Introduction
When the Supreme Court of India unanimously held in K.S. Puttaswamy v. Union of India (2017) that privacy is a fundamental right under the Constitution, it opened a constitutional space whose contours are still being defined case by case, statute by statute, and controversy by controversy. Among the facets of privacy that the nine-judge bench identified, the right to control information about oneself stands out as both analytically rich and practically fraught. Nested within that informational dimension of privacy is the right to be forgotten: the claim that individuals ought to be able to seek removal of information about themselves from public circulation, particularly digital circulation, where that information, though perhaps accurate when published, continues to cause harm in a way that is disproportionate to any legitimate public interest it serves.
The right to be forgotten is not a new concept in global legal discourse. The Court of Justice of the European Union articulated it with landmark effect in Google Spain v. AEPD (2014), and the General Data Protection Regulation, 2018 formalized it as the right to erasure under Article 17. India, by contrast, has approached this right tentatively and through indirect routes: High Court decisions that have recognised its existence without fully elaborating its scope, a data protection statute that addresses erasure in limited terms, and a persistent structural conflict between this emerging right and older constitutional values of press freedom, open justice, and the public’s entitlement to accurate information about matters of record.
The unresolved character of this tension is not incidental. It reflects genuine and competing constitutional values that cannot be reconciled by simple priority rules. This article examines where Indian law currently stands, where it has been moving, and what a constitutionally coherent framework for the right to be forgotten might look like.
Legal Framework
The Puttaswamy judgment, decided by nine judges with multiple concurring opinions, established privacy as a fundamental right under Articles 14, 19, and 21 of the Constitution. Justice D.Y. Chandrachud’s opinion, which is the most analytically elaborate, identified three aspects of privacy: physical privacy relating to the body and personal space, decisional privacy relating to choices and autonomy, and informational privacy relating to the flow of personal data and the ability to control one’s own narrative. The right to be forgotten, where it exists, is a manifestation of informational privacy.
Puttaswamy did not itself articulate a right to be forgotten in express terms. The judgment recognised that the right to privacy, like all fundamental rights, is not absolute and must be balanced against other constitutional values and competing rights. The parameters of that balancing in the specific context of information removal were left for future elaboration. The judgment’s reference to “decisional autonomy” and the “right to control the dissemination of personal information” provided the doctrinal foundation for subsequent High Court decisions, but the Supreme Court itself has not yet directly adjudicated a right to be forgotten case.
The Digital Personal Data Protection Act, 2023 represents India’s first comprehensive statutory framework for data protection. Section 12 of the Act provides a data principal with the right to correction and erasure of personal data. However, this right is subject to significant limitations. It applies primarily to data processed by data fiduciaries for specified purposes, and it does not straightforwardly address data that appears in court records, newspaper archives, or other public documents that serve functions beyond data fiduciary operations. The DPDP Act’s provisions on erasure are weaker than their GDPR counterparts in several respects: they apply only where processing is no longer necessary for the purposes for which consent was given, they do not establish a general right to request erasure on the ground of ongoing harm, and the exceptions carved out for legitimate state functions and compliance with legal obligations are broadly drawn.
Judicial Developments
The most significant Indian judicial engagement with the right to be forgotten at the High Court level has occurred through cases involving court judgments and legal proceedings appearing in internet search results. In Jorawar Singh Mundy v. Union of India, decided by the Delhi High Court in 2021, the petitioner, an American citizen of Indian origin, sought the removal of a judgment of the Delhi High Court from internet databases, arguing that its continued visibility was causing him persistent professional harm years after his acquittal. The court recognised the existence of the right to be forgotten as a facet of the privacy right under Article 21 and granted partial relief, directing Indian Kanoon and other legal databases to de-index the judgment from search results.
The Zulfiqar Haider cases from the Allahabad High Court addressed similar questions involving persons who had been acquitted or had their cases compounded, but whose names continued to appear prominently in search results associated with criminal proceedings. The court’s approach was to treat the right to be forgotten as genuine but not absolute, requiring a fact-specific balancing between the petitioner’s privacy interests and the public interest in accurate legal records.
These decisions, while sympathetic to the petitioners, have been criticised on grounds that they risk undermining the principle of open justice. Court judgments are public documents. They form part of the legal record not merely for the parties but for the legal community, researchers, journalists, and future litigants whose cases may raise similar questions. De-indexing a judgment from search engines does not erase it from the authoritative record, but it substantially reduces its accessibility to anyone who does not know exactly where to look. Critics argue that this is a meaningful interference with the public nature of judicial proceedings.
The conflict between the right to be forgotten and the freedom of the press under Article 19(1)(a) has arisen in cases involving newspaper archives. Several petitioners have sought to have newspaper reports about their involvement in criminal cases or personal controversies removed from digital archives, arguing that the reports, while accurate when written, cause ongoing reputational harm. Courts have generally been more hesitant in these cases, recognising that the press’s right to maintain accurate historical archives is itself a constitutionally protected interest.
Contemporary Issues and Analysis
The analytical complexity of the right to be forgotten in the Indian context flows from the intersection of at least four distinct constitutional values, none of which admits of simple subordination to the others. Privacy, as recognized in Puttaswamy, protects the individual’s dignitary interest in controlling her own narrative. Press freedom under Article 19(1)(a) protects not only the publisher but the reader’s right to receive information. The principle of open justice, while not explicitly articulated in the constitutional text, inheres in the structure of a constitutional democracy that relies on public scrutiny of state power. And the public’s interest in accurate historical information, particularly about persons who have exercised public roles or been involved in matters of public concern, serves the broader purposes of accountability and informed democratic discourse.
These values collide most sharply in cases where the information sought to be erased is accurate, where its publication was originally lawful, and where the primary objection is to its continued accessibility rather than its content. This is structurally different from defamation, where the information is false, or from breach of confidence, where the information was obtained in circumstances of confidentiality. In right-to-be-forgotten cases, the information is typically true and was publicly available; the argument is that its continued availability causes a harm that outweighs the benefit of its continued circulation.
The GDPR’s approach to this problem, which the Indian DPDP Act has borrowed in attenuated form, involves a multi-factor balancing test that considers the nature of the information, the role of the data subject, the public interest in the information, the harm caused by its continued availability, and the proportionality of removal. The European framework has generated a substantial body of case law that provides some guidance, though European and Indian constitutional traditions differ in important ways.
The structural problem that Indian law faces in this area is the absence of any institutional mechanism for making these balancing determinations systematically and consistently. Courts decide individual cases, and their decisions tend to reflect the specific facts of the case before them. What is needed, if the right to be forgotten is to be more than an ad hoc exercise in equitable discretion, is a framework that specifies the factors to be considered, the presumptions that operate in favour of or against erasure, and the procedural mechanisms through which competing interests are heard and assessed.
Comparative and International Perspective
The Google Spain judgment of the Court of Justice of the European Union established that search engines are data controllers in relation to the results they produce, and that individuals have a right to request de-listing of search results that are “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed.” The judgment generated immediate and significant practical consequences: Google established a request mechanism that has received millions of de-listing requests across Europe, and the Article 29 Working Party, subsequently replaced by the European Data Protection Board, issued guidelines on how national data protection authorities should approach these requests.
The European framework explicitly acknowledges that the right to be forgotten is not absolute. Article 17(3) of the GDPR provides that the right to erasure does not apply to the extent that processing is necessary for exercising the right of freedom of expression and information, for compliance with a legal obligation, for public health reasons, for archiving purposes in the public interest, or for the establishment, exercise, or defence of legal claims. These exceptions are meaningful and create space for journalistic, academic, and legal archives to resist erasure requests.
The contrast with India is instructive. India’s DPDP Act creates a right to erasure but the exceptions are differently structured and their application to court records and journalistic archives is unclear. The absence of a data protection authority with the capacity and jurisprudential sophistication of the European Data Protection Board means that these questions will, at least in the near term, continue to be resolved through litigation rather than administrative adjudication.
The United States takes a markedly different approach. The First Amendment’s protection of speech is robust enough that a right to be forgotten of the kind recognised in the EU would face significant constitutional headwinds in the American context. The tensions between privacy and free speech are managed through a combination of tort law (defamation, false light, public disclosure of private facts), state-level legislation, and platform voluntary policies, but there is no general right to demand removal of accurate information from public circulation. India’s approach is likely to end up closer to the European model given the constitutional status of privacy after Puttaswamy, but the precise calibration remains to be worked out.
Practical and Policy Implications
The practical implications of recognising a robust right to be forgotten in India are considerable and extend well beyond the individual cases that have so far been litigated. Legal databases like Indian Kanoon and SCC Online contain millions of case records that name parties, witnesses, and lawyers by name. These records serve essential functions for legal research, precedent identification, and judicial education. A broad right to de-index judgments from search engines would leave the official records intact but would substantially reduce their effective accessibility, which is not a trivial difference in a country where legal research is primarily conducted through search rather than through systematic review of court archives.
Newspaper archives present a different but related problem. Indian newspapers have been moving their archives online, and decades of reporting on crime, political controversy, and personal scandal are now searchable in ways that were practically impossible in the print era. A person who was involved in a public controversy thirty years ago and has since rebuilt their life faces a genuinely different information environment than a person in the same situation before digital archiving. Whether the law should respond to this change, and if so how, is a question of real moral and practical weight.
The DPDP Act’s provisions on erasure, as they currently stand, are unlikely to provide comprehensive relief in these situations. The Act’s focus on data fiduciaries processing personal data for specific purposes does not map cleanly onto the situation of a person seeking removal of a court judgment or newspaper article from a digital database. Legislative amendment or judicial elaboration will be needed to address these cases coherently.
Suggestions and Reforms
The most immediate reform required is clarity from the Supreme Court on the constitutional status and scope of the right to be forgotten under Article 21. A clear doctrinal framework that specifies the factors relevant to balancing privacy against press freedom and open justice would provide guidance to High Courts that are currently deciding these cases without consistent principles. The Supreme Court should, in an appropriate case, examine the right to be forgotten directly rather than continuing to leave it to evolving High Court jurisprudence.
A data protection authority with the capacity to adjudicate right-to-be-forgotten requests, including those involving legal records and journalistic archives, would be more efficient and more consistent than judicial resolution of individual cases. The DPDP Act establishes the Data Protection Board of India, but its jurisdiction and the scope of its remedial powers in relation to court records and press archives need to be clarified, either by amendment or by delegated legislation under the Act.
Legislative amendment to the DPDP Act should clarify the relationship between the right to erasure and the open justice principle, the rights of the press under Article 19(1)(a), and the specific situation of legal records. A framework that creates a presumption in favour of privacy where the data subject is a private individual, the information is not of current public interest, and continued availability causes demonstrable harm, while maintaining a presumption against erasure for records of public officials and matters of current public concern, would provide a workable starting point.
Conclusion
The right to be forgotten represents one of the most genuinely difficult constitutional questions to emerge from the Puttaswamy revolution. Unlike some privacy claims, where the tension between privacy and other values is relatively easy to resolve, the right to be forgotten involves a structural conflict between the individual’s interest in escaping the past and the collective interest in accurate memory, open justice, and a free press. Neither side of this conflict should be dismissed, and neither should be automatically preferred.
What the Indian constitutional system currently lacks is a coherent institutional and legal framework for making the balancing determinations that these cases require. Ad hoc High Court orders, limited statutory rights under the DPDP Act, and the absence of Supreme Court doctrinal guidance have produced an uncertain landscape in which outcomes depend more on the specific judge and facts than on any principled constitutional standard. Developing that standard, through a combination of Supreme Court articulation, legislative amendment, and regulatory capacity-building, is among the more pressing tasks on India’s privacy law agenda. The Puttaswamy judgment provided the foundation. The architecture of the right to be forgotten remains to be built.
