Legal database platform Indian Kanoon on Wednesday posed a question before the Delhi High Court regarding the extent to which a judicial direction can be issued to legal websites to deindex and redact name of individuals, who have been acquitted or discharged in criminal cases, from judgments which are a record of court.

Senior Advocate Arvind Datar appearing for IndianKanoon put the query before a division bench headed by Justice C Hari Shankar while arguing its challenge to a single judge ruling directing it to disable the name based search facility of court records.

The single judge had recognised the “right to be forgotten” and laid down the framework for de-indexing and masking of personal information from judicial records available online.

It is Indian Kanoon's case that the ruling unduly curtails the principles of open justice and the public's right to access judicial records.

During the hearing today, Datar submitted that a legal website like IndianKanoon cannot be clubbed with news outlets or general websites reporting about a criminal cases

“A High Court judgment is a record of court. It will be there for eternity. It cannot be tampered with except by the judiciary itself. The question today is to what extent can the court direct legal websites to deindex and redact (court judgments)?,” he said.

Datar also submitted that the single judge has “mixed” legal websites with other search engines. He said that what effectively the impugned judgment has held that anyone can access judgments on IndianKanoon by entering case details or relevant provisions of law but not by names of individuals.

On this, the Court queried: “Suppose we give a name and it throws IndianKanoon as one of the search results. We click on it and the judgment pops up. What is it in this result which according to the judgment has to be removed?”

Datar replied that the impugned judgment has directed IndianKanoon, a legal website, to de-index the judgments which means that the same cannot be accessed by anyone and that the judgment can remain but in a masked form.

“It will be on my platform but it will be inaccessible,” he said.

Appearing for the respondent in one of the appeals, Senior Advocate Akhil Sibal said that every other intermediary, including IndianKanoon, has complied with the impugned judgment, which warrants no interference.

“The single judge discusses deindexing and delinking. Indian law and foreign law is looked at. In my case, I am someone where 10 years ago I am discharged. The single judge has done distinction between masking and deindexing. The court has said I am not directing masking,” he said.

On this, Justice Shankar remarked that on a prima facie reading, to say that someone should not be able to access a judgment by giving name of a party will be a difficult proposition.

“If the single judge says that one of the considerations which can tilt to balance interest is public interest, then public interest is certainly in access of this. No one knows what is the writ number of case details,” the Court remarked.

As Datar said that the idea is to remove the level of accessibility, Justice Shankar added that legal websites, including Manupatra and SCC online, are used “day in and out” and it will be a herculean effort if the judgments are only to be searched by giving case details and petition numbers.

“It is not even remotely a substitute for word search,” he said.

The Court issued notice in the appeals and listed the matter for hearing on September 02, saying that the appeals raise serious issues of accessibility.

The single judge, in its judgment delivered on May 29, directed search engines and legal database platforms to de-index and disable name-based search functionality in respect of judgments, orders and news articles covered by the petitions.

Holding that right to be forgotten is a constitutionally protected facet of informational privacy under Article 21 of the Constitution of India, the single judge laid down the framework governing de-indexing and masking of personal information from judicial records available online.

Indian Kanoon, in appeal, has argued that the direction is “overboard” and prejudices the constitutional values of open justice and the right to information.

The appeal states that once information forms part of public court records, the right to privacy ordinarily does not survive over those records except in recognised statutory or judicial exceptions such as sexual offence cases, juvenile matters and other protected proceedings.

The appeal also submits that name-based searches are integral to legal research and are widely used by lawyers, litigants, researchers, students and even judges for locating precedents. Restricting such searches, it argues, disproportionately affects its business and infringes its freedom to carry on trade under Article 19(1)(g) of Constitution of India.