Only Citizens, Foreigners Residing In India Can Invoke A.21: Google Tells Karnataka High Court In Sri Lankan Judge's Plea Against Online Content

Google LLC told the Karnataka High Court on Wednesday (April 15) that the' right to be forgotten' has been consciously omitted from the Digital Personal Data Protection (DPDP) Act 2023, and that a foreign national residing on foreign soil cannot invoke Article 21 against a private actor such as Google before a writ court in India.The submission was made by Google LLC before Justice Sachin Shankar Magadum who was hearing a writ petition filed by a sitting judge of Sri Lankan Supreme Court Justice AHMD Nawaz seeking removal of certain allegedly defamatory content online, invoking his "right to be forgotten" under the Constitution of India. The plea also seeks a direction to the respondents to impose a complete ban on the URL searches and also allow the petitioner "to be forgotten for a crime" he never committed. The petition seeks direction to the Union Ministry of Electronics and Information Technology, as well as Google, to remove all allegedly defamatory content regarding the petitioner and prevent the reproduction of similar material.Representing Google LLC, advocate Manu P Kulkarni contended that the rights envisaged under the Constitution of India apply only to persons within the territory of India. Pointing to a note filed by Google LLC in the matter, Kulkarni stated that the fundamental rights will not accrue beyond the bounds of Indian Territory."Rights conferred under Indian constitution apply only to citizens abroad or persons in the Indian territory. Here is a Sri Lankan judge...MeitY (Ministry of Electronics and Information Technology) has been made a party only to make a claim to attract jurisdiction. I (Google) am a private party, and I am amenable to the jurisdiction of this court for my actions within the country alone,” he said.He further submitted that 'Right to Reputation' is not a fundamental right, but a common law right. Kulkarni submitted that a foreign national can possibly only file a civil suit within the Indian territory, and that too, only if the foreign national was residing in India.“He has a 'right to be forgotten' he says. After the enactment of the Digital Personal Data Protection (DPDP) Act, 2023, the Parliament has occupied the field of law and the specific right to be forgotten has been forgotten ...He is in our courts now but he can only file a civil suit, that too at Sri Lanka…," Kulkarni said. On the issue of "forum convenience" Kulkarni stressed that India and the Karnataka High Court is an "inconvenient forum" for the petitioner, who is a Sri Lankan Judge.On the aspect of filing a writ or resorting to a civil suit, he referred to the Supreme Court's Puttaswamy judgment and submitted that enforcing Article 21 right against a private actor becomes non-viable, and the only remedy is a civil remedy, like a tort for invasion of privacy.Kulkarni submitted that in the Puttaswamy judgment, the Supreme Court has referred to the Sree Krishna Committee report, which says that such a right cannot be enforced against private actors."The reach of Article 21 is restricted to the territory of India when read in conjunction with Article 13(3)(a) which deals with the definition of 'law'. Article 19 is similarly applicable only to citizens. And this is not even a state action impugned by the petitioner...," the counsel said. Referring to a US judgment on extra-territorial jurisdiction, Kulkarni submitted that for a person who is not a country's national but claims rights within the country, he must have developed sufficient connection with the national community to be considered a part of that community."Merely because he happens to come to a part of the country occasionally, he can't avail such a right...Our preamble is even more explicit. (It says), 'We are giving ourselves this constitution', not to anyone else," Kulkarni said.He further submitted that Google operates in multiple countries as a private actor and that there could be an instance wherein a hostile country may want Google to act upon information shared by another country. Thus, Kulkarni said, as per accepted principles of Public International Law, Indian law shouldn't extend beyond its territory to other nationals. "To bring a civil suit for defamation, one does not have to show it is codified elsewhere. It's a part of common law. But no writ petition would lie…A similar defamation suit against a private party masquerading as a writ petition (was) before Delhi High Court (Banyan Tree Holdings v. Murali Krishna Reddy 2009)..Without much argument, Delhi High Court rejects the writ petition. If Indian citizens can't knock the doors of this court in similar matters, how would a foreign national residing in Sri Lanka can enforce such a right?," Kulkarni said.In the afternoon session advocate Prabhakaran appearing for Justice AHMD Nawaz, submitted that Article 253 of the Constitution, read in conjunction with the South Asian Association for Regional Cooperation (SAARC) Convention, would require the writ court to act upon the...

Only Citizens, Foreigners Residing In India Can Invoke A.21: Google Tells Karnataka High Court In Sri Lankan Judge's Plea Against Online Content

Sebin James

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