AUTHOR: Nancy B. Nirmal, Second-Year BA LLB Student, Shree L.R. Tiwari College of Law
Abstract
The internet’s permanent memory has transformed old mistakes, dismissed accusations, and resolved
disputes into lasting digital anchors that can follow a person indefinitely. This article examines the
Right to Be Forgotten (RTBF) as it has developed globally and in India, tracing its constitutional
foundation in the right to privacy under Article 21 and its collision with the freedom of speech and
open justice guaranteed under Article 19(1)(a). Drawing on the Supreme Court’s decision in Justice
K.S. Puttaswamy (Retd.) v. Union of India and the Delhi High Court’s ruling in Laksh Vir Singh Yadav
v. Union of India, the article outlines the proportionality-based balancing test Indian courts apply, the
categories of cases in which relief is granted or denied, and the practical and technical limitations, such
as the “whack-a-mole” problem of cross-platform re-publication, that constrain enforcement. The
article concludes that de-indexing rather than wholesale deletion offers the most workable middle path
between individual dignity and democratic transparency.
Introduction:The Problem of Permanent Digital Memory
Imagine making a mistake in college, being falsely accused of something minor, or being involved in
a legal dispute that gets reported on local news websites. Decades ago, that information would
eventually fade away, sitting quietly in dusty court files or old library archives that nobody ever
revisited. People could move on, find jobs, marry, and rebuild their lives without their past mistakes
constantly resurfacing.
Today, however, the internet remembers everything. We live in an era of digital permanence, where a
quick search can pull up old records, news articles, and court cases instantly. For many people, this
means a resolved legal matter or a dismissed accusation feels like a life sentence written in digital ink,
as employers, landlords, and strangers can dig up their past with a single click.
This raises a high-stakes legal question that courts and scholars worldwide are grappling with: do
people have the right to wipe their digital footprints clean, or does the public retain an absolute right
to know? This conflict lies at the heart of the Right to Be Forgotten (“RTBF”). This article examines
what this right means, how it evolved, how Indian courts are shaping it, and why it creates such a
significant tension with freedom of speech.
Part I: What Exactly is the Right to Be Forgotten?
At its core, the Right to Be Forgotten allows a person to ask search engines, websites, or digital legal
databases to remove, hide, or de-index old information about them so that it stops appearing in
everyday search results. Importantly, this right is not about rewriting history or deleting official
government records; it is about informational control and human dignity.
The concept rests on a few foundational ideas:
● Rehabilitation: people change, and someone who has served a sentence, won an acquittal, or
resolved a private dispute deserves a fair chance to reintegrate into society.
● Proportionality: information that was legal and true when published need not remain publicly
broadcast forever, particularly once it no longer serves any public interest.
● Privacy as liberty: genuine personal freedom includes the ability to manage one’s own identity
without being permanently defined by a single, isolated past event.
Europe took the earliest formal step toward this right. In the landmark Google Spain case (2014), the
European Court of Justice held that individuals may ask search engines to remove links containing
personal data that are inadequate, irrelevant, or no longer necessary.1 This principle was later codified
under Article 17 of the General Data Protection Regulation (“GDPR”), giving European citizens a
statutory tool to request data erasure.
Part II: The Indian Legal Framework — How Courts Are Shaping the Right
Unlike Europe, India does not have a single, comprehensive statute laying out a detailed Right to Be
Forgotten procedure for every category of public record. Indian courts, however, have progressively
stepped in to fill this gap through a living constitutional framework.
1. The Constitutional Anchor: Article 21
The Right to Be Forgotten finds its fundamental constitutional footing in Indian jurisprudence
through the landmark Supreme Court decision in Justice K.S. Puttaswamy (Retd.) v. Union of India
(2017), where a nine-judge bench unanimously recognised the Right to Privacy as a fundamental right under Article 21 of the Constitution, explicitly incorporating informational privacy as an essential
dimension of personal liberty. This ruling provided the constitutional bedrock upon which lower
courts and High Courts subsequently built the Right to Be Forgotten.
2.Legislative Context
While India passed the Digital Personal Data Protection Act, 2023, its primary focus is on corporate data processing, consent, and erasure requests directed at data fiduciaries. It does not fully address the complex questions raised by public court judgments, police records, and archived news media. Because of this legislative gap, the courts have become the primary forum in which individuals seek relief.
3. Judicial Activism in the High Courts
Over the last few years, individuals — particularly those acquitted of criminal charges, those whose
FIRs were quashed, or those involved in private matrimonial disputes — have approached various
High Courts seeking to have their names masked or redacted from online judgments.
Building upon the Puttaswamy foundation, the Delhi High Court in Laksh Vir Singh Yadav v. Union
of India delivered a comprehensive ruling addressing whether informational privacy justifies the de-
indexing, delinking, or masking of judicial records. The court affirmed that the right to be forgotten is an inherent part of Article 21, and established a structured proportionality test to balance individual
rehabilitation against the open justice principle. Under this framework, relief is evaluated according to
the nature of the information, whether the underlying proceedings ended in acquittal, quashing, or
private settlement, and whether the public interest overrides personal dignity.
Indian courts remain careful in applying this relief: they generally do not delete the underlying
judgment from official judiciary portals, since the judicial system must remain transparent. Instead,
they direct search engines and online legal platforms to de-index or mask the individual’s name so that
a casual search does not surface the old case details.
Part III: The Great Clash — Privacy vs. Freedom of Speech
If the Right to Be Forgotten sounds like a straightforward way to protect ordinary people, it is worth
asking why the right is so heavily debated. The reason is that it directly collides with two central pillars
of any democratic society: freedom of speech and open justice.
1. Freedom of Speech and Expression
Article 19(1)(a) of the Constitution guarantees freedom of speech and expression, which includes
freedom of the press Journalism, investigative reporting, and public commentary rely heavily on the
ability to archive and share past events. If individuals could easily erase unfavourable news stories or
legal troubles merely by invoking privacy, it would create a dangerous loophole: powerful politicians,
corrupt business figures, and fraudsters could use the Right to Be Forgotten to sanitise their pasts and
evade accountability.
2. The Principle of Open Justice
Courts in a democracy do not operate behind closed doors. The open justice principle requires that
legal proceedings be conducted publicly and that judgments remain accessible. Transparency ensures
that the judiciary remains accountable, builds public trust, and allows lawyers and students to study
legal precedent. Unchecked, widespread deletion of court records would fragment legal history and
weaken institutional transparency.
Part IV: Where Do Courts Draw the Line?
The Balancing Test Because privacy under Article 21 and free speech under Article 19(1)(a) pull in opposite directions, Indian courts apply a careful, fact-specific balancing test rather than a blanket rule. The scales generally tip as follows:
When Privacy Wins (Relief Is Granted)
● The person was completely acquitted of criminal charges, or their FIR was quashed by a
competent court.
● The case involves private civil disputes, family law, or matrimonial disagreements where public
scrutiny offers little societal value.
● The continued online availability of the information causes severe, disproportionate, and
irreversible damage to an ordinary person’s livelihood and social standing without serving any
public good.
When Public Interest Wins (Relief Is Denied)
● The case involves heinous crimes, corruption, economic offences against the public, or crimes
against women and children.
● The individual is a public figure, politician, or holder of public trust, whose background and
conduct remain subject to legitimate, continuous scrutiny.
● The information is essential for historical, statistical, or scientific research.
Part V: Practical and Technical Realities of the Law
Beyond what courts write on paper, it is important to examine how technology functions in practice.
Enforcing the Right to Be Forgotten is surprisingly difficult: The “whack-a-mole” problem: if a High Court orders a search engine to de-index a specific article about an individual, the link may disappear from search results within that jurisdiction, yet the article can still exist on alternative search engines, internet archives, cached pages, or foreign mirror sites, making complete digital erasure nearly impossible.
Algorithmic behaviour: search engines rely on algorithms that prioritise engagement, so even where a
specific judgment is hidden, related algorithmic suggestions can lead users back to the shadow of an
old accusation.
Accessibility for ordinary citizens: obtaining a de-indexing order currently requires engaging counsel
and filing a writ petition before a High Court, a process that is expensive and time-consuming,
meaning that only those with financial resources can effectively exercise this right.
Conclusion: Finding the Middle Ground in a Digital World
The internet is one of humanity’s great achievements, but its permanent, unforgetting memory has
created a distinct social challenge. A single mistake, a dismissed charge, or a private dispute should not
become a permanent digital anchor that follows a person for life.
The Right to Be Forgotten is not about rewriting history or allowing wrongdoers to escape
accountability. It is a nuanced legal tool designed to protect human dignity, support rehabilitation, and
give ordinary people a fair chance at a fresh start. The path forward lies in mastering this balance: by
favouring de-indexing over total deletion, and by developing clearer, more accessible judicial
guidelines, the legal system can protect personal dignity without compromising the transparency that
a democracy depends on.
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