Delhi High Court Recognises Right To Be Forgotten, Lays Down Framework For De-Indexing Judicial Records
The Delhi High Court has held that the right to be forgotten is a constitutionally protected facet of informational privacy under Article 21 of the Constitution of India.
Justice Sachin Datta laid down the framework governing de-indexing and masking of personal information from judicial records available online.
In a 144-page judgment delivered on May 29, Justice Datta decided a batch of petitions filed by various individuals who had been acquitted, discharged, parties to matrimonial disputes, or whose names appeared incidentally in judicial records, seeking removal of links, masking of identities, or de-indexing of judicial records from internet search results.
The Court decided the issue as to whether an individual whose name appears in judicial records accessible through internet search engines is entitled to seek de-indexing of such records from name based search results and masking of personal identifiers from publicly accessible digital versions of those records.
Recognising the Right to be Forgotten as flowing from the constitutional guarantee of privacy, the Court held that the right to seek removal or restriction of personal information from public digital accessibility where such information is no longer relevant or serves no legitimate public purpose “flows naturally and necessarily” from informational privacy under Article 21 of the Constitution of India.
“The right to be forgotten, understood as subsuming the right of an individual to seek removal or restriction of personal information from public digital accessibility, where such information is no longer relevant or serves no legitimate public purpose, flows naturally and necessarily from the constitutional recognition of informational privacy under Article 21,” the Court said.
However, the Court emphasised that any claim for de-indexing or masking must be balanced against competing constitutional values such as freedom of speech, freedom of the press, open justice, and the public's right to know.
Drawing a distinction between de-indexing and deletion, the Court clarified that de-indexing merely removes a webpage or judicial record from name-based search results while preserving the underlying source material. The record itself continues to exist and remains accessible through purposeful searches.
Justice Datta further said that masking involves replacing names and other personal identifiers in publicly accessible digital versions of judicial records with neutral references such as “ABC” or “XYZ”, while preserving unredacted records in court archives.
Such masking, the Court said, is not censorship but a calibrated mechanism that protects informational privacy without undermining the principle of open justice.
Justice Datta observed that constitutional courts are not powerless in the absence of a specific statute governing the right to be forgotten.
While recognising the right, the Court reiterated that relief would depend upon a proportionality assessment in each case, taking into account factors such as the nature of the information, its continuing relevance, public interest considerations, and the impact on the individual's dignity, reputation and privacy.
“The proportionality analysis that underlies the right to be forgotten is equally applicable. The continued association of an individual's name with a judicial record in the public digital domain causes disproportionate harm to informational privacy, dignity and reputation that is not justified by any legitimate public interest in the eligible categories identified in this judgment,” the Court said.
The Court held that the following parameters would govern the grant of relief of masking:
- Only names and personal identifiers are masked, not the substance of the judgment. The reasoning, findings, legal conclusions, case number, court details, relevant dates, etc., remain intact and publicly accessible.
- The judicial record retains its full institutional, precedential and accountability functions.
- The complete and un-redacted version of the judgment is preserved in the court's internal records without exception. Masking applies only to the publicly accessible digital versions. The un-redacted version remains accessible to courts, parties, advocates, and authorities with a legitimate legal purpose.
- Masking operates both retrospectively, in respect of the existing publicly accessible digital version and prospectively, in respect of any future digitisation or uploading.
- A masking order by the concerned Court constitutes an order of a Court of competent jurisdiction for the purposes of Rule 3(1)(d) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. Upon receipt of such an order, Google and other search engine operators are obliged to de-index the masked judgment from name-based search results and 'Indian Kanoon' and other hosts are obliged to disable name-based search functionality on their platform/s in respect of that judgment. The concerned Court may expressly include this direction in its masking order.
- The concerned Court retains jurisdiction to review and revoke a masking direction if subsequent circumstances bring the matter within the absolute bars or other categories where relief is not available.
- Masking applications must be disposed of expeditiously, having regard to the continuing nature of the harm caused by the availability of personal identifiers in the public digital domain.
Justice Datta also said that where the Court has directed de-indexing in respect of any of the
petitioners in the matters, such litigants shall also be at liberty to seek masking of their names and personal identifiers from the publicly accessible digital versions of the relevant judicial record by moving an appropriate application before the concerned Court that rendered the original order or judgment.
Such an application, where made, shall be decided expeditiously, the Court said.
Title: LAKSH VIR SINGH YADAV v. UNION OF INDIA & ORS