INTRODUCTION
In today’s world, where digital footprints are almost impossible to erase, the RIGHT TO BE FORGOTTEN (RTBF) has emerged as an important element in the field of informational privacy. It refers to an individual’s right to request the removal of personal data from different online platforms and sites when the given information is no longer necessary or relevant or when the presence of the data harms the dignity or reputation of the person.
The “Right to be Forgotten” (RTBF), which originated primarily within the jurisprudence of the European Union, U/A 17 of the General Data Protection Regulation Act (GDPR), which advocates for the right of an individual to remove personal data from public access when that data is no longer necessary or relevant. India does lack a codified RTBF, and the landmark 2017 Supreme Court judgement in Justice K.S. Puttaswamy (Retd.) v. Union of India recognized the right to privacy as a fundamental right under Article 21 of the Constitution; this recognition also offers fertile ground for reimagining RTBF as a constitutional guarantee.
The honourable Supreme Court of India in K.S. Puttaswamy (Retd) v. Union of India (2017) said that “the impact of the digital age results in information on the internet being permanent. Humans can forget that information, but the internet does not forget it and does not let humans forget it.”
INTERNATIONAL CONTEXT of Right to be Forgotten
The RTBF gained prominence in light of the Court of Justice of the European Union’s (CJEU) Google Spain SL v. AEPD and Mario Costeja González (2014) decision. González, a Spanish citizen, wanted Google’s search results to remove an old newspaper article regarding his property that was auctioned. Financial issues were the reason for the article, but his status has changed since then. Because it recognized that people can request the links to be removed when they are “inadequate or irrelevant,” the court ruled in his favour.
Under Article 17 within the GDPR, the EU provides for a legal framework that allows individuals to make requests to the data controllers, such as tech companies, so that they may erase their data, especially when:
• The necessity is non-existent now.
• Consent is withdrawn.
• The processing was unlawful.
• Or if the individual objects to the data processed.
Varied approaches have been adopted by most of the democracies.
Canada, through its Office of the Privacy Commissioner, has, for example, explored the RTBF even though it remains controversial.
About resisting any RTBF law, the United States has cited strong free speech protections under the First Amendment.
India still stands at a crossroads of digital transformation, where transparency, accountability, and privacy are balanced.
Right to be Forgotten in the Indian Legal Landscape
In India, RTBF is not recognized in statute but has been addressed through various judicial rulings and proposed data protection frameworks, that is, the DPDP Act.
1. Judicial Precedents: Indian courts have dealt with different RTBF-like claims in the absence of specific legislation regarding the RTBF.
Pre-Puttaswamy Era
Before the Puttaswamy verdict, explicit recognition of the RTBF was lacking within Indian jurisprudence. Courts were hesitant to make an order for the deletion or anonymization of public records, especially when criminal proceedings or media coverage were involved.
Post-Puttaswamy: A Paradigm Shift in Privacy
The Puttaswamy judgment marked a transformative moment in Indian constitutional jurisprudence as it confirmed the notion that privacy rights form a necessary aspect of the right to life and personal liberty under Article 21. The nine-judge bench of the Supreme Court unanimously held that privacy includes ‘informational self-determination, helping individuals to control the collection, use, and spreading of their own data.’ This ruling upholds the principles of dignity, autonomy, and liberty, which are the core of the Indian Constitution.
• Informational Privacy: The Court talked about individuals’ control over their data as a right, especially when information lasts forever on digital platforms.
• Reasonableness and Proportionality: A fair procedure must be followed so that a legitimate state aim can justify an intrusion into anyone’s privacy. This framework is required for creating a balance between RTBF and the rights of a person.
• Dignity as a Core Value: The judgment connected privacy to human dignity as it acknowledged that the free spread of private data might harm someone in shaping their identity and status in society.
These principles supply RTBF with a constitutional-type basis. They tackle those damages that come from information that is outdated or of no use. This foundation helped in considering the need for careful management of personal data in the digital world. For example, an individual convicted of a crime may face a continuing stigma if the arrest record remains online and publicly accessible. RTBF, which was constructed within the privacy framework of Puttaswamy, would empower individuals to seek a remedy and reduce the potential for long-lasting harm caused by past mistakes.
Since then, the Indian High Courts have cautiously engaged with the RTBF, recognizing its importance but also talking about its constitutional limitations.
- X v. Registrar General, Madras HC (2017):
The petitioner here sought to remove his name from a published judgment after getting acquitted in a criminal case. But the High Court refused, saying that Indian law lacks RTBF provisions and judicial records are a matter of public record.
- Jorawar Singh Mundy v. Union of India & Ors., Delhi HC (2021):
This case is characterized as a turning point. An American national was acquitted in a drug case and requested that the Indian Kanoon remove the judgment of his case from its platform. The Delhi HC gave judgment in favour of the American national and stated that the continued public access to the judgment would cause him an undue hardship, especially after he had been acquitted of the case. This was a rare instance of the RTBF being upheld.
- Zulfiquar Ahmed v. State of Uttar Pradesh (2021):
In this, the Allahabad High Court ordered the removal of an individual’s criminal records from the public platform by citing privacy and reputational harm that can be caused to him.
- X v. Union of India, Delhi HC (2020):
In this case, the Delhi High Court ordered the removal of the petitioner’s identity in a published judgment to protect their privacy.
These rulings reflect the Judicial acknowledgement of the RTBF principles, albeit on a case-by-case basis.
2. Data Protection Laws: The Personal Data Protection Bill 2019 proposed a limited right to erasure as it allowed data principals to request the deletion of data when its purpose is fulfilled. This bill was withdrawn in 2022 along with the subsequent Digital Personal Data Protection Act, 2023 (DPDP Act), which included the provision for data erasure but lacked an explicit RTBF framework. The DPDP Act required the data fiduciaries to delete the personal data at the point when it has served its purpose, except when the law mandates retention. Although it aligns with the RTBF’s objective, a thorough right to be forgotten is not provided.
As India lacks a specific RTBF law, this highlights the need to view it as a right within the constitution, using the Puttaswamy framework to address the gaps in existing legislation.
Reimagining Right to be Forgotten as a Constitutional Guarantee
Elevating RTBF to a constitutional right in post-Puttaswamy India is something that strengthens autonomy for people, advances equality, and fits worldwide rules for privacy. In order to reimagine RTBF, one must anchor it within the Constitution, develop a legal but also strong framework, and then address some challenges of implementation.
- Constitutional Anchoring:
RTBF can be added in multiple constitutional provisions, as it is derived from Puttaswamy’s wide interpretation of privacy:
• Article 21 (Right to Life and Liberty): Autonomy and dignity are protected by RTBF when it allows people to erase outdated or harmful data.For example, past financial trouble or acquitted criminal charges should not perpetually define a person’s identity. RTBF ensures individual can move on from their digital past. A dignified life is guaranteed by Article 21 of the Constitution by adding RTBF to it.
• Article 19(1)(a) (Freedom of Expression): Freedom of expression coupled with access to information must be balanced via RTBF. The Puttaswamy judgment can help us balance this, and it should ensure RTBF does not restrict public discourse or journalists’ freedom.
• Article 14 (Right to Equality): RTBF promotes equality among the citizens. It works to prevent discrimination based on any irrelevant or outdated data. RTBF can be used by communities with criminal records or victims of online harassment to reduce the systemic biases in digital records, thus promoting equality among the people of different communities.
India can create a principal framework by including RTBF in the above constitutional provisions, which respect social interests by prioritizing the rights and dignity of an individual.
Legal and Institutional Framework: To make RTBF a constitutional right, India would need:
• Dedicated Legislation: The scope, criteria, and the process for data erasure requests should be defined by a specific RTBF law or amendments to the DPDP Act. Legal obligations and public interest must be outlined as exemptions under law. In order to preserve the transparency, information’s that are about public figures or active legal proceedings should be exempted from erasure.
• Judicial Guidelines: Courts should try to develop a proportionality test to help evaluate claims of RTBF, as suggested within the Puttaswamy Judgement. Relevant factors could include the nature of all of the data, such as both criminal records and financial history, its relevance over time, harm to the individual, and public interest in retaining it are also relevant. The implementation of a standardized test would be of use. This test would ensure consistency within judicial outcomes.
• Judicial Framework: The Supreme Court should create a binding framework that specifies when RTBF can be invoked, similar to the Vishaka Guidelines established in the absence of sexual harassment laws. This will assist lower courts and prevent arbitrary judgments.
• Regulatory Oversight: The DPDP Act’s Data Protection Authority (DPA) may handle complaints, implement RTBF, and ensure compliance from data fiduciaries like social media platforms plus search engines.
• Technological Enforcement: Collaboration with tech companies is essential to ensure effective delisting or anonymization of data. For example, search engines could remove links of specific content without deleting the underlying data, as practiced in the European Union.
- Challenges in the Implementation of RTBF:
Implementing Right to be Forgotten as a Constitutional Right comprises several challenges:
• Balancing of the Competing Rights: Right to be Forgotten conflicts with the freedom of expression and the public’s right to know. For example, removing the information about a public figure’s past misconduct could compromise the accountability of that person. A new and forward approach is needed to ensure that RTBF does not crush the legitimate information for public disclosure.
• Technological Limitations: Erasing the data completely is very challenging in this decentralized digital ecosystem. Data can be replicated across different servers and devices, can be archived by third-party applications, sites, or can be stored on the dark web, which is next to impossible to erase entirely. Partial measures can be taken, such as removing of information from the search engines, i.e., Google, Microsoft Bing.
• Judicial and Administrative Burden: In the absence of clear laws, both the courts and the Data Protection Authority (DPA) might face a rise in RTBF petitions, which may lead to a strain on resources. A more efficient approach, such as creating an online portal for erasure requests, could help ease this burden.
• Cultural and Social Context: The diverse social context of India makes the application of the Right to be Forgotten (RTBF) quite complex. In rural regions, the focus tends to be on collective reputation rather than individual privacy, whereas urban residents are more likely to advocate for enhanced data protection. A culturally sensitive strategy is vital in addressing these differences.
- Opportunities for Empowerment:
Despite these challenges, a constitutionally guaranteed RTBF provides significant opportunities:
• Empowering Marginal Groups: Vulnerable population, of cyberbullying victims or gender-based violence survivors, or individuals with past criminal records, can be protected via RTBF from never-lasting accusations. By allowing data removal, RTBF promotes social inclusion & equality among the citizens.
• Global Alignment: A strong Right to be Forgotten structure aligns India to privacy standards that globally improve reputations like the GDPR in data governance. This could draw foreign investment and will also help in building trust in the Indian Economy.
• Technological Innovation: Right to be Forgotten can help in technologies to improve privacy in securing data, decentralized identity systems, or automated delisting tools. Indian tech companies can help in developing such solutions as per the country’s requirements.
• Judicial Leadership: Indian courts can set a global reputation by balancing privacy with freedom of expression in this digital age by recognizing RTBF as a constitutional right, helping in reinforcing India’s role as a leader within constitutional innovation.
Conclusion
The Puttaswamy judgment provides an important opportunity to redefine the Right to Be Forgotten (RTBF) as a constitutionally protected right in India. By including RTBF U/A 21 (right to life and liberty), U/A 19 (freedom of expression), and U/A 14 (equality before the law), India can help individuals to have more control over their digital identities while maintaining a careful balance with public interest and transparency. To effectively implement RTBF, a comprehensive legislation, clear judicial guidelines, robust regulatory mechanisms, and technological collaboration are required. Although challenges like conflicting rights, enforcement issues, and cultural diversity remain, the potential benefits—such as individual empowerment, improved digital dignity, and alignment with global data protection standards—are significant. As India develops its digital constitutional framework, establishing RTBF as a practical and enforceable right would reinforce its dedication to privacy, equality, and autonomy, serving as a model for other emerging democracies around the world.
“The right to be let alone is indeed the beginning of all freedom.”
— Justice William O. Douglas, U.S. Supreme Court
ABOUT AUTHOR
Chirag Raghav a law student at Campus Law Centre, University of Delhi, is a budding legal writer with a sharp eye for evolving legal landscapes. Having a keen interest in Criminal, Civil, and Constitutional Law. Chirag actively explores the contemporary legal context through writing and research.