Introduction
Recently the Delhi High Court directs Google and Indian Kanoon to remove the access of a judgment from their portals. The court delivers this judgment on the basis of the principle “Right to be forgotten”. In the recent case “Jorawar Singh Munday vs UOI (2021); an American moves to the court under Article 226 for seeking removal of his acquittal judgment filed under the NDPS act. The petitioner claims that; the existence of this judgment on the website causing irreparable loss and injury to his reputation and social life.
This principle is well recognized worldwide but; Indian courts have not had occasions to deal with the same. This judgment is the beginning of the Indian courts to exercise the power to use this principle.
Right to be forgotten in India
At present in India, the data protection regime doesn’t this principle or right. But there is a compelling argument that it is part of Article 21 of the Indian constitution. This argument came from the interpretation of the judgment of “Justice K.S. Puttaswamy”. This judgment declared the right to privacy as part of the fundamental right to life and personal liberty.
Before this landmark judgment, Indian courts have considered various variations of this principle of RTBF in various cases. In 1994 in the case of “Raja Gopal vs the State of Tamilnadu” the SC first time recognized the right to privacy of prisoners. In the case of “State of Karnataka vs Putta Raja (2003)” the SC held that, the obscurity can help in the protection of victim of sexual offences from social ostracism. The Karnataka high court in 2017, recognized this principle in cases sensitive cases of women and cases of rape or affecting the modesty of women.
International Jurisprudence of RTBF
In U.K the ‘Rehabilitation of Offenders Act’ and ‘Spent Conviction Scheme’ limit the disclosure of certain offences after a certain period of time that is known as “Spent Time”. This right has taken a large shape in 1995 from the “Directives of the European Union”. It deals with the protection of the personal data of individuals and the free movement of the same. The case of ‘Google Spain SL and Google Inc. vs Agencia Espanola de proteccion de Datos and Mario Costeja Gonzalez (2014) reaffirmed the right of RTBF. The right to be forgotten was subsequently established in European Union ‘General Data Protection Regulations 2016’ (GDPR).
GC, AF, BH, ED vs CNIL 2019, the court tried to make a balance between the right to privacy of data and the right to know of the public.
Indian Data Protection Bill
India is very late to introduce the bill on internet privacy. The Personal Data Protection Bill was introduced in 2019 in Lok Sabha. This bill is different from the GDPR on grounds that; the GDPR allows the permanent erasure of the data (1) where the data is no longer needed for its original processing purpose (2) when the consent is withdrawn (3) when there are no legitimate grounds for the processing; while the Personal Data Protection Bill allows only on the first ground.
Under this Bill the data principal has to apply directly to the Adjudicating officer; not the data fiduciary and a third party can seek review against the order of disclosure. RTBF is not an unconditional right. The data principal has to prove that the interest of restricting the disclosure of data overrides the right of freedom of speech and expression and right to information.
Conclusion
The countries like United Kingdom and, Australia and other members of European Union strongly in favour of RTBF. Now it is high time for India to recognize this right to be forgotten. If the parliament passes this Bill of PDP in its original form the power of the adjudicating officer should be exercised carefully.
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