Madras High Court upholds ‘right to be forgotten’ of rape accused who was acquitted

The Madurai bench of the Madras High Court recently ordered that the name and personal details of a person acquitted in a rape case be deleted from court orders and judgments..A bench of Justices Anita Sumanth and R Vijayakumar also ordered web portal Indian Kanoon to take down the copy of judgment containing the name of the petitioner.The Court invoked the 'right to be forgotten' principle to order such redaction, stating that courts being “service institutions committed to the cause of justice," cannot keep their eyes shut to citizen’s right to privacy. “Being a service institution committed to serving the cause of justice, the Courts cannot close their eyes to the concerns of privacy and the right that ensure in the litigations to leave behind parts of their past which are no longer relevant. This, in our view, would be a proper understanding and reconciliation of the ratio of the judgments in Swapnil Tripathi and KS Puttasamy, balancing the concept of open Court/open justice on the one hand and privacy concerns of a citizen, on the other,” the High Court said in its February 27 order.The Court was hearing a petition filed by a man (petitioner) who was convicted by a trial court under Sections 417 (cheating) and 376 (rape) of the Indian Penal Code (IPC) but was subsequently acquitted of all charges by the High Court..The petitioner approached the division bench challenging previous decisions of the High Court Registry and a single-judge rejecting his prayer to redact his names and personal details from court orders, the High Court records and from the web portal Indian Kanoon. .The single-judge had dismissed his plea after holding that the High Court was a court of record under Article 215 of the Constitution and was thus, entitled to preserve the original records in perpetuity. The single-judge had further held that such original records cannot be altered in the absence of a clear law providing for the same. However, the petitioner argued before the division bench that one’s right to be forgotten and right to privacy were inherent in Article 21 of the Constitution. He further submitted that redaction of name and identity were legal entitlements in light of the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. Uploading of judgments containing personal details triggers stereotypical ideas in the minds of the readers which continue long after the slur cast by the original judgment has been removed by the legal process, it was contended..His plea was vehemently opposed by the court registry which argued that the petition was not maintainable since the High Court was a court of record and in the absence of specific rules, mandamus could not be granted to remove such details..However, the bench of Justices Sumanth and Vijayakumar said that while the sanctity of original court records cannot be diluted, courts were expected to perform a “balancing act between aggregation of data required to perform its functions and protection of personal data so collected.”.The Court went on to say that the concept of masking one’s identity in the interest of the parties was not a new concept and terms such as XYZ are used instead of names to protect the interest of parties.The bench said that while the High Court was expected to hold its records in perpetuity, it must exercise discretion on whether to make all such records public..“The grievance of an individual who wishes to invoke the right of erasure can now be address in a systematized manner. True, the provisions of Section 8(7) of the DPDP Act dealing with the Right of erasure have not been extended to the Courts by virtue of Section 17 of the DPDP Act. However, there is nothing that prevents the Courts from providing such succor or solace to deserving persons upon our being so convinced, and it is left for the Courts to sift the facts of each case and decide on such erasure/redaction,” the bench said while allowing the plea..Advocate S Jayavel appeared for the petitioner.Advocate K Samidurai appeared for the High Court Registry.