Authored By: Himanshu Dhar
Lloyd Law College
Introduction
The “right to be forgotten” has emerged in India as a privacy-based remedy that allows an individual to seek removal, masking, de-indexing, or restriction of access to personal information that is no longer necessary, relevant, or proportionate to keep in the public domain. Yet in India, this right remains more judicially suggested than statutorily secured. The result is a fragmented legal position: some High Courts have recognised limited relief in sensitive or reputationally damaging situations, while others have refused to treat the right as enforceable against court records, legal databases, or public judgments. The Supreme Court’s recognition of privacy as a fundamental right in K.S. Puttaswamy v Union of India has supplied the constitutional foundation for such claims, but it has not created a self-executing, universally applicable right to erasure or oblivion.[1]
This article argues that India’s right to be forgotten currently exists as a judge-made, context specific privacy remedy rather than a coherent legal entitlement. The problem is not recognition in principle, but enforceability in practice. High Court decisions have produced inconsistent standards, the Digital Personal Data Protection Act 2023 does not codify a broad right to be forgotten, and the competing values of open justice, transparency, freedom of expression, and reputational privacy remain unresolved. The discussion below first examines the constitutional and statutory framework, then analyses the divergent High Court rulings, evaluates the resulting doctrinal gap, compares India with the European Union model, and finally suggests a reform path.
Legal Framework: Constitutional Privacy Jurisprudence and the Silence of the DPDP Act 2023
The modern Indian discussion begins with K.S. Puttaswamy v Union of India (2017), where privacy was affirmed as intrinsic to Article 21 and linked to dignity, autonomy, and decisional freedom. The Court also acknowledged informational self-determination and indicated that an individual may, in suitable circumstances, seek removal or restriction of unnecessary personal data. However, the judgment did not create an operational right to erase judicial records or internet search results in all cases. Instead, it left the matter open to balancing exercises involving public interest, legal obligations, and freedom of speech.[2]
That balance matters because the right to be forgotten sits at the intersection of several constitutional values. On one side are Articles 21 and 14, which support privacy, dignity, and fair treatment. On the other are Article 19(1)(a) and the public character of judicial proceedings. Court records are not ordinary private data; they are part of the legal archive and may serve legitimate functions such as precedent, accountability, and public scrutiny. That is why the Indian debate has never been about absolute deletion, but about partial and proportionate relief such as masking names, de-indexing search results, or redacting sensitive details.
The statutory position remains weak. The Digital Personal Data Protection Act 2023 does not expressly codify a general right to be forgotten. Instead, the final law moved away from the broader language found in earlier drafts and adopts a narrower model centred on correction, completion, updating, and erasure of personal data in defined settings. Even then, uncertainty remains over whether publicly available data, particularly court records and judgments, are fully covered.[3]
This silence is consequential. A constitutional right without a detailed statutory framework forces courts to improvise remedies case by case. That produces doctrinal uncertainty, inconsistent standards, and uneven outcomes for similarly situated litigants. It also leaves major questions unanswered: who decides when information is no longer necessary? Should the same standard apply to acquitted accused persons, victims of sexual offences, matrimonial litigants, and public figures? Should any order run against the original judgment itself or only against search engines and secondary databases? Indian law currently lacks a uniform answer.
Case Law Analysis: The Inconsistent High Court Rulings
Indian High Court decisions reveal a patchwork approach rather than a settled doctrine.
The Gujarat High Court took an early restrictive stance in Dharamraj Bhanushankar Dave v State of Gujarat (2015). The petitioner sought removal of a judgment acquitting him in a serious criminal case from online reporting. The Court refused, effectively treating publication of the judgment as part of public judicial record and declining to interfere with online access. This decision became a key reference point for the view that judicial records are not ordinarily subject to erasure.[4]
The Karnataka High Court adopted a more privacy-friendly view in Name Redacted v Registrar General, High Court of Karnataka (2018). The Court recognised the right to be forgotten in a limited sense, particularly in sensitive matters affecting women’s dignity and reputation. It allowed redaction of a daughter’s name from a judgment involving marriage and forgery, reasoning that privacy in such cases could justify restriction on continued online disclosure. This was a significant step, but the relief was narrow and closely tied to the facts.[5]
The Delhi High Court moved the law further in Jorawar Singh Mundy v Union of India (2021), where an acquitted petitioner sought removal of a judgment from search results and legal databases because continued online availability was causing reputational harm and affecting his prospects abroad. The Court granted interim relief and directed de-indexing/removal by Google and Indian Kanoon. Later, in Zulfiqar Ahman Khan v Quintillion Business Media (P) Ltd (2019), the Delhi High Court recognised privacy and the right to be left alone in the context of publication of allegations, showing that the right could extend beyond criminal acquittals to reputational protection in sensitive disputes.[6]
The Orissa High Court, in Subhranshu Rout v State of Odisha (2020), strongly supported the need for a right to be forgotten in cases involving intimate images and videos of victims circulated online. The Court observed that once information enters the public domain, it may be impossible to fully retrieve, and it lamented the absence of a statutory mechanism to protect victims from continuing digital harm. This decision is important because it demonstrates that the right’s strongest moral force often appears in sexual and gender-based harms.[7]
The Kerala High Court, however, signalled judicial restraint in Vysakh KG v Union of India (2022). The Court held that the right to be forgotten cannot override open justice and larger public interest, and emphasised that such a right must be defined by legislation rather than inferred expansively from privacy doctrine alone. This approach reflects caution but also exposes the central problem: without statute, the right remains contingent and uneven.[8]
Critical Evaluation
The most serious weakness in India’s current position is not the absence of moral support for privacy. It is the absence of an enforceable legal architecture. Judicial recognition alone cannot resolve the conflicts between dignity, memory, transparency, and the public interest in accessible court records. As a result, the right to be forgotten in India operates more as an equitable exception than as a stable legal entitlement.
First, the doctrine lacks clear standards. Courts have not agreed on the threshold for relief. Some decisions focus on sensitivity of the subject matter, especially sexual offences, family disputes, and intimate personal data. Others emphasise acquittal and reputational harm. Still others refuse relief on the ground that judgments are public documents. Without a uniform test, similarly placed applicants may receive different outcomes depending on the forum and factual framing.
Second, the remedy is structurally ambiguous. Indian decisions sometimes direct redaction in court records, sometimes de-indexing by search engines, and sometimes non-publication on legal databases. These are not identical forms of relief. Redaction affects the official record; de-indexing affects discoverability; removal from private databases affects commercial publishing. A coherent right must distinguish between these forms and specify when each is appropriate.
Third, the law has not resolved the tension with open justice. Open justice is not a procedural luxury; it is a constitutional value that supports accountability, public confidence, and legal education. Any right to be forgotten must therefore be limited, proportionate, and justified by stronger countervailing interests. Complete deletion of judgments would undermine legal transparency. A more balanced approach would focus on masking names, initials, anonymisation, and de-indexing in narrowly defined categories.
Fourth, the DPDP Act 2023 has not filled the gap. Even if its erasure-related provisions are read generously, the Act does not explicitly create a judicial-record exception regime or a robust procedure for seeking de-indexing of court judgments. Nor does it identify the decision-maker, standard of review, appellate mechanism, or timelines for compliance. The result is that privacy protection remains under-designed.
Fifth, the absence of statutory clarity burdens individuals disproportionately. A person whose acquittal, victimisation, or family dispute continues to appear prominently in search results may suffer lasting stigma, even after legal vindication. This is especially harmful in the digital age, where the internet does not forget, search engines amplify old content, and automated indexing turns isolated judgments into permanent reputational markers. A law that treats all online availability as public access without context fails to account for this enduring harm.
For these reasons, the Indian position should not be described as a fully formed right. It is better understood as a privacy-based judicial discretion framework. That framing is analytically honest, but it is unsatisfactory from a rights-enforcement perspective.
III. Comparative Perspectives: The EU’s Codified Right versus India’s Judge-Made Patchwork
The European Union provides the clearest contrast. Under Article 17 of the General Data Protection Regulation, data subjects enjoy a statutory right to erasure in specified circumstances, including where data are no longer necessary for the purposes collected, consent is withdrawn, or processing is unlawful. The right is not absolute, but it is codified, procedurally defined, and balanced against freedom of expression, public interest, archiving, and legal claims.[9]
The EU model is also supported by jurisprudence. In Google Spain SL v Agencia Española de Protección de Datos, the Court of Justice of the European Union held that search engines may be required, in certain circumstances, to de-index links to personal information that is irrelevant or excessive in relation to the purposes of processing.[10] The key innovation was not deletion of the source content itself, but regulation of discoverability. This is crucial because it balances privacy with the persistence of lawful publication.
India lacks this level of specificity. It has constitutional recognition without comprehensive statutory design. Its courts have supplied remedies case by case, but they have not produced a general framework comparable to Article 17 GDPR. A comparative lesson is that India does not need to import absolute deletion; it needs procedural clarity, defined standards, and institutional mechanisms for balance.
Reform Proposal
A workable Indian reform should combine constitutional privacy with statutory precision. First, Parliament should expressly recognise a limited right to be forgotten in the DPDP framework or a dedicated amendment. Second, the right should be confined to appropriate categories, such as acquittals, minor offences, sexual offences, family law matters, and victim-identifying materials. Third, the statute should distinguish between deletion, anonymisation, redaction, and de-indexing. Fourth, it should require a proportionality test that weighs privacy, public interest, open justice, and the age/relevance of the information. Fifth, it should create a transparent application procedure with judicial oversight and reasoned orders.
Such a model would not erase history. Rather, it would prevent permanent digital punishment where continued availability serves little legitimate purpose and imposes disproportionate harm. In a constitutional democracy, privacy and transparency need not be enemies, but they do require disciplined boundaries.
Conclusion
India’s right to be forgotten is real in principle but incomplete in law. Constitutional privacy jurisprudence, especially after K.S. Puttaswamy, has made space for informational dignity and selective erasure, yet the absence of an explicit statutory framework has left the doctrine uneven and contested. High Court rulings show genuine judicial engagement, but they also reveal inconsistency over standards, remedies, and the role of open justice. The DPDP Act 2023 does not fully resolve this ambiguity. Compared with the European Union, India’s model remains fragmented and ad hoc.
The proper conclusion is not that the right should be rejected, but that it must be carefully codified. A limited, proportionate, and procedurally governed right to be forgotten would better reconcile privacy with transparency than the current patchwork of judicial improvisation. Until then, India will continue to recognise the right in rhetoric while struggling to enforce it in practice.
Reference(S):
Cases
∙ Dharamraj Bhanushankar Dave v State of Gujarat 2015 SCC Online Guj 2017.
∙ Google Spain SL v Agencia Española de Protección de Datos (C-131/12) EU:C:2014:317.
∙ Jorawar Singh Mundy v Union of India 2021 SCC Online Del 2306.
∙ K.S. Puttaswamy v Union of India (2017) 10 SCC 1.
∙ Name Redacted v Registrar General, High Court of Karnataka 2017 SCC Online Kar 424.
∙ Subhranshu Rout v State of Odisha 2020 SCC Online Ori 878.
∙ Vysakh KG v Union of India 2022 SCC Online Ker 412.
∙ Zulfiqar Ahman Khan v Quintillion Business Media (P) Ltd 2019 SCC Online Del 8497.
