Right to be Forgotten | Madras HC decides whether redacting names of acquitted persons from court record is possible

Madras High Court: N. Anand Venkatesh, J., remarked that,

There is no doubt with regard to the fact that the moment Judge records an order of acquittal, the identity of a person as an accused is completely wiped out.

Right to be Forgotten?

 Whether an accused person who on being charged for committing an offence and having undergone trial and ultimately been acquitted of all charges by a Court of competent jurisdiction, has the right to seek for destruction or erasure or redaction of their personal information from the public domain?

Whether the above right is traceable to Article 21 of the Constitution of India as a right to privacy which is an intrinsic part of the right to life and personal liberty, hence an enforceable right as held by the Supreme Court decision in K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1, whether in light of the same, this Court can set out guidelines in exercise of its jurisdiction?

Every counsel in the present matter in unison reverberated the undisputable position of law that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21and as a part of the freedoms guaranteed by Part III of the Constitution. 

Present matter involved a right to reputation which is inherent to the right to life protected under Article 21 of the Constitution.

It was further submitted that a judgment of acquittal gives the accused a right of getting an automatic expungement of his name from all records and particularly from those which are within public domain.

The peculiarity of seeking redaction of the name of accused persons who have been acquitted, has essentially gained significance due to the development of science and technology that has virtually brought everything under the sky to the fingertips of any person who may have access to the internet. The search engines provide information about any person and whatever information is available in the “Cloud” can be accessed by anyone.

 Further, it was stated that a person despite getting acquitted after facing criminal trial has their name reflected in the order or judgment as an accused which identity, they want this world to forget.

High Court came to a prima facie conclusion that an accused person is entitled to have their name redacted from the judgments or orders and more particularly the ones that are available in the public domain and accessible through search engines.

To the above, Court added that there may be ramifications if such a generalized order was passed, and directions were issued. Hence, the need for assistance from the Bar, therefore, seemed imperative.

Initially, this Court was inclined towards the right to privacy, right of reputation and right to live with dignity being read to have a wide scope. The Court felt that it had to come to the rescue until the legislature ultimately enacts the Data Protection Act. However, on a deeper review of the issue, this Court has taken cognisance of the fact that the same is not as simple and straight as it sounded.

Bench elaborating more on the above aspect, stated that Court is called upon to literally strike the name of the person from the order or judgment which recorded the acquittal of the person from the criminal proceedings.

An identity which has already been wiped out by operation of law is sought to be wiped out at a gross level wherever there is reference to the name in the order or judgment.

 Another question that solicited the attention of this Court was at which level of jurisdiction should the process of redaction be done?

High Court found force in the submission of Arun Anbumani, that this Court is only looking at the end product of criminal litigation, which is the final judgment or an order of acquittal which gets published. Counsel submitted that the damage to reputation or dignity starts right from the day a complaint is given, an FIR is registered, an accused gets remanded and when they face trial. At every stage, there is a publication and while seeking for redaction, none of the said publications will be touched.

Counsel further submitted that it is only an order or judgment of acquittal which actually saves the honour of a person whose name has already been tarnished due to various publications that take place and which are also readily available on the search engines.

Court expressed that, if the system is looking for identifying an effective right for a person acquitted in a criminal proceeding, it must be a consummate relief and there is no use in just erasing the name in a final judgment or order.

It was also added that, only Juvenile Justice [Care and Protection of Children] Act, 2015 provides for the complete destruction of the entire criminal record which ultimately removes the person from their identity as an accused person.

Principle of Open Justice

High Court while quoting Bentham and citing the decision of House of Lords in Scott v. Scott, [1913 A.C. 417], stated that in cases like minors and matrimonial disputes, where publicity may be harmful to the subject matter of the lis, the principle of open justice must yield to the still more paramount duty to do justice. After all, publicity is only a means to an end.

Further, the Court added that in India the principle of open justice has been identified as a central tenet of the rule of law. The principle, however, is not monolithic, and encompasses various precepts. In Swapnil Tripathi v. Supreme Court of India (2018) 10 SCC 639, wherein, D.Y Chandrachud, J., identified the following elements:

1. The entitlement of an interested person to attend Court as a spectator;
2. The promotion of full, fair and accurate reporting of court proceedings;
3. The duty of Judges to give reasoned decisions; and
4. Public access to judgments of Courts.

Therefore, it can be established from the above that public access to judgments of Courts is an integral percept of the concept of open justice, promoting the rule of law.

Whether right to privacy exists in the contexts of judgments and orders of a Court?

The principles laid down in the Supreme Court decision of R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632, were affirmed by the 9-Judge Bench in K.S. Puttaswamy’s case. It must, therefore follow that judgments of courts being public record, the right to privacy cannot subsist. The concurring judgment of S.K Kaul, J also recognizes this position. In paragraph 636, the learned judge took note of what has now come to be termed as “the right to be forgotten” and has opined thus:

“If we were to recognise a similar right, it would only mean that an individual who is no longer desirous of his personal data to be processed or stored, should be able to remove it from the system where the personal data/information is no longer necessary, relevant, or is incorrect and serves no legitimate interest. Such a right cannot be exercised where the information/data is necessary, for exercising the right of freedom of expression and information, for compliance with legal obligations, for the performance of a task carried out in public interest, on the grounds of public interest in the area of public health, for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, or for the establishment, exercise or defence of legal claims. Such justifications would be valid in all cases of breach of privacy, including breaches of data privacy.”

Court decided that the “right to be forgotten” cannot exist in the sphere of the administration of justice particularly in the context of judgments delivered by Court.

An exception to the aforesaid position could be seen in cases of victims of rape and other sexual offences where the Supreme Court directed that the identity of victims cannot be disclosed. [See Nipun Saxena v. Union of India, (2019) 2 SCC 703]

Petitioner’s grievance was that continued reflection of his name as an accused in the judgment of this Court is a violation of his right to privacy under Article 21 of the Constitution or more specifically, its subset, the right to be forgotten.

However, it is a settled position of law that a judicial order of a Court cannot violate fundamental rights under Part III of the Constitution.

The direction sought by the petitioner was to redact his name from an order passed by a co-ordinate bench of this Court in a regular criminal appeal.

In Naresh Sridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, it was conclusively held that a writ does not lie to an order of a Court placed on an equal footing in the matter of jurisdiction.

“…any judicial order, irrespective of the nature of jurisdiction and the strength of the Bench, is, in effect, the order of the High Court as one institution.”

“…since the High Court is one indivisible institution, a writ cannot lie against a judgment or order passed by it for that would tantamount to the High Court issuing writs against itself.”

Sanctity of an Original Record

The High Court is a Court of Record under Article 215 of the Constitution. As a superior Court of Record, it is entitled to preserve the original record in perpetuity. Thus, the sanctity of an original record cannot be altered or otherwise dealt with except in a manner prescribed by law.

No judgment of any Court has been cited to show that the prerogative power of this Court under Article 226 extends to direct alteration of its own records.

This Court honestly feels that our criminal justice system is yet to reach such standards where courts can venture to pass orders for redaction of name of an accused person on certain objective criteria prescribed by rules or regulations. It will be more appropriate to await the enactment of the Data Protection Act and Rules thereunder, which may provide an objective criterion while dealing with the plea of redaction of names of accused persons who are acquitted from criminal proceedings.

Therefore, Court declined to grant the relief sought for in the writ petition and hence the same was dismissed. [Karthick Theodore v. Madras High Court, 2021 SCC OnLine Mad 2755, decided on 3-08-2021]

Advocates before the Court: