Right To Be Forgotten In India - Balancing Privacy And Public Interest
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Category: General Law
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RIGHT TO BE FORGOTTEN IN INDIA: BALANCING
PRIVACY AND PUBLIC INTEREST
Aakansha Bhardwaj, Gujarat National Law University, Silvassa
ABSTRACT
The Right to be Forgotten (RTBF) is an emerging legal concept that has gained significant attention globally, particularly in the context of the availability of personal information on the Internet and privacy and data protection. In India, while the RTBF has yet to be explicitly codified in legislation, its contours have been indirectly recognized through judicial interpretations and proposed legal frameworks. This research article explores the scope and challenges associated with the implementation of the RTBF in India from both constitutional and legislative perspectives. The paper begins by examining the practical aspects of the Right to be Forgotten within society. It explores the causes and consequences of granting this right, as well as the extent to which it can effectively protect an individual's rights when implemented.
The RTBF in global legal systems, particularly in the “European Union” under the “General Data Protection Regulation” is compared to the Indian legal landscape. The analysis delves into the Indian Constitution, specifically focusing on the right to privacy as articulated under Article 21, following the landmark Puttaswamy judgment (2017), which laid the foundation for the RTBF in India. The research evaluates how this right is balanced against other fundamental rights, such as the right to freedom of speech and expression (Article 19(1)(a)), and public interest considerations. This research paper presents a legislative analysis of the Personal Data Protection Act, 2023, with a specific focus on the treatment of the Right to Be Forgotten (RTBF).
The paper argues for the formulation of a balanced legal framework that upholds individual privacy without undermining public interest, transparency, and accountability. Emphasis is placed on the necessity of clear legislative provisions, consistent judicial interpretation, and robust regulatory mechanisms. The study concludes with recommendations including the development of procedural guidelines and legislative amendments to ensure that the RTBF is harmonized with India’s constitutional values and democratic ethos.
“Ordering the removal of a judgement is an extreme step that goes against the universal right to information”1 - Chief Justice D. Y. Chandrachud Introduction In the rapidly evolving digital age, the intersection of technology and privacy has become a critical concern, as individuals struggle to safeguard their personal information amidst rising cyber threats and data exploitation. making the "Right to be Forgotten" an essential legal tool for protecting personal information and reclaiming control over one's digital footprint. The "Right to be Forgotten" (RTBF) has emerged as a crucial aspect of data protection and privacy law in the digital age. Originating in the “European Union2” through the “General Data Protection Regulation” (GDPR3), this right empowers individuals to request the removal of personal data from online platforms, thus protecting their privacy and dignity.
As India increasingly navigates the complexities of digital governance and data protection, the implementation of the RTBF poses unique legal and infrastructural challenges. This research article aims to critically analyze the scope and challenges of implementing the “Right to be Forgotten in India”, from both a constitutional and legislative perspective. While India's existing legal framework provides certain safeguards for privacy under Article 214 of the Constitution, the implementation of RTBF raises complex issues related to freedom of speech, the right to information, and data sovereignty. The adequacy of India's current digital infrastructure and judicial mechanisms to effectively enforce such a right remains uncertain.
Our approach will explore how the RTBF can be implemented in India, what upgrades are necessary in India's digital and legal systems, and what judicial reforms may be required. By examining constitutional provisions, legislative measures, and the global discourse around RTBF, we aim to offer a comprehensive understanding of the path forward for India in
1 Chief Justice D.Y. Chandrachud, Supreme Court to Decide: Can Right to Be Forgotten Beat Right to
Information, The Economic Times (Mar. 22, 2024, 10:21 AM), https://economictimes.indiatimes.com/news/india/supreme-court-to-decide-can-right-to-be-forgotten-beat-rightto-information/articleshow/112019237.cms (last visited Feb. 20, 2025). 2 “Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the Protection of Natural Persons with Regard to the Processing of Personal Data and on the Free Movement of Such Data” (General Data Protection Regulation), 2016 O.J. (L 119) 1 (EU). 3General Data Protection Regulation, art. 6, 2016 O.J. (L 119) 1 (EU), https://eur-lex.europa.eu/legalcontent/EN/TXT/HTML/?uri=OJ:L:2016:119 (last visited Feb. 22, 2025).
4 India Const. art. 21.
safeguarding individual privacy in the digital sphere. Right to Be Forgotten (RTBF) in India: Understanding the Constitutional Framework The Indian Constitution guarantees fundamental rights to its citizens, ensuring protection of life, liberty, and equality. These rights are the cornerstone of India’s democratic framework, with the judiciary tasked to uphold them. It provides a framework to protect individual rights, with the Right to Privacy under Article 215 being one of its pivotal aspects. This right was emphatically recognized in the landmark case of “Justice K. S. Puttaswamy v. Union of India (2017)6”, where the Supreme Court held “that privacy is intrinsic to life and personal liberty, forming the core of Article 21.
This judgment laid the groundwork for recognizing the Right to Be Forgotten (RTBF) as an extension of the right to privacy, particularly in the digital era where personal information can remain accessible indefinitely. ” RTBF and the Right to Privacy Under Article 21 Article 21 of the Indian Constitution guarantees the protection of life and personal liberty, and through judicial interpretation, it encompasses the Right to Privacy. The RTBF is an emerging legal concept that empowers individuals to request the removal of personal data from public platforms, especially when such data is outdated, irrelevant, or no longer in the public interest. This right becomes particularly significant in the digital age, where personal information, once made public, can persist online and continue to impact an individual's life long after it has lost its relevance.
In the Puttaswamy judgment, the Supreme Court “acknowledged the multifaceted nature of the right to privacy, including the right to control the dissemination of personal information”. The Court observed that “every individual should have the right to exercise control over his/her own life and image as portrayed to the world,” This decision marked a watershed moment in India’s privacy law, establishing the constitutional framework for data protection and personal autonomy. The Right to Privacy encompasses the right to control the dissemination of personal information and safeguard one’s identity from unnecessary public exposure.
5 India Const. art. 21.
6 ‘Justice K.S. Puttaswamy (Retd.) v. Union of India’, (2017) 10 S.C.C. 1 (India).
In “Zulfiqar Ahman Khan vs M/S Quintillion Business Media Pvt. Ltd. ”7, The petitioner requested the Delhi High Court to remove two articles published on an internet media platform about anonymous harassment claims made against him. The HC also prohibited any kind of republication of the articles throughout the trial procedures, concluding that the right to be forgotten and the right to be left alone are inherent parts of the right to privacy. On the other hand, in the case of “Dharamraj Bhanushankar Dave vs State of Gujarat” 20178, the Gujarat HC refused to take cognizance of the right to be forgotten. What are the conflicts with freedom of speech and expression, and how can Article 19 be balanced?
While the RTBF seeks to protect individual privacy, it often comes into conflict with the “Right to Freedom of Speech and Expression guaranteed” under Article 19(1)(a) of the Indian Constitution. Freedom of expression includes the right to access information, making it essential for a transparent and informed society. The unrestricted availability of certain personal information can infringe on an individual’s privacy, dignity, and reputation. This leads to the inevitable balancing act between the “Right to Privacy” and the “Right to Freedom of Expression”. Courts in India have been increasingly faced with situations where individuals seek the removal of information, claiming privacy violations, while others argue for the public’s right to know and access information.
For instance, removing information regarding a person’s past criminal record or public behavior may violate the principle of transparency, yet may be necessary to safeguard the individual's dignity or rehabilitation9. In resolving such conflicts, courts often adopt a case-by-case approach, weighing the public interest in accessing information against the individual’s right to privacy. Judicial scrutiny plays a key role in determining whether the removal of information from the public domain is justified and whether it restricts free speech in a democratic society. Indian Judiciary on RTBF: Legal Pronouncements Indian courts have begun to recognize the RTBF, though its scope remains under development.
7 Zulfiqar Ahman Khan v. M/S Quintillion Bus. Media Pvt. Ltd., (2019) (Del. HC) (India).
8 “Dharamraj Bhanushankar Dave v. State of Gujarat”, (2017) (Guj. HC) (India).
9AK
and Partners, Data Protection Obligations of Financial Service Providers in India, https://www.akandpartners.in/_files/ugd/077257_3a02df1c9ef44156b3612fb42d0cbfb6.pdf (last visited Feb. 26, 2025).
In the case of “Subhranshu Rout V. State of Odisha (2020)”10, the Orissa High Court acknowledged the RTBF, granting relief to a petitioner whose previous criminal record, though expunged, was accessible online and affecting his prospects for rehabilitation. The court held that such data should be removed from public access to protect the petitioner’s right to privacy and future well-being. Implementing the Right to Be Forgotten in India faces challenges such as legal ambiguity in defining outdated data, conflicts with freedom of speech and RTI laws, and the difficulty of determining public interest. Additionally, once data is published, it can be permanently shared, and platforms often find its removal costly and complex.
Despite these hurdles, implementation is necessary to protect individuals from reputational harm, wrongful accusations, and to ensure control over their digital footprints. It also aligns with global data protection standards, balances privacy with transparency, and strengthens individual autonomy in the evolving digital landscape. In another instance, the “Delhi High Court, in X v. Union of India” (2021)11, allowed an individual to request the removal of their name from a public judgment to protect their privacy and dignity, recognizing the evolving legal framework around RTBF. Similarly, the Karnataka High Court in “Vishal v. The Registrar General (2022)”12, acknowledged the importance of RTBF in a digital age, observing that certain outdated or irrelevant information could harm an individual’s reputation if left online.
While these cases signal the Indian judiciary's inclination towards recognizing RTBF, they also highlight the complexity of balancing privacy rights with freedom of expression and public interest. The recognition of the RTBF in India is a developing area of law, rooted in the broader understanding of the Right to Privacy. As courts increasingly confront cases related to privacy and online data, it becomes clear that a nuanced approach is required to balance individual privacy with the public’s right to information. Judicial intervention is crucial to ensure that the RTBF is not misused to suppress public discourse or erase legitimate information but is applied to protect individual rights in a fair and just manner.
10 Subhranshu Rout v. State of Odisha, (2020) 16 S.C.C. 685 (India).
11 W.P. (Crl.) No. 1082 of 2020 (India).
12 Criminal Appeal No. 207 of 2022, arising out of S.L.P. (Crl.) No. 8423 of 2019 (India).
Challenges to Implementing the “Right to Be Forgotten” (RTBF) in India Digital Infrastructure and Capacity India’s digital infrastructure presents a significant hurdle in the effective implementation of the “Right to Be Forgotten” (RTBF). The primary challenges are the lack of strong mechanisms for removing data from online platforms. This is particularly problematic given the extensive and sometimes unregulated presence of data on social media sites, news portals, and other digital platforms. The absence of a streamlined process for data erasure complicates the enforcement of RTBF, making it difficult for individuals to exercise this right fully. Many digital platforms that host personal data are headquartered outside India, placing them outside the direct jurisdiction of Indian laws.
This creates a gap in enforcement, as Indian authorities often face limitations in compelling foreign entities to comply with RTBF requests. This lack of data sovereignty hampers the ability to ensure that personal information is completely removed from all digital sources. Major challenge in India to implement right to be forgotten is that there is no awareness among citizens about digital privacy rights is another impediment. Many individuals are not fully informed about their rights to control personal data, including the right to have outdated or irrelevant information removed from public access. This lack of knowledge reduces the number of RTBF claims and limits public pressure on companies to develop and implement data removal mechanisms.
Judicial and Regulatory Hurdles The implementation of RTBF in India is further complicated by the absence of established judicial precedents and clear regulatory guidelines. Unlike the “European Union”, which has codified RTBF within its “General Data Protection Regulation” (GDPR)13, India lacks a specific legal framework that explicitly recognizes this right. Although some high-profile court cases have acknowledged RTBF, these instances are sporadic and do not provide a consistent legal standard.
13 “Regulation (EU) 2016/679 of the European Parliament and of the Council, General Data Protection
Regulation” (GDPR), 2016 O.J. (L 119) 1 (EU).
The limited capacity of Indian courts and administrative bodies to enforce RTBF also poses a significant challenge. The judiciary is often overburdened, leading to delays and inconsistent rulings on RTBF cases. Also, administrative bodies like the Data Protection Authority, envisaged under the “Personal Data Protection Act”, have yet to be fully operationalized, leaving a regulatory vacuum14. This lack of infrastructure makes it difficult to implement RTBF effectively, as there are no dedicated mechanisms to handle disputes and enforce decisions. Balancing Competing Interests Balancing the individual’s right to be forgotten (RTBF) with the public’s right to access information is a complex challenge, as it involves weighing privacy against fundamental rights like freedom of speech and the press.
For example, removing information about a person’s past could hinder public accountability, especially when the information is of public interest. Digital intermediaries like Google and Facebook play a key role in this balance, as they often handle RTBF requests. These platforms must assess whether an individual’s privacy outweighs the public's right to know, a task that places a significant burden on private entities, which may lack the necessary expertise or motivation for such decisions. Cultural and Ethical Concerns Cultural and ethical considerations further complicate the implementation of RTBF in India. There is a thin line between exercising the right to be forgotten and engaging in censorship.
For example, individuals with a history of criminal behavior may seek to use RTBF to erase their past wrongdoings from the public record, which could lead to ethical dilemmas around transparency and15 There is a risk that RTBF could be misused to suppress legitimate information, such as investigative journalism or critical opinions. This potential for abuse raises concerns about the impact of RTBF on democratic values like freedom of expression and the right to information. It is crucial to ensure that RTBF does not become a tool for concealing facts or evading scrutiny, especially when such information is relevant to public discourse. 14Arindrajit Basu & Justin Sherman, Key Global Takeaways from India's Revised Personal Data Protection Bill, Lawfare (Feb. 16, 2023), https://www. lawfaremedia. org/article/key-global-takeaways-indias-revised-personaldata-protection-bill (last visited Feb.
20, 2025) 15 Nishant Chand, The Right to Be Forgotten: A Comparative Analysis of India’s Emerging Framework and the EU’s GDPR, Chambers and Partners, https://chambers. com/articles/the-right-to-be-forgotten-a-comparativeanalysis-of-india-s-emerging-framework-and-the-eu-s-gdpr (last visited Feb. 28, 2025).
Policy Framework for Implementing the Right to be Forgotten in India (Public Interest Focused) The law should establish strong data protection frameworks that not only provide for RTBF but also incorporate checks and balances to prevent misuse. It should specify situations where RTBF cannot be applied, such as information relevant to public interest or when data is required for legal or journalistic purposes. This would help balance the right to privacy with the need to maintain transparency and accountability in society Judicial and Regulatory Recommendations One of the major hurdles in implementing RTBF in India is the lack of specialized mechanisms for adjudicating such cases. To address this, the establishment of a specialized tribunal or fasttrack courts dedicated to RTBF cases should be considered.
This would be similar to the role played by data protection authorities in the European Union (EU), which handle disputes related to data privacy and enforce compliance. A dedicated tribunal would ensure that cases are resolved quickly and efficiently, reducing the burden on general courts and ensuring specialized expertise in handling complex data privacy issues. Implementation Mechanism: The creation of a centralized regulatory body as similar to the EU’s Data Protection Authority, could oversee the enforcement of RTBF and other data privacy rights. This body could be empowered to issue guidelines, resolve disputes, and monitor compliance with RTBF requests. It could also play a role in educating stakeholders, including businesses and the public, about their rights and responsibilities under the data protection framework.
A designated authority, such as the Data Protection Authority (DPA) as envisaged under the
PDPA, will be responsible for overseeing the implementation of the RTBF. A. This authority will:
a) Adjudicate disputes between individuals and data controllers. b) Monitor compliance with the policy. c) Conduct public awareness campaigns.
B. Request Process
a) Individuals can submit RTBF requests to the data controller or the designated authority. b) Requests procedure will be specified by the authority on the procedure of providing details of the information to be removed and the reasons for the request. c) Data controllers must acknowledge receipt of requests and provide a response within a specified timeframe. d) If the data controller refuses the request, they must provide reasons for the refusal. C. Adjudication and Dispute Resolution:
a) The designated authority will establish a mechanism for adjudicating disputes between individuals and data controllers. b) Adjudication will be based on the principles of fairness, transparency, and proportionality. c) Individuals will have the right to appeal decisions of the designated authority to a higher appellate body.
D. Data Controller Obligations:
a) Data controllers must implement mechanisms for processing RTBF requests. b) They must conduct a thorough assessment of each request, considering the public interest and the individual's rights. c) They must maintain records of all RTBF requests and decisions. d) They must implement automated mechanisms where possible to aid in the removal of data. E. Search Engine and Platform Obligations:
a) Search engines will be required to delist specific URL's when ordered to by the
designated authority. b) Social media platforms will be required to remove specific content when ordered to by the designated authority. c) Platforms will be required to implement clear mechanisms for reporting and processing RTBF requests.
F. Public Interest Considerations:
a) The authority will scrutinize the importance of journalistic content in informing the public. RTBF requests related to journalistic content will be subject to heightened scrutiny, ensuring that they do not stifle legitimate reporting. b) The authority will scrutinize the importance of preserving historical records. RTBF requests related to historical records will be carefully assessed, considering the public interest in preserving historical knowledge. c) Information related to public figures and officials will be subject to a higher threshold for removal, ensuring transparency and accountability in public life. d) RTBF requests related to criminal records will be assessed on a case-by-case basis, considering the severity of the crime, the time elapsed since the conviction, and the public interest in preventing recidivism.
e) RTBF requests concerning data used for scientific or statistical purposes will require strong justification to prevent the impairment of valuable research. G. Enforcement and Penalties:
a) The authority will have the power to enforce the policy and impose penalties for noncompliance. b) Penalties will be proportionate to the severity of the violation and may include fines, warnings, and other corrective measures. c) Individuals will have the right to seek redress for violations of the RTBF.
H. Review and Amendment:
1. The policy will be reviewed periodically to ensure its effectiveness and relevance.
2. Amendments will be made as necessary to reflect changes in technology, law, and societal
values.
3. Public consultation will be a key part of the review process.
Conclusion The Right to Be Forgotten (RTBF) in India represents a complex interplay between privacy rights and public interest. This research examined the practical challenges of RTBF within the Indian legal framework, analyzing judicial trends, statutory gaps, and its implications on digital privacy. While RTBF is recognized in some cases, its inconsistent application due to the absence of a dedicated legal framework creates uncertainty for individuals seeking digital erasure. “The right to be forgotten cannot exist in the sphere of administration of justice particularly in the context of judgments delivered by Courts. An exception to the aforesaid position can be seen in cases of victims of rape and other sexual offences where the Supreme Court itself has directed that the identity of the victims cannot be disclosed”-Karthick Theodre v. Registrar General.
16 To strike a fair balance between privacy and public interest, India must adopt a structured policy framework that defines RTBF parameters while ensuring transparency and accountability. By adopting recommended policy, India can ensure that RTBF serves as a tool for digital privacy protection without undermining democratic values such as freedom of expression and access to information. Karthick v. Registrar General, [2021]
SCC
OnLine Mad (India), https://www.livelaw.in/pdf_upload/karthick-v-registrar-general-525727.pdf (last visited Feb. 28, 2025).
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6. Delhi High Court, in X v. Union of India (2021) W.P.(CRL) 1082/2020
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1. Times of India, Is The 'Right to Be Forgotten' a Fundamental Right? (2023) available
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