Right to be Forgotten in India

The contentious “right to be forgotten” has once again found itself at the forefront of jurisprudence in India. In July 2021, Ashutosh Kaushik, an Indian reality TV celebrity, petitioned the Delhi High Court, seeking that his drunk driving videos that date back to 2009 be deindexed and removed from online platforms.

The right to be forgotten, which was first called out in the European Union’s Court of Justice’s 2014 decision Google v. Spain, and later codified in the EU”s GDPR, has since also been recognized in India through a series of judicial pronouncements.

Soon after the CJEU’s 2014 decision, Gujarat’s High Court, which is the apex court within the state, dealt with a case in 2015 where the petitioner sought the removal of accusations of kidnapping and murder. In this instance, the court refused to grant the right to be forgotten.

However, in January 2017, the Karnataka High Court recognized the right to be forgotten for women in highly sensitive cases such as “rape or the ones affecting the modesty of reputation of the persons concerned”. In its judgment, the Court noted that this would be “in line with the trend in western countries where they follow this as a matter of rule”. However, this case dealt more with the anonymity of female petitioners and respondents than with the principles of the right to be forgotten.

A concrete foundation for recognizing the right to be forgotten was laid out in the September 2018 landmark judgment of Puttaswamy v Union of India. While recognizing the Right to Privacy as a fundamental right in its judgment, Supreme Court, India’s highest judicial authority, noted that “Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognizes the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy”.

In April 2021, the Delhi High Court granted an interim right to be forgotten to an American citizen of Indian origin who was being unable to find employment in the USA due to an old case that potential employers would find on the internet while carrying out background checks. This is also the case that Ashutosh Kaushik heavily relied on in his petition to the Delhi High Court.

Even with this substantial history of judicial pronouncements just within the last few years, the right to be forgotten remains to be carved into Indian Laws. The latest draft of India’s Personal Data Protection Bill of 2019 mentions that a request for the right to be forgotten can be made to an ‘adjudicating officer’ who will be appointed by the government of India. This provision and many others of the bill have been met with substantial resistance by civil society because of the bill’s overbroad drafting and lack of procedural safeguards.

Along with India, various other countries such as the USA and Russia are grappling with similar issues, albeit with different pressures, and seeking balance in different places. Ultimately, whether countries choose to incorporate this right within their unique corpus of laws and more may be a balancing act between the right to privacy and the right to free speech for their citizens.

About the Author: Shreya is an Employee Fellow at the Berkman Klein Center, where she works on the Lumen Project. She is a passionate digital rights activist and uses her research and writing to raise awareness about how digital rights are human rights. She tweets at @shreyatewari96