{1.1} What is right to be forgotten?

This right gives the right to have your information that is publicly available to people at large
get removed from different sources such as accessed online, engines, libraries, blogs, or any
other public platform, once the personal data in dispute is no longer required or relevant. This
right has been recognised by the European Union under the General Data Protection
Regulation as a statutory right and has also been upheld by various EU and English courts.

Today, the world is plainly under the grasps of social media. The foundation of an individual
is evaluated on the anvil of his/her presence at the virtual world. Google has become
synonymous to “search” and it is perhaps the virtual world that decides the credibility of an
individual or an institution alike.
 
The unparalleled growth of information and technology had made us privy to the most
intricate details of human lives – both good and bad. The boundaries of privacy are blurring
more than ever. We enjoy the latest controversies with a cup of tea but have we ever thought
what would things be like if we were placed in their shoes? Think of the most embarrassing
thing you have ever done, now conjure a reality where everybody in the world knows about
it, it is tough, right1?
The personal information of an individual at this point not confined to just papers, official
and government records. It can now be easily assessed by an individual from anywhere
around the world through web or search engines. This incomparable change in both the
nature and the expanse of personal information accessible online is an underlining issue. An
individual need not be grounded or an overachiever to be in the list items of Google or any
other search engine for that matter.

Tejashree J, The Need for the Right to be Forgotten in India, RGNUL Financial and

Mercantile Law Review,

Vol. 5, p. 106 - 112 (2018)
In light of the realities of our current digital world, it is important to remember that
not
everything on the internet is desirable, especially for the people who are the source
of
inspiration of that content. Any content can infiltrate borders and be viewed by an
unbelievable
wide audience because of the Internet's far-reaching influence. This gave birth to a brand-
new
concept: The Right to Be Forgotten. This right has far-reaching implications for hotly
disputed
and discussed Internet policies including freedom of expression and online privacy.
These

1
The Evolution of Right to be Forgotten in India, Sanjay Vashishtha, 2022 SCC OnLine Blog Exp 7,

https://www.scconline.com/blog/post/2022/01/27/the-evolution-of-right-to-be-forgotten-in-india/
concepts of privacy, as well as freedom of speech also includes the ability to choose
and
determine the content's existence. As a result, if citizens' right to be forgotten is recognised
and
granted, you can request the removal of specific web sites from search engine results, as well
as the erasure of personal data that you do not want to appear on search engines
In light of the realities of our current digital world, it is important to remember that
not
everything on the internet is desirable, especially for the people who are the source
of
inspiration of that content. Any content can infiltrate borders and be viewed by an
unbelievable
wide audience because of the Internet's far-reaching influence. This gave birth to a brand-
new
concept: The Right to Be Forgotten. This right has far-reaching implications for hotly
disputed
and discussed Internet policies including freedom of expression and online privacy.
These
concepts of privacy, as well as freedom of speech also includes the ability to choose
and
determine the content's existence. As a result, if citizens' right to be forgotten is recognised
and
granted, you can request the removal of specific web sites from search engine results, as well
as the erasure of personal data that you do not want to appear on search engines
“In light of the realities of our current digital world, it is important to remember that not
everything on the internet is desirable, especially for the people who are the source of
inspiration of that content. Any content can infiltrate borders and be viewed by an
unbelievable wide audience because of the Internet's far-reaching influence. This gave birth
to a brand-new concept: The Right to Be Forgotten. This right has far-reaching implications
for hotly disputed and discussed Internet policies including freedom of expression and online
privacy. These concepts of privacy, as well as freedom of speech also includes the ability to
choose and determine the contents existence. As a result, if citizens' right to be forgotten is
recognised and granted, you can request the removal of specific web sites from search engine
results, as well as the erasure of personal data that you do not want to appear on search
engines”2

“Digital footprints on the web are used to create algorithms to study behavioural patterns and
automate human responses. At times like these, an individual can only have a small degree of
control over personal information. Besides, the right to be forgotten entails a delicate balance
between one’s right to privacy and the right to information in the larger public interest or for
the State’s legitimate needs”3.

2
Waiting for Legislative Assent on the Right to Be Forgotten,
https://www.legalserviceindia.com/legal/article-5974-waiting-for-legislative-assent-on-the-right-to-
be-forgotten.html

3
More power to the right to be forgotten, Jul 23, 2022 07:39 AM IST,https://www.hindustantimes.com/india-

news/more-power-to-the-right-to-be-forgotten-101658509282031.html
Today, at this point it is not simple to get away from one’s past when one’s personal
information can be easily circulated around the web or stay on the internet endlessly,
accessible through speedy search results. For people who wish to start afresh, the right to be
forgotten remains essentially important and all the more necessary given the expand of our
digital footprint. The essential query that encompasses the commencement and nature of the
right to be forgotten is: would it be a good idea for us to reserve the right to be forgotten?
{1.2} Evolution and judicial value of Right to be forgotten

In 1998, Mario Costeja González, a Spaniard, had run into financial difficulties and was in
severe need of funds. As a result, he advertised a property for auction in the newspaper, and
the advertisement ended up on the internet by chance. Mr Gonzáles, unfortunately, was not
forgotten by the internet. As a result, news about the sale was searchable on Google long after
he had fixed his financial issue, and everyone looking him up assumed he was bankrupt.
Understandably, this resulted in severe damage to his reputation, prompting him to take up
the matter to the court. Ultimately, this case gave birth to the concept of the “right to be
forgotten”.
The European Court of Justice ruled against the search engine giant Google, declaring that
under certain circumstances, European Union residents could have personal information
removed or deleted from search results and public records databases.
 
However, in 2019 the EU Court restricted the ruling only to the European Union, saying
Google does not have to apply the “right to be forgotten outside Europe”.
 
The concept of the right to be forgotten, also known as the right to erasure, is that individuals
have a civil right to have their personal information removed from the internet. Likewise, a
traceable procedure must be in place to ensure that removed data is also erased from backup
storage media.
 
India, at present does not have any statutory provision that provides for right to be forgotten
(RTBF). The Indian security system has seen an alternate wave with the presentation of the
new Personal Data Protection Bill (PDP Bill)[2] in 2018. The Bill envisages many changes
with respect to data handling and security privileges of an individual.
 
However, the Bill guises to fetch in the right to be forgotten which is not accessible in the
current legitimate system under the Information Technology Act, 2000 and Information
Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or
Information) Rules, 2011.
 
In simple terms, the “right to be forgotten” is the right to have publicly available personal
information removed from the internet, search, databases, websites or any other public
platforms, once the personal information in question is no longer necessary, or relevant.
 
However, there is an intricate system envisaged under the Section 20 of PDP Bill for setting
off the right to be forgotten. The Bill articulates that the right can be sanctioned only on the
order of an adjudicating officer after an application recorded by the data principal. Whereas,
the choice on whether the right to be forgotten can be granted with respect to any information
will rely upon “the right to the right to freedom of speech and expression and the right to
information of some other citizen”.
 
Keeping in view the laws of other countries, the European Union’s (EU) General Data
Protection Regulation (GDPR) permit individuals to have their personal data erased, but the
authorities noted that “organisations do not always have to do it”.
 
The GDPR provisions read like a master for the Indian PDP Bill and it further expresses that
an individual can look for the eradication of their information when “there are serious
inaccuracies in the data or they believe information is being retained unnecessarily, they no
longer consent to processing”.

In Justice K.S. Puttaswamy (Retd.) and Anr. vs Union of India 4 the Supreme Court held that
the Right to Privacy is a fundamental right and it will be included in the Right to Life
enshrined under Article 21 of the Constitution. The Supreme Court observed that: the right of
an individual to exercise control over his personal data and to be able to control his/her own
life would also encompass his right to control his existence on the Internet.

In Zulfiqar Ahman Khan v. M/S Quintillion Business Media Pvt. Ltd. And others 5, Zulfiqar
Ahman Khan demanded for the removal of articles written against him in news website The
Quint. The Delhi High Court observed the Right to be Forgotten and the right to be left
alone as an integral part of individual's existence.

The Right to be Forgotten in India is handled by the Personal Data Protection Bill.2019 (PDP

Bill) The Right to be forgotten does not yet have formal approval in India. Nonetheless, the
Supreme Court ruled in the Justice K.S.Puttaswamy(Retd) v. Union of India 6, 2018 that the
right to security is a fundamental right.
The Supreme Court declared the right to privacy a fundamental right in a landmark judgment
in 2017. “The right to security is maintained as an intrinsic element of the right to life and
individual freedom under Article 21 and as a portion of the opportunities guaranteed by Part
III of the Constitution,” the Court stated at the time.

When the legal administration enters Phase III of its major e-courts project, privileges such as
the Right to be forgotten should be inscribed into any innovative arrangement generated for
legal information storage and the board.

With a more profound combination of innovation and information digitisation, a simple

Google search may provide a wealth of information about a person, potentially jeopardising
an individual’s status and nobility as guaranteed by Article 21 of the Indian Constitution.

4
2017 10 SCC 1
5
2019 SCC OnLine Del 8494
6
2017 10 SCC 1
Many high courts have now expressly recognised the right to be forgotten in their judgments,
following international law on the subject.

“Most importantly, justice Kaul ruled that the right of an individual to exercise control over
personal data and to be able to control life would also encompass the right to control his or
her existence on the Internet. “Humans forget, but the Internet does not forget and does not
let humans forget... People are not static. They change and grow throughout their lives. They
evolve. They make mistakes. But they are entitled to reinvent themselves and reform and
correct their mistakes,” noted the judge.
Justice Kaul, thus, acknowledged the right to be forgotten as a facet of the right to privacy —
this right, however, would be weighed against other fundamental rights and larger public
interests. His judgment has since come handy for petitioners before several constitutional
courts while seeking removal of information about them from the Internet in exercise of their
right to be forgotten”7.

Jorawer Singh Mundy v Union of India8 An American citizen, namely Jorwar Singh
Mundy, sought to overturn the Delhi High Court’s verdict in a Narcotic Drugs and
Psychotropic Substances Act, 1985 (NDPS Act) body of evidence against him, in which he
was cleared of all charges. He claimed that the judgement’s internet accessibility constituted
a blemish on his reputation. According to the Delhi High Court, the Right to be forgotten
allows persons to have data, recordings, or images about themselves removed from specified
web records so that web indexes cannot locate them. It was also mentioned that this freedom
allows an individual to silence earlier events in his life.

 Name Redacted v. The Registrar General9 The Karnataka High Court upheld the Right to
be forgotten while also recognising that this would be consistent with the practice in western
countries where this is a regulation. In delicate instances, such as assault or impacting the
humility and infamy of the individual concerned, the right to be forgotten should be
preserved.

Karthick Theodore v. Madras High Court10 The Madras High Court held in the case that
an accused individual is entitled to have their name deleted from rulings or decrees,
particularly those that are visible in the public domain and accessible through web search
tools. In reaching its decision, the Court noted that it is the Court’s responsibility to protect
people’s rights to privacy and reputation until the Data Protection Act is approved by the
legislative body. It went on to say that when the council approves the Data Protection
Regime, it should include an objective approach for dealing with requests for the suppression
of names of those who have been accused of crimes but have been found not guilty.

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More power to the right to be forgotten, Jul 23, 2022 07:39 AM IST,https://www.hindustantimes.com/india-
news/more-power-to-the-right-to-be-forgotten-101658509282031.html
8
W.P. (C) 3918/ 2020 & CM APPL. 11767/ 2021
9
2017 SCC. OnLine Kar 424
10
2021 SCC OnLine Mad 2755
In V. v. High Court of Karnataka11, the Karnataka High Court recognised right to be
forgotten. The purpose of this case was to remove the name of the petitioner’s daughter from
the cause title since it was easily accessible and defame her reputation. The court held in
favour of the petitioner and ordered that the name of the petitioner’s daughter to be removed
from the cause title and the orders. The court held that “this would be consistent with the
trend in western countries, where the ‘right to be forgotten’ is applied as a rule in sensitive
cases concerning women in general, as well as particularly sensitive cases involving rape or
harming the modesty and reputation of the individual concerned”.

 
Noticeably, the right to be forgotten has now been perceived as a basic face of the right to
privacy.
The Supreme Court had stated that the right to be forgotten was subject to certain restrictions,
and that it could not be used if the material in question was required for the—
1. exercise of the right to freedom of expression and information;
2. fulfilment of legal responsibilities;
3. execution of a duty in the public interest or public health;
4. protection of information in the public interest;
5. for the purpose of scientific or historical study, or for statistical purposes; or
6. the establishment, executing, or defending of legal claims.

{1.3} Right to be forgotten in respect of Criminal Identification Act, 2022

The Criminal Identification Act, 2022 has infringed citizens’ fundamental rights by granting
the State broad powers to store prisoner records and conduct physical and biological tests
with the implied force of law, which is contrary to the rule of law and arbitrary in character.
People do not lose their humanity while they are imprisoned.
The Supreme Court of India, as well as many other Indian courts, have reaffirmed this
position in a number of cases to ensure that prisoners do not become victims. Since then, the
legislature has been unable to qualify the intangible differentia and rational connection tests.
As a result, it is a blatant infringement of the citizen’s fundamental rights stated in Sections
14, 19, 20(3), and 21 of the Constitution of India12.

The Act permits the collection of certain identifiable information about individuals for the
investigation of crime.  The information specified under the Bill forms part of the personal
data of individuals and is thus protected under the right to privacy of individuals.  The right to
privacy has been recognised as a fundamental right by the Supreme Court (2017).[6]  The
Court laid out principles that should govern any law that restricts this right.   These include a
public purpose, a rational nexus of the law with such purpose, and that this is the least
11
2017 SCC OnLine Kar 424
12
The criminal Procedure Identification Bill (2022), Ministry Of home Affairs,
https://prsindia.org/billtrack/the-criminal-procedure-identification-bill-2022
intrusive way to achieve the purpose.  That is, the infringement of privacy must be necessary
for and proportionate to that purpose.  The Bill may fail this test on several parameters.  It
may also fail Article 1413 requirements of a law to be fair and reasonable, and for equality
under the law. 

The issue arises due to the fact that: (a) data can be collected not just from convicted persons
but also from persons arrested for any offence and from any other person to aid an
investigation; (b) the data collected does not need to have any relationship with evidence
required for the case; (c) the data is stored in a central database which can be accessed widely
and not just in the case file; (d) the data is stored for 75 years (effectively, for life); and (e)
safeguards have been diluted by lowering the level of the official authorised to collect the
data

Clause 4(2) The Bill allows retaining the data for 75 years.  The data would be deleted only
on the final acquittal or discharge of a person arrested for an offence.  The retention of data in
a central database and its potential use for the investigation of offences in the future may also
not meet the necessity and proportionality standards which is a clear infringement of the right
to be forgotten, as recognised by the Supreme Court in S. Puttaswamy v. Union of India14

It includes preventive detainees as a category of the person whose measurements could be

taken under the provisions of this Act. Importantly, Section 3 has a safeguard appended to
it – it excuses any person convicted, arrested or detained in relation to any offence
punishable under any law, except offence against a woman and a child, from mandatorily
giving their measurements. It is at the discretion of the offender of such crime to provide
measurements 15.

However, this proviso is said to be crudely drafted and, thus, prone to misuse for two
reasons. Firstly, it uses the word ‘may’ and not ‘shall’; therefore, it alludes to the
discretion given to the officer that he may compel a person to give his measurement.
Secondly, the proviso only provides that the person might not be obliged to give his
‘biological samples’, which effectively means that the proviso only extends its operation in
the case of extraction of biological samples and no other measurements mentioned in this
Act; hence, measurements other than biological samples could still be taken forcibly.

13
The Constitution of Himal, 1950
14
2017 10 SCC 1

15
Vulnerable to Misuse by Police, the New Criminal Identification Act Can Create a Surveillance State,
30/AUG/2022, https://thewire.in/rights/criminal-identification-act-surveillance
Section 5 of the Act sanctions powers upon the magistrate, judicial or executive, to direct
any person to provide his or her measurements if he is satisfied that it is expedient to do so
for the purpose of prevention, investigation or identification of the crime.

According to Section 6(2), if the person so directed refuses to comply with such order of
the magistrate, then penal provisions under Section 186 of the Indian Penal
Code (obstructing public servant in discharge of public functions) could be attracted. It has
been argued that Section 5, read with Section 3, has a neutralising effect on the proviso
appended to the latter. The people who were given immunity to excuse themselves of not
giving biological samples under Section 3 of the new Act could be compelled by a
magistrate under Section 5 to do so, rendering the safeguard provided in the former
Section a nullity.

This Act is an example of the expansion of powers to give a tough hand to law
enforcement agencies for the identification and prosecution of crime. However, in a
democracy, expansion of power must be accompanied by augmentation of safeguards for
protecting the rights of the citizens.

This Act sought to include ‘biological samples’ in the definition of measurements. At the
same time, it is unclear whether it includes DNA, polygraph test, narco-analysis, etc.,
which, until now, could not be extracted from a person without his consent and free will.
However, under the provisions (Sections 5 and 6, specifically) of this Act, a person may
now be compelled to provide such measurements to law enforcement agencies.

The refusal to give the same will attract penal provisions against the accused. Such
forcible seizure of a person’s sensitive data amounts to ‘testimonial compulsion’, which is
in violation of a person’s fundamental right against self-incrimination under Article 20(3)
of the constitution.

Apart from the Act’s upfront challenge to Article 20(3) of the constitution, it could also
emerge as a threat to a person’s freedom of speech and expression under Article 19(1)
(a) of the constitution. Since this Act gives vast powers to law enforcement agencies
without providing adequate safeguards, it has a reasonable potential to be misused to
suppress the voice of dissent against the government.

This effectively means that even the slightest inconvenience caused to the government via
acts of non-violent protest or through any forms of dissent by various individuals or
organisations like trade unionists, social activists, government critics, etc., could attract the
wrath of provisions of this Act.

Despite being aware of the prevalence of custodial violence in the country, the Act, in
practice, would allow police officers of lower ranks to brazenly use their coercive powers
without adequate safeguards being provided to the alleged offenders.
It generates apprehension of misuse of powers by the authorities coupled with the fact that
even a person engaged in trivial crimes could now be forced to provide its measurements.
This contradicts Article 21 of the constitution, which is enshrined for protecting the
person’s bodily integrity and dignity.

By mandating forcible seizure of measurements of a person, this Act goes against the
essence of this shield provided by the constitution and hence falls foul of a person’s right
to privacy, which is an inherent part of Article 21 of the constitution as declaimed in
the Puttaswamy judgement.