Authored By: Induri Sreenija
Vignan Institute of Law - VFSTR
Abstract
In the digital age, where personal information is always accessible online and impacts people’s privacy, dignity, and reputation, the Right to be Forgotten (RTBF) has grown in significance. A constitutional basis for RTBF was established in India when Justice K. S. Putta Swamy (Retd.) v. Union of India recognized privacy as a fundamental right under Article 21.[1] But the lack of a clear legal framework has led to ambiguity about its application and enforcement. The constitutional foundation of RTBF, its connection to freedom of speech and expression under Article 19(1)(a),[2] and the difficulties in striking a balance between privacy and the public interest are all examined in this article. It makes the case for a fair legal framework that preserves individual privacy while defending the right to information and freedom of speech.
Keywords: Article 21, the Digital Personal Data Protection Act of 2023, the right to be forgotten, privacy, freedom of expression, data protection, and constitutional balancing.
INTRODUCTION
Information creation, storage, and sharing have all changed as a result of the quick development of digital technology. Concerns about privacy, dignity, and reputation are raised by the internet’s ability to permanently access personal information, photos, court documents, and news reports. A person’s personal and professional life may continue to be impacted by information that is hurtful, out-of-date, or irrelevant.
By enabling people to request the removal or de-indexing of personal information from online platforms and search engines in certain circumstances, the Right to be Forgotten (RTBF) aims to allay these worries. The constitutional basis for the creation of RTBF in India came from the acknowledgement of privacy as a basic right under Article 21 in Justice K. S. Putta Samy (Retd.) v. Union of India.[3] However, its implementation creates issues with the public’s right to information access and the right to freedom of speech and expression under Article 19(1)(a).[4]
This essay looks at the RTBF’s constitutional foundation, the difficulties in striking a balance between privacy and freedom of speech, and the requirement for a precise legal structure. It makes the case that India needs to take a balanced stance that upholds accountability, transparency, and the public interest while safeguarding individual privacy and dignity.
THE LEGAL FOUNDATION OF THE RIGHT TO BE FORGOTTEN IN INDIA
When personal information becomes out-of-date, irrelevant, inaccurate, or no longer serves a legitimate public purpose, an individual may request that it be removed, de-indexed, or restricted. This process is known as the Right to be Forgotten (RTBF).[5] It seeks to provide people more control over their digital identities while striking a balance with the need to protect data that is required for freedom of expression, legal requirements, or the public good.
The Court of Justice of the European Union’s ruling in Google Spain SL v. Agencia Española de Protección de Datos (AEPD) (2014), which acknowledged a person’s right to seek the removal of out-of-date or irrelevant search results, gave the idea international acceptance. The General Data Protection Regulation (GDPR) and other contemporary data protection frameworks were impacted by this ruling.[6]
Article 21[7] of the Indian Constitution serves as the RTBF’s constitutional basis.[8] The Supreme Court acknowledged privacy as a fundamental right and recognized informational privacy as a crucial component of individual liberty and dignity in Justice K. S. Putta Swamy (Retd.) v. Union of India (2017). [9]Although the Court did not expressly recognize RTBF as a separate fundamental right, the judgment provided a basis for its development. Indian courts have since acknowledged the importance of protecting personal information in certain cases; however, the absence of a specific legal framework has created uncertainty regarding its scope and enforcement.
FREEDOM OF EXPRESSION VS. PRIVACY: THE NEW LEGAL DILEMMA
A constitutional contradiction between the right to privacy under Article 21 and the right to freedom of speech and expression under Article 19(1)(a)[10] is created by the Right to be Forgotten (RTBF). Freedom of expression guarantees information access and democratic transparency, whereas privacy safeguards individual dignity and control over personal data.
The main difficulty is striking a balance between people’s potential harm and the ongoing accessibility of online information. Reputation and rehabilitation may be impacted by information such as old court documents, news stories, or personal details, but press freedom and the public’s right to know may equally be impacted by its removal.
In decisions like Jorawar Singh Mundy v. Union of India (2021)[11] and X v. Registrar General, High Court of Karnataka,[12] where privacy issues were taken into consideration in regard to internet accessibility of personal information, Indian courts have acknowledged this balancing.[13] However, there is uncertainty about whether information should be deleted or kept because there are no explicit legal requirements. In order to preserve privacy without compromising the right to free speech and the public interest, the RTBF must be applied cautiously.
THE PATH AHEAD: THE NEED FOR A FAIR LEGAL SYSTEM
The significance of privacy protection in the digital age is reflected in the court recognition of the Right to be Forgotten (RTBF). However, the lack of precise legislation has led to confusion because courts have decided RTBF claims in a variety of ways. As a result, India needs a precise legislative framework[14] that specifies when personal data should be deleted, restricted, or kept.
A balanced framework should take into account things including the type of information, its accuracy, the amount of time that has passed, the public interest, and the individual’s place in society. While out-of-date or dangerous personal information may be deleted, information about public authorities, major crimes, or issues of public concern should usually continue to be available.
The Digital Personal Data Protection Act, 2023 is a significant step towards data protection but does not expressly regulate the RTBF.[15] Future reforms should provide clear standards and mechanisms for RTBF requests, ensuring protection of individual privacy while preserving freedom of expression, transparency, and public interest.
CONCLUSION
The Right to be Forgotten (RTBF) has become an important aspect of privacy protection in the digital age, where personal information can remain permanently available online. The acknowledgement of privacy as a basic right under Article 21 in Justice K. S. Putta Swamy (Retd.) v. Union of India[16] has established a constitutional underpinning for its development. However, the lack of a formal legal structure has caused doubt surrounding its extent and enforcement.
Since neither right can be seen as absolute, striking a balance between privacy and freedom of expression is crucial.[17] Public access to material of legitimate relevance must be maintained, even as individuals must be shielded from needless disclosure of personal information.
As a result, India needs a clear legal framework that upholds individual dignity in the digital age while guaranteeing accountability, transparency, and freedom of expression.
REFERENCE(S):
Justice K.S. Putta Swamy (Retd.) v. Union of India, (2017) 10 SCC 1.
Google Spain SL v. Agencia Española de Protección de Datos (AEPD) & Mario Costeja González, Case C-131/12, ECLI:EU:C:2014:317 (Court of Justice of the European Union, 13 May 2014).
Jorawar Singh Mundy v. Union of India, 2021 SCC On Line Del 2306.
X v. Registrar General, High Court of Karnataka, 2024 SCC On Line SC 114.
Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632.
Shreya Singhal v. Union of India, (2015) 5 SCC 1.
Constitution of India.
Digital Personal Data Protection Act, 2023 (Act No. 22 of 2023).
Regulation (EU) 2016/679 of the European Parliament and of the Council (General Data Protection Regulation), 2016.
Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/RES/217(III) (10 December 1948).
International Covenant on Civil and Political Rights, 16 December 1966, 999 U.N.T.S. 171.
N. Shukla, Constitution of India (Mahendra P. Singh ed., 14th ed., Eastern Book Company 2022).
P. Jain, Indian Constitutional Law (8th ed., LexisNexis 2018).
Gautam Bhatia, The Transformative Constitution (HarperCollins India 2019).
Bert-Jaap Koops, “Forgetting Footprints, Shunning Shadows: A Critical Analysis of the ‘Right to Be Forgotten’ in Big Data Practice,” 8 SCRIPTed 229 (2011).
Jeffrey Rosen, “The Right to Be Forgotten,” 64 Stanford Law Review Online 88 (2012).
Ministry of Electronics and Information Technology, Government of India, https://www.meity.gov.in.
Supreme Court of India, https://www.sci.gov.in.
EUR-Lex, General Data Protection Regulation (GDPR), https://eur-lex.europa.eu.
[1] Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
[2] Constitution of India, art. 19(1)(a).
[3] Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
[4] Constitution of India, art. 19(1)(a).
[5] Google Spain SL v. Agencia Española de Protección de Datos (AEPD), Case C-131/12, ECLI:EU:C:2014:317 (2014).
[6] Ibid.
[7] Constitution of India, art. 21.
[8] Regulation (EU) 2016/679 (General Data Protection Regulation), art. 17.
[9] Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1
[10] Constitution of India, arts. 19(1)(a) & 21.
[11] Jorawar Singh Mundy v. Union of India, 2021 SCC OnLine Del 2306.
[12] X v. Registrar General, High Court of Karnataka, 2024 SCC OnLine SC 114.
[13] R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632; Shreya Singhal v. Union of India, (2015) 5 SCC 1.
[14] Constitution of India, art. 19(2).
[15] Digital Personal Data Protection Act, 2023 (Act No. 22 of 2023).
[16] Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
[17] Universal Declaration of Human Rights, arts. 12 & 19 (1948); International Covenant on Civil and Political Rights, arts. 17 & 19 (1966).
