Madras HC on the Right to be Forgotten: A Welcome Development? (Part II)

We are pleased to bring you a two-part guest post by Sriya Sridhar, analysing the judgement passed by the Madras High Court today in a case where the petitioner seeks his name to be redacted from a judgment in a case where he was ultimately acquitted. Sriya graduated from Jindal Global Law School in 2020, and is now a lawyer specialising in IP and Technology law.  Part I of the post can be viewed here.

Madras HC on the Right to be Forgotten: A Welcome Development? (Part II)

Sriya Sridhar

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In the first part of this post, I covered the background, interim order and final arguments in the RTBF matter before the Madras HC. In this second part, I will examine the final judgment issued by the Court today, in which the Court takes a completely opposite stand from the interim order. I will look at why I think this is a positive development, compare it with the aspects of the interim order I found problematic, and outline some key aspects which still require more clarity.

The Judgment: Welcome Judicial Restraint with Missed Opportunities

The judgment deviates from the interim order entirely (which I find to be a welcome development), and addresses some of the key issues I found problematic with the interim order. In the judgment, the Court has held that while it was initially inclined to uphold the petitioner’s RTBF, it has now found that a generalized principle of upholding the RTBF for acquitted persons would open the floodgates and cause confusion.

The Court bases its reasoning on the following: (1) redacting one’s name from a judgment acquitting them is in fact counterproductive where there are other tarnishing publications in the public domain, (2) access to Court judgments are integral to “open justice”, subject to some exceptions, for example, protecting the identity of victims and if disclosure of identity would imperil fair trial, (3) the affirmation of the ruling in R Rajagopal v. State of Tamil Nadu in the Puttaswamy judgment, which held that the right to privacy cannot affect matters of public record, (4) a writ of mandamus cannot be issued by a HC against itself, (5) a HC is a Court of record, which prevents the prerogative power of the court under Article 226 extending to direct alteration of its own records, (5) without statutory backing, specific rules, or basic criteria, it would be better for the Court to wait for the enactment of legislation before pronouncing any judgment on this issue, as it would create a lack of uniformity in an already unsatisfactory criminal justice system.

In my view, this judgment, and its deviation from the prima facie observation in the interim order, solves certain issues that were concerning about the Court’s initial observations.

Firstly, the respondents impleaded suggested that the focus of the petitioner, and consequently the Court, would not only be on the availability of his name on a search result but rather to create a broader precedent on requests for redaction within the machinery of the court system itself. Such an approach would have been a significant departure from the Delhi HC’s approach, which, as I argued previously, seems to strike a balance by ordering de-linking of the judgment from access through search engines rather than taking it down entirely or redacting any portion of it. This could have led to contradictions on the scope of the RTBF, especially considering the vastly varying approaches put forward during final arguments. However, the restraint of the Court in this matter has prevented such a situation from occurring which is a positive step.

The interim order cited the Delhi HC’s order as an example for “directing the concerned websites to redact the name of the petitioner therein”. This was an incorrect reliance, given that the interim relief in the Delhi HC order only pertained to de-linking. Were the petitioner’s relief to be granted here in Madras, it would have amounted to a broader RTBF which erases information at the source. The conflation of these important distinctions adds to the line of judgments I listed in my previous post, which have each arrived at a different interpretation. When legislation is enacted, this is unlikely to bode well for either the right to privacy, or judicial transparency. I would have hoped that the Court in its judgment would have clarified this conceptual distinction, and not doing so was a missed opportunity to consider the types of reliefs that can work in different contexts.

Another significant clarification required is the Court’s reliance on the Puttaswamy judgment in the interim order. While it was right to locate the RTBF within the fundamental right to privacy under Article 21, the Court goes a step further to say that “If the essence of this Judgment is applied to the case on hand obviously even a person, who was accused of committing an offence and who has been subsequently acquitted from all charges will be entitled for redacting his name from the order passed by the Court in order to protect his Right of Privacy.”

This observation, along with the resulting conclusion that there was a prima facie case for redaction in the interim order, was problematic. The Puttaswamy judgment does not lay down any laws pertaining to the RTBF. In Justice Kaul’s concurring opinion, he considers that the RTBF can be brought under the umbrella of the right to privacy. He states that if India were to recognize a similar right, it should only be exercised where the personal information is no longer necessary, relevant, and serves no legitimate interest.

The Puttaswamy judgment does not account for the distinction between de-linking from initial pages of search engines or a broader right to erasure. Therefore, any reliance on the “essence” of the judgment as “obviously” providing the petitioner with a right to redaction in this case is in my opinion, was premature and erroneous. I would have hoped that the Court would have clarified the same in its judgment as well, although it is positive that the Court has recognized that the RTBF is not yet a law, and that is a cause for exercising restraint especially due to the ramifications.

Another potentially problematic observation in the interim order was where the Court considered how there is legislation protecting the identities of victims, primarily women and children, but the same right has not been extended to an accused person who is ultimately acquitted, and that harm to reputation can be caused by information available online. I would argue this cannot be a viable parallel to draw, which the Court seems to have broadly recognized in its judgment.

The observations in the interim order and through the course of final arguments suggested that the Court wanted to create a broader right for any person who is acquitted, as opposed to the Delhi HC’s narrower approach on de-linking, which in itself has several issues for consideration and concern. I am against such a broader right, at the very least until there is legislation to this effect, and therefore, agree with the Court’s final judgment.

In the case of judicial transparency, it is important that Courts consider criticisms that experts have expressed about the RTBF in the Indian context, especially in matters involving sexual offences. It is worth considering questions about the right of an acquitted person to move past their reputation as an accused and their right to privacy and autonomy as a general guideline in support of rehabilitation.

On the other hand, any protection of a person’s reputation invoking the RTBF has to be balanced with public interest in having access to that information despite an acquittal, rights of victims, systemic biases and oppression prevalent in the adjudication of certain categories of offences, inequality in access to justice, and the potential for such factual information becoming relevant in future. Another important consideration is that there is a possibility for the matter to be overturned on appeal, and if so, is significant from a societal and public interest perspective given that it is a sexual offence.

Redacting the names of accused persons comes with the need for the Court to delve into considerations of public interest, gravity and nature of the offence, maturity of the petitioner, and demarcate the specific types of cases and scope where acquittal itself is a ground for the petitioner’s RTBF to be upheld. Conducting a balancing test is also emphasized in the BN Srikrishna Report on the PDP Bill.

While the Court has regrettably not explored these aspects, I am in agreement with its observation that a broader principle was undesirable here, in the interest of judicial transparency. In my opinion, such a principle would likely invite litigation from those with influence and means, regardless of the circumstances of the acquittal and what evidence or perceptions it was based on. It’s important that the RTBF be interpreted considering realities on the ground. The Court in its judgment has recognized that the Indian criminal justice system is rife with “judgments of acquittal due to slipshod investigation, dishonest witnesses and lack of an effective witness protection system.” This is an important observation in the context of the RTBF especially for graver offences.

Any superficial analysis was likely to increase burden on an already overburdened court system. In addition, it would have removed an entire option for case searches from Court websites based on the name of parties. In my view, it could also lead to cases where petitioners request the amendment of the content of a judgment if they feel those facts have been sufficiently disproven. This has significant implications given that High Courts are courts of record, which the Court has noted in its observations.

While I am broadly in agreement with the judgment, I would stress that in making any prima facie determination (whether in the context of an interim injunction, relief, admitting a writ petition, listing or issuing notice), there is a case to be made for a more detailed analysis given the difficulty in drawing bright line rules about the RTBF and the impact that interim orders can have on the duration of a case.

This judgment and the Court’s observations are especially welcome given recent developments such as the use of the DMCA to take down judgments on Indian Kanoon, and a petition filed in the Delhi HC for removal of details of the petitioner’s past altercations from the internet. The latter is particularly problematic given the implication of the petitioner that the RTBF should be stretched broadly to silence all past events of one’s life, at their option. A far more nuanced approach is required, considering the purpose of the information, relevance to the public, freedom of speech, among several other aspects. The Madras HC’s reasoning paves the way for a more balanced approach to the RTBF vis-à-vis judicial transparency, albeit with some opportunities for more clarity.

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