 2021).
There are at least five reasons why the Delhi High Court order in the Mundy Case as problematic. First, while the Delhi High Court made a prima facie review, it did not undertake a balancing exercise of the Petitioner’s ‘right to privacy’ (invoked as RTBF), with the general public’s ‘right to information’ and the need for courts to have maintenance of transparency in judicial records. While it is appreciable that the High Court may have prioritized protection of the Petitioner’s right to privacy and reputation (considering that it was yet to adjudicate on the constitutional question it set out above), a total lack of balancing even at an interim order stage in a prima facie review could encourage floodgates of litigation by individuals seeking removal of earlier judgments/orders from search results or web-pages, where they were involved as a party.
Second, the Supreme Court in the Puttaswamy Decision had mentioned that controlling and restricting dissemination of information is not an absolute right and needs to be balanced with other legitimate interests requiring the dissemination of information. All the six separate opinions in the Puttaswamy support the position that right to privacy is not an absolute right. Consequently, a balancing exercise is essential while adjudicating a writ petition seeking a prayer in order of RTBF (as a facet of right to privacy). Else, there may be chilling effects on other individual’s ‘right to freedom of speech and expression’, ‘right to information’ and the legitimate interests of the State in displaying the concerned information.
Third, as pointed out by the Yale-Oxford Rhodes Scholar, Advocate Gautam Bhatia (ICLP, 2017), the fundamental right to privacy recognized by the Supreme Court in the Puttaswamy Decision does not have a ‘horizontal application’ (i.e. exercise of an individual’s fundamental right against a person or entity other than the State). The application of fundamental right to privacy in India is ‘vertical’ in nature (i.e. between individual and the state). Therefore, while an individual can seek exercise of a fundamental right to privacy (including a RTBF) under writ petition against the state, or an entity owned or controlled by the state, under the present law on fundamental right to privacy, they cannot exercise this right against another individual or private entity, such as Google or Indian Kanoon. Consequently, the High Court should not have directed Google India Private Ltd., Google LLC and Indian Kanoon to remove the judgment from the results of search-engines, until the final adjudication on the constitutional question set out by it.
Fourth, as pointed out by the Corporate Lawyer, Sriya Sridhar (Spicy IP, 2021), the instant Delhi High Court order in the Mundy Case contradicts the position of law upheld in the earlier Gujarat High Court decision in Dharmraj Case. Due to this reason, there is potential for various conflicting High Court judgments and orders co-existing, leading to judicial incoherence and confusion. Lastly, as pointed out earlier, the discussion of Orissa High Court in the Rout Case which considered RTBF to be compatible with the fundamental right to privacy recognized in the Supreme Court’s Puttaswamy Decision is an obiter, and consequently, has no precedential value.
In light of the above critique, I believe that the Delhi High Court order in the Mundy Case should have either taken a preliminary balancing in its prima facie review and waited until adjudication on the constitutional question set out by it, before deciding on whether the Petitioner should be granted a relief in the nature of a RTBF or not. Nonetheless, the Delhi High Court has taken an important step by considering for the very-first time whether individuals can seek erasure of their past litigation records, especially when cases such as those involving charges under the NDPS Act have potential to harm the privacy and reputation of individuals.
The Court’s recognition of the potential harms to an individual, as well as their social life and career prospects is appreciable. It calls for a need to have a substantive legislative regime on Data Privacy and Protection in India, or alternatively, a constitutional amendment introducing a limited horizontal-application of a fundamental right to privacy, both of which would address the current void on RTBF. Although, given the fact that India’s constitutional landscape on fundamental rights, as well as the right to privacy is significantly different from that of the European Union and USA, the future of seeing a RTBF establishing itself under Indian law remains uncertain and arguably near-impossible.
The court’s recognition of the potential harms to an individual, as well as his/her social life and career prospects is appreciable. It calls for a need to have a substantive legislative regime on Data Privacy and Protection in India, or alternatively, a constitutional amendment introducing a limited horizontal-application of a fundamental right to privacy, both of which would address the current void on RTBF.