Right to be forgotten goes before SC, Madras HC order stayed

Removing judgments from public domain by court order under the right to be forgotten after the acquittal of an accused in criminal cases will have “very serious ramifications”, the Supreme Court observed on Wednesday.

The top court, however, agreed to examine the knotty question of law as to whether an accused, after being absolved in a criminal case, can seek removal of the judgment from the public domain, including digital platforms, in exercise of their right to be forgotten.

"How can a court order this? To say that the judgment, a public document, be pulled down will have very serious ramifications," said a bench comprising Chief Justice D Y Chandrachud and Justices JB Pardiwala and Manoj Misra after taking note of the submissions of Ikanoon Software Development Pvt Ltd, a Bengaluru-based legal website.

The firm said the Madras high court asked it to take down a judgment which revealed the identity of a person who was acquitted in a rape and cheating case.

"Issue notice, and in the meantime, the directions of Madras high court shall remain stayed," the bench ordered. The court said it will settle the law on the issue.

The website, in its plea filed through lawyer Abiha Zaidi, said the high court decision "adversely impacts the freedom of speech and expression of the petitioner and the public at large, guaranteed by Article 19(1)(a) of the Constitution as well as the petitioner's freedom of trade, occupation and profession protected by Article 19(1)(g)."

The counsel for the website said the high courts of Kerala and Gujarat have held that there was no right to be forgotten in such cases, while the Madras high court in the present case took a contrary view.

"There is a genuine question of law emerging from contradictory judgments from different high courts," the lawyer said.

The bench asked the counsel, appearing for the person who had moved the high court, "Assuming you are being acquitted, how can the high court ask him (the website) to pull down the judgment which is part of the public document ...once the judgment is delivered it is part of the public record."

The bench said in some cases, the courts, on their own, redact names or mask the identities of people in sensitive cases. “Ordering the removal of an entire judgment was farfetched," the CJI said.

The bench said such a precedent would lead to a situation where the litigants in commercial disputes may say that the judgments be removed as they may reveal financial information about the litigating parties.

"Then people may say look, my commercial secrets are involved, there is an arbitration case, pull down the judgment in the arbitration case, that will have very serious ramifications," it said.

The bench said even a convicted person may come up with the plea, saying he or she has served the sentence.

A nine-judge bench headed by then CJI J S Khehar had on August 24, 2017, declared the right to privacy a fundamental right under Article 21 (right to life and personal liberty) of the Constitution.

It had also held that the right to privacy would include the right to be forgotten and the right to be left alone.

The website said it has removed several sensitive judgments and cited examples of sexual offence cases involving children as victim or accused.

"It is submitted that the impugned judgment contravenes settled law established by this court in the case R Rajagopal vs State of Tamil Nadu, wherein it was held that the right to privacy is intrinsic under Article 21 of the Constitution but does not extend to protecting an individual from publication of public records, such as court decisions," the plea said.

The high court judgment adversely affected various fundamental rights of the citizens by limiting their "access to court records, curtailing its database and impeding its operations," the website said.

The high court had directed the website to remove the judgment of April 30 from its legal database under the "right to be forgotten”.