Right to be forgotten case in Delhi HC: Indian Kanoon flags selective approach in directive to mask judgment details

Online legal database Indian Kanoon on Wednesday told the Delhi High Court that details of judgments that it was earlier directed to mask to preserve "the right to be forgotten" of certain litigants, continue to be available on other portals such as Manupatra and SCC Online.

A Division Bench of Justices C Hari Shankar and Vinod Kumar was hearing a batch of appeals filed by Indian Kanoon against a May 29 single-judge ruling.

The May 29 ruling had laid down guidelines on how personal details may be hidden in publicly available judgments or orders to protect the privacy and the right to be forgotten of certain litigants.

The judgment was passed on petitions by diverse individuals who no longer wished to be publicly linked to closed legal proceedings.

At the time, the single-judge Bench had also directed Indian Kanoon to restrict its name-based search functionality in respect of the petitioners.

Any orders or judgments concerning them may remain accessible only by case number, citation, court details and date, the single-judge had said.

Today, Indian Kanoon highlighted that it is the only legal database affected by the May 29 directive. Representing the platform, Senior Advocate Arvind Datar told the Court,

"The judgment will be on my portal, but it will be inaccessible (since name-search option is disabled). You delete the newspaper report and the TV channel, but you cannot do that (deletion) with judicial orders. I am the only legal website (affected). The judgment continues on SCC Online, it continues on Manupatra, and it continues on other platforms. If the order is on tax fraud, it will be on Taxmann," he stated. 

This aspect was raised in Indian Kanoon's pleadings as well, in which it said that the May 29 ruling unfairly singled it out among multiple legal databases.

The appeal further said that the May 29 directives unreasonably restricted Indian Kanoon's freedom to conduct business, since name-based search is central to how lawyers, litigants, and researchers use the platform.

Any redaction of records should originate at the level of court registries rather than being imposed on private platforms, the plea had added.

In today's hearing, its counsel, Senior Advocate Datar, added that legal databases of judgments and orders uploaded by a court of law stand on a different footing from media portals carrying news about such orders or judgments.

"I am on a legal footing. One cannot club a legal website with a newspaper report. As far as a legal website is concerned, if it is a High Court judgment, it is a court of record, then I cannot mask it. I cannot say remove it from court website and so it is for eternity. The Court of Record cannot be tampered with, unless the judiciary directs," he said.

He also highlighted that directives to de-index or redact details of a judgment already uploaded by a court of law, restricts the people's access to such resources.

"By redacting, you are limiting the access of other people. The point of law is, to what extent can the court direct legal websites to remove, redact, de-index the names. We only prepare the headnote and report the judgment," he said.

"We can understand an argument that if the court has not masked something. you cannot ask the legal website to mask something that the court has not masked," the Court replied.

Meanwhile, Senior Advocate Akhil Sibal, representing a party who opposed Indian Kanoon's appeals, pointed out that de-indexed court judgments can still be accessed through their case numbers and citations.

The Court, however, noted that if the name-search option is disabled across all such legal databases, if would become very difficult for people - including lawyers - to access any judgment.

"Suppose this principle is made applicable across all legal software; your practice will go for a toss. If you are going to say that on Manupatra and SCC Online, you have to search by writ petition number, you will never be able to access any judgment ... You cannot say the person who wants to access (a judgment or court order) needs to know the case number. No one knows this," the Court said.

Sibal went on to distinguish between legal databases on which judgments are freely available (like Indian Kanoon) and legal databases offering services only to its subscribers.

"With the sites that are not behind paywalls, anybody having access can go and that stigma never goes away, I (a litigant named in closed legal proceedings) cannot move on even after ten years. With this kind of accessibility, the idea of de-indexing is to remove that level of accessibility," he explained.

The Court, however, was not persuaded. It expressed that it was inclined to stay the single judge's directive that Indian Kanoon restrict its name-search option.

"That level of accessibility (to court orders and judgments by searching for its case name) cannot be removed. If you are going to say that to access a judgment on Manupatra or SCC Online by going into the subject or concept involved, certainly you have it, but it is a Herculean effort to access (without a name search). It is not even remotely a substitute for a name search," the Bench said.

The Court, however, eventually did not pass any such interim stay order and listed the case for further hearing on September 2.

"Learned counsels fairly state that instead of entering into interim aspects, these petitions raise serious issues of accessibility vis-à-vis right to privacy, etc. (and) they may be heard on merits," the Court recorded in its order today.

Advocates Apar Gupta, Naman Kumar and Uzma Sheikh also appeared for Indian Kanoon.

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