Most lawyers can't afford paid legal databases: Delhi HC in Indian Kanoon right to be forgotten case

The Delhi High Court on Wednesday observed that a vast majority of legal professionals cannot afford subscriptions to paid legal research websites and instead rely on judgments available on free portals like Indian Kanoon.

A division bench of Justices C Hari Shankar and Vinod Kumar made the observation while hearing a batch of appeals filed by Indian Kanoon against a single-judge's decision to recognize the right to be forgotten.

The Court said that many lawyers, particularly those who do not practise commercial law, cannot afford subscriptions to legal databases such as Manupatra and SCC Online where unredacted versions of judgments continue to remain available.

“Indiankanoon is a free website. It is not you and other people doing commercial law who constitute our legal profession. A vast majority of our legal profession today are persons who are in mufassil towns appearing before munsifs, judges of small causes, who may be appearing before Tis Hazari and Rohini doing small cases. They do not have a wherewithal to get access to get a Manupatra or SCC Online. Indiankanoon is their be all and end all since it is free," Justice Shankar said.

The Court added that access to judgments on the free legal databases like Indian Kanoon is essential for the right to livelihood of the legal professionals.

“A lawyer’s livelihood is dependant on the access to the law and legal judgments. That right is effectively being foreclosed. It is no answer to say that if you pay ₹85,000 a year you will get access. You cannot make the fellow pay. You are blocking his right to livelihood. That man’s right to livelihood which is dependant on access to the law. What is in the balance? It is the right to livelihood of the vast majority of our legal profession,” the Court stated.

The Court went on to observe that that access to judgments is “seriously impacted” by the right to be forgotten verdict as subscriptions amount to a blocking for the common practitioner who cannot afford Manupatra or SCC Online.

“The vast majority who can’t afford SCC Online are barred. It is not made more difficult for them, it is made impossible. When we ask, your only argument is, to subscribe. That defeats your entire argument. If subscribe is the answer, you have blocked access to everyone who does not have the money,” the Bench told counsel opposing Indian Kanoon's appeals.

The appeals arise out of the judgment delivered by Justice Sachin Datta on June 1. In that decision, the Court recognised a person's right to be forgotten and held that individuals can seek removal of their names from searchable versions of court records where the information is "no longer relevant" or serves "no legitimate public purpose."

The judgment has been challenged by Indian Kanoon. The platform recently told the Court that it is facing serious issues due to the right to be forgotten judgment.

It also said that the judgments, which it was directed to mask to preserve "the right to be forgotten", continue to be available on other portals such as Manupatra and SCC Online without any redaction.

Senior Advocate Akhil Sibal, who appeared for a respondent, on Wednesday argued that the right to be forgotten had not led to the complete erasure of the judgments.

“The person can still access the judgment, maybe with greater difficulty but not impossible to access. There are paywall sites. What is the relevance of the judicial record of my name? The judgment is not erased, judicial record remains. The name and identity is the information,” Sibal said.

However, the Court observed that the moment the case title of a judgment is hidden, it gets blocked for all practical purposes.

“To say that the judgments are available by name search on other paid sites, they are of no use to them, to the common lay practitioner who cannot afford it. The moment you block access to a judgment by case name, for practical purposes you have blocked the judgment,” the Bench remarked.  

Justice Shankar also rejected the argument that the judgments can still be accessed by using the other search parameters such as case number and judgment date.

“None of us in this court, without exception, can remember the case numbers of the cases we have handled. The argument to say that you can search by case number, date of judgment is of no argument at all.”

The Court stated that the claim to the right to privacy is usually allowed and upheld in matters pertaining to a person’s personal life, relationships and sexual orientation. 

“There he can say that unless I agree, don't make it known in public. But this is something that is already in public domain, you are not removing it but blocking the public to access on the basis of right to be forgotten. You are not actually being forgotten,” the Bench said.

Sibal, who was representing a person previously named in a CBI case, said it has been 10 years since he was discharged from the case. Sibal argued that his right to be forgotten cannot be ignored.

“What about me? What about my presumption of innocence and my reputation? What about my rights? They are ignored. What about me? What about being haunted my entire life? Is that not valuable,” the senior counsel said.

The Court will hear the matter next on September 21.