On 29th May 2023, an order came from the Delhi High Court SK vs Union of India directing Indian Kanoon to Mask the name of the man acquitted and disclose its policy on the Right To Be Forgotten (“RTBF”). While there is nothing novel in the case as we have had cases on the issue in the recent past (see e.g. here), this issue makes me think what if this RTBF and masking the name of acquitted defendants becomes a trend. I wonder what gives impetus to the possibility of erasing or forgetting.
There can be two arguable (to some extent, overlapping) reasons for this – 1.) society’s perception when a person faces legal proceedings i.e. the perception of “the Accused is a Convict” 2.) the malicious prosecution of innocents. Appositely, the issue of RTBF is complex and judgments are not crystal clear on this in my opinion. Though the recent judgment Vysakh K.G. v. Union of India & Anr. And Other Connected Cases from the Kerala High Court is worth reading as it specifically asked legislature to make a law on this. Here, the Court negatively answered the question of, whether “Publishers of judgments, like Indian Kanoon, and other law journals, have no right to publish the details of parties ignoring the privacy rights of litigants which includes their right to be forgotten.” It instead noted that “Reporting and publishing judgments are part of freedom of speech and expression and that cannot be taken away lightly without the aid of the law.” Last year, the Madras High Court in Karthick Theodre v. Registrar General also remarked that “the “right to be forgotten” cannot exist in the sphere of the administration of justice particularly in the context of judgments delivered by Courts.” In this short post, I do not delve into the jurisprudence of RTBF or take any for/against stand, but only want the broach some questions that may help us frame better policy goals concerning RTBF.
Facts: The Petitioner is 29 years old who was acquitted in a Judgment where an FIR was registered against him under Section 376/506 of the Indian Penal Code, 1860 and charge sheet was filed. He approached the Court seeking masking of his name in a judgment. As per the said judgment, a reason he was acquitted was because “the prosecutrix’s testimony was held to be not trustworthy and reliable and was also held to be not corroborated on material points with the testimony of other prosecution witnesses.” The petitioner claimed to have suffered in his personal and family lives because of the the existence of the said judgment on the internet.
Accepting the averments of plaintiff, the Court held that “since the judgment is openly available on the Indian Kanoon website and is also accessible through any web search including Google Search, till the next date of hearing it is directed that the name of the Petitioner shall be masked on the Indian Kanoon portal. In effect, therefore, if the said judgment becomes visible in a search result or google search, the name would also not be visible.” The Court also asked the respondent no. 3 (which I suppose would be Indian Kanoon, please correct me if I am mistaken as the judgment does not list all the defendants) to “place on record an affidavit stating the policy in respect of the right to be forgotten as also as to the policy in respect of masking of names in such cases including in judgments of this Court as also in orders/ decisions passed by the Trial Courts”.
Around a week or so, Indian Kanoon posted (which seems to be a response to this DHC order?) the following message on its LinkedIn page –
“Name removal from court records is no longer a grey area. The law is now well settled with Supreme Court upholding R. Rajagopal vs State Of T.N (https://lnkd.in/g3Ffasfn) in Puttaswamy judgment and very detailed order from Kerala High Court upholding our right to publish court records in Dr.Krishna Menon vs High Court Of Kerala (https://lnkd.in/gqk9nfeu).
Similarly Madras High Court in a detailed judgment has upheld our right in Karthick Theodre vs The Registrar General (https://lnkd.in/gYjRQH7t) and the Gujarat High Court has very categorically denied the applicability of Article 226 to remove court judgments from private website in Dharamraj Bhanushankar Dave vs State Of Gujarat (https://lnkd.in/g9W7YwqU).
The law is on our side and the high courts are bound by the Supreme Court decision in R. Rajagopal vs State Of T.N. Also the courts can go through the final judgments from various high courts that have upheld our right to publish court records. Judicial discipline now requires courts to issue us notice in case of a doubt and we will file detailed reply. The courts should no longer grant ex-parte interim orders.
Reputation is not harmed by publication of public records. In fact the reputation is determined by what public records say. Not how much bank balance one has.”
Surely, the cases provided by Indian Kanoon are worth taking a look at to understand the status of RTBF. But let’s also look at other obvious but not-so-apparent details and implications that the RTBF trend carries.
E.g. the Court provided the Indian Kanoon link of the judgment (here: https://indiankanoon.org/doc/162755898/) wherein the name of the Petitioner is to be masked within a week. However, the link is not working currently and the entire judgment is unavailable. Given the masking of a name from the judgment is a technical terrain of Indian Kanoon, I wouldn’t wade into that. However, the unavailability of the judgment does signal something undesirable towards its impact on the access to knowledge.
What wonders me more is whether IndianKanoon is the only place where the judgment was available. There would be other websites where the same would be available freely or by payment. Google is a gigantic zone! Should all those websites/repositories erase (or forget!) the name of the petitioner? Should the official records of the court as available on the Court websites also erase the name of the petitioner?
Before further legitimizing this tricky terrain of RTBF, a thorough thought should be given to – who accesses and wants to access petitioner’s presence in the judicial proceedings and a judgment mentioning his name. Simultaneously, the question that how a person’s name in the judgment is accessed needs to be carefully deliberated. Not everyone would be interested in finding a judgment/order or trace legal proceeding where the petitioner is accused. But if someone is interested in finding the name of petitions s/he can anyway find it. More importantly, not every Google search with petitioner’s name would produce the results pertaining to petitioner’s pending or decided cases unless the petitioner’s name is super-rare or/and the case is very famous. In the later scenario, there is anyway less sense erasing the name as everyone knows about the case. It is an open secret that corruption is inevitable in any political setting, hostile witness is a known judicial phenomenon, the death (or murder) of witness before/during the trial/evidence is not unimaginable. An innocent can end up being convicted and a criminals can be proven innocent.
Given all these problematic possibilities, the present order serves as a valuable lesson to approach the Right to Be Forgotten (RTBF) trend with caution and contemplate their implications thoroughly before embracing them without reservation.
Image source: here