ABC v. Union of India & Ors.(2021):- India’s right to be forgotten case .

Writ Petition No. 3499 of 2021                               28 February 2022

Bench :-  Justice Gautam S. Patel , Justice Madhav J. Jamdar

 Jurisdiction :- High Court of Judicature at Bombay,

INTRODUCTION

The  rapid  expansion of digital technologies and internet-based communication has transformed the manner in which personal information is created, stored, and disseminated and with easy access to all the information through websites social media and any other digital sources it would  be  easier for anyone to get any kind of  knowledge or information about anything. Especially related to legal knowledge any cases criminal or civil could be easily searched out within seconds hence , sometimes it may not be suitable for some people to have the digital records of their cases which is already being sorted out to be easily available online and people can view it because the matter is now solved but the case details could led to harm of the reputation of  the person who is trying  to live in society again  as they were before the case happened .

One of such cases is ABC v. Union of India & Ors.(2021) in which the person had suffered harm to his reputation and was denied to give job due to his criminal case background though he was held innocent , so he moved to Bombay court and asked for  the  removal of court order from website . The main question that arises is that wheather a person should have “ RIGHT TO BE FORGOTTEN “under article 21 of Indian constitution ? Although Indian law does not expressly recognises the Right to Be Forgotten as an independent fundamental right, its constitutional foundations can be traced to the recognition of the right to privacy as a fundamental right under Article 21 of the Constitution in Justice K.S. Puttaswamy (Retd.) v. Union of India (2017). The Supreme Court acknowledged informational privacy as an integral component of personal liberty and observed that the Right to Be Forgotten may constitute one of its facets. However, the Court did not comprehensively define the scope, limitations, or enforceability of this right, leaving its development largely to subsequent judicial interpretation.

This case commentary critically analyses the factual background, legal issues, judicial reasoning, and constitutional principles involved in ABC v. Union of India & Others , Writ Petition No. 3499 of 2021 . This case is considered as one of the landmark cases under the cyber law cases in India . The commentary also evaluates the judgment’s contribution to the evolving recognition of the Right to Be Forgotten in India and its implications for future legal and policy developments in the field of digital privacy.

FACTS OF CASE

The Petitioner is presently employed in a firm in Tokyo, Japan. In 2013, he was charged under Section 66A of the Information Technology Act, 2000 in a criminal case heard by the JMFC Court in Nagpur. The court passed the acquittal order in favour of the petitioner. The order was uploaded on the court’s website. The petitioner later realized that the presence of the court order of 2013 though it declared him innocent is causing serious damage to his reputation because despite the acquittal, the High Court’s order remained available online and was readily accessible through internet search engines. The petitioner contended that the continued public availability of the judgment caused serious prejudice to his reputation, dignity, and professional life.So whenever the petitioner applied for any job position, the employers don’t consider his application as the court order shows that he was involved in a criminal case. There is always a bias towards him, not considering the offender for the job position.  Hence, the petitioner has moved the Bombay High Court invoking writ jurisdiction praying for the removal of the court order/case details/judgment/URL in respect of the court order of 2013 from the court’s website or mask the name of the parties to the matter so as the various search inquiries would not be able to index the said order . He also requested temporary protection from the Court while it considered the important legal issues regarding his privacy, reputation, and the balance between an individual’s rights and the public’s right to access court judgments.

ISSUE PRESENTED BEFORE THE COURT

·  Whether the continued publication of the petitioner’s acquittal order on the Bombay High Court’s official website violated his fundamental right to privacy and dignity under Article 21 of the Constitution of India.

·   Whether an individual who has been acquitted in criminal proceedings can seek removal or restricted public access to court records available online by invoking the emerging Right to Be Forgotten.

·  Whether the petitioner’s right to privacy and reputation should prevail over the principles of open justice, judicial transparency, and the public’s right to access court records.

.·  Whether the permanent online availability of judicial records, despite an acquittal, causes disproportionate harm to an individual’s personal and professional life, thereby requiring judicial protection.

  ARGUMENTS BY PETITIONER (ABC)

The petitioner, who had been acquitted in a criminal case, approached the Bombay High Court seeking removal or masking of the acquittal judgment from the court’s website. His principal arguments were:

1. Violation of the Right to Privacy (Article 21)
   1. The continued publication of the acquittal order on the internet violated his constitutional right to privacy recognized in K. S. Puttaswamy (Retd.) v. Union of India.
   1. Even though the judgment recorded his acquittal, it permanently exposed details of the criminal prosecution.
2. Right to be Forgotten
   1. The petitioner argued that every individual has a “right to be forgotten,” meaning that after acquittal, information no longer serving a public purpose should not remain permanently searchable online.
   1. Search engines continued to display his name whenever employers conducted background checks.
3. Damage to Reputation
   1. Despite being declared innocent, prospective employers associated him with criminal proceedings merely because the judgment appeared in internet searches.
   1. The online availability of the judgment caused serious prejudice to his employment opportunities and professional reputation.
4. No Public Interest in Continuing Publication
   1. Since the criminal proceedings had concluded in acquittal, continued public accessibility of the judgment served little public interest.
   1. Therefore, the balance should favour protection of his dignity and privacy.
5. Relief Sought
   1. Removal of the judgment from the court website; or
   1. Masking/redacting his name; or
   1. De-indexing the judgment so that search engines would not display it in search results.

ARGUMENTS BY RESPONDENT (Union of India and Others)

The respondents, including the Union of India and judicial authorities, generally opposed complete removal of the judgment on these grounds:

1. Open Court Principle
   1. Judicial proceedings are conducted openly.
   1. Court judgments are public records and ordinarily remain accessible to ensure transparency and accountability.
2. Public Access to Judicial Records
   1. Publishing judgments promotes public confidence in the judicial system.
   1. Removing judgments merely because a litigant finds them inconvenient could undermine transparency.
3. Absence of Statutory Right
   1. India had no legislation expressly recognizing a general “Right to be Forgotten.”
   1. Therefore, courts should exercise caution before directing deletion of judicial records.
4. Need to Balance Competing Rights
   1. The respondents argued that privacy must be balanced against:
      1. freedom of speech and expression under Article 19(1)(a),
      1. public access to court records,
      1. the principle of open justice.
5. Technical and Administrative Concerns
   1. Court judgments form part of permanent judicial records.
   1. Deleting or altering them could create precedential and archival difficulties.

JUDGEMENT GIVEN BY COURT

The Hon’ble Bombay High Court found it as the issue of wide importance as it involved the right to be forgotten or the right to privacy. Both the rights were recognized under the historic judgment of KS Puttaswamy (Retd.) & Anr. V. Union of India & Ors. [2017 (10) SCC 1] (herein later referred to as KS Puttaswamy Case) as part of Article 21 of the Indian Constitution.According to the case  privacy includes the right to be left alone.  . The Court referred to para 168 of the KS Puttasway case, in which it was laid down that the  ability to make decisions on matters personal or close to human life is the absolute nature of the human personality. It is the autonomy of a person to decide what matters would be kept as private .If a person could not make such choices then he will no longer be inviolable . Hence, privacy is a mark of human dignity itself. Right to privacy preserves an individual’s thoughts, beliefs, ideas, choices etc. It protects the individual from the searching glare of publicity in matters which are personal to his or her life. Privacy is attached to the person and not to the place where it is associated..

The Hon’ble Court also observed that the Indian Constitution doesn’t contain any separate article declaring privacy as a fundamental right. The Part III of the Indian Constitution doesn’t tag the right to privacy anywhere. But It should be understood that privacy is essential to uphold the dignity of a person and dignity is core of fundamental right .It should be noted that a person lives and works in community and hence his social surrounding is affected by his personality  if the persons reputation is harmed then it would be difficult for him to live and work in the society .

In the present case, the Petitioner has prayed only for the removal of the court order from the court’s website and not to destroy the court record. He just wants to pull down the public access to such court orders and nothing else, the availability of  which leads to a wrong impression about the person on the people who encounter such judgment.  However, the Court clearly mentioned that this Judgement won’t act as a precedent for further cases of similar nature and is confined to the facts of this case only. Each case must be decided on its own facts and circumstances . 

The Hon’ble Bombay High Court held in favour of the petitioner and directed the Registry to issue the necessary directions to remove the order and judgment pertaining to the petitioner’s criminal case of 2013 from the website. The original records of the case will be maintained and must be dealt in accordance with the Rules regarding the destruction of records in the normal course. If in case, anyone wants to access such records, must make a request by filing an affidavit and explaining the reason behind accessing such records. The court has also directed that the copy of the present order under this writ petition shall not be uploaded on the High Court Website. But they also stated that the provision of RIGHT TO BE FORGOTTEN will not be absolute .

The Ratio Decidendi (the legal principle forming the basis of the decision) can be stated as follows:

The fundamental right to privacy guaranteed under Article 21 includes the right to protect an individual’s dignity, reputation, and personal autonomy in the digital environment. Therefore, where continued publication of an acquittal judgment on a court’s website causes disproportionate prejudice to an acquitted person’s reputation and serves no overriding public interest, the High Court may exercise its constitutional jurisdiction to direct masking, anonymisation, or removal of such information after balancing the competing principle of open justice.

  Critical Analysis of ABC v. Union of India (2021)

The decision in ABC v. Union of India (2021) is a landmark development in Indian privacy law as it recognizes the Right to Be Forgotten (RTBF) as an essential aspect of the fundamental right to privacy under Article 21 of the Constitution. The judgment reflects the judiciary’s effort to adapt constitutional protections to the challenges posed by the digital age.

A major strength of the judgment is its protection of individual dignity and privacy. The Court acknowledged that permanent online availability of personal or intimate information can cause continuous emotional, psychological, and reputational harm. By recognizing RTBF, the Court ensured that individuals have a legal remedy against the indefinite circulation of sensitive personal information.

The judgment is also significant because it extends the principles laid down in Justice K.S. Puttaswamy v. Union of India to the digital environment. It reinforces that privacy is not limited to physical spaces but includes informational privacy and control over one’s personal data. This interpretation strengthens constitutional protection against technological misuse.

Another positive aspect is the Court’s victim-centric approach. It provides greater protection to victims of non-consensual publication of intimate content, particularly women, by directing online intermediaries to remove such material. This promotes digital safety and upholds the constitutional value of human dignity.

However, the judgment is not without criticism. One of its major weaknesses is the absence of clear guidelines regarding the scope and application of the Right to Be Forgotten. The Court did not establish objective criteria for determining which information should be removed, leaving considerable discretion to future courts. This may lead to inconsistent judicial decisions.

The decision also creates tension between privacy and freedom of speech and expression under Article 19(1)(a). While protecting privacy, the Court did not provide a comprehensive balancing test to determine when public interest, journalistic freedom, or the public’s right to know should prevail over an individual’s request for erasure.

Another practical limitation is the difficulty of enforcing the Right to Be Forgotten. Even after court orders, information may continue to exist on foreign websites, archived pages, mirror sites, or through repeated sharing. Therefore, complete removal of online content is often technically impossible, reducing the practical effectiveness of the remedy.

The judgment also raises concerns regarding the possibility of misuse. Public officials, politicians, or influential individuals could attempt to invoke RTBF to suppress truthful information about their conduct, thereby affecting transparency, accountability, and freedom of the press. Without clear statutory safeguards, such misuse cannot be entirely ruled out.

Furthermore, because the judgment was delivered before a comprehensive data protection law was fully in place, it relied primarily on constitutional principles. This highlights the need for detailed legislation to define the scope, limitations, procedures, and safeguards governing the Right to Be Forgotten.

Observations of the Court in ABC v. Union of India (2021)

The Delhi High Court made the following important observations:

1. Right to Be Forgotten is a part of the Right to Privacy: The Court observed that the Right to Be Forgotten and the Right to Be Left Alone are integral components of the fundamental right to privacy guaranteed under Article 21 of the Constitution.
2. Protection of Human Dignity: The Court emphasized that every individual has the right to preserve their dignity, reputation, and autonomy. The continued online availability of intimate or personal information without consent amounts to an infringement of these rights.
3. Digital Permanence Causes Continuing Harm: The Court recognized that the internet allows personal information to remain accessible indefinitely, causing ongoing emotional, psychological, and social harm to affected individuals.
4. Responsibility of Online Intermediaries: The Court observed that search engines and online platforms have a duty to comply with lawful judicial directions for the removal or disabling of access to content that violates an individual’s privacy.
5. Privacy Prevails Over Unnecessary Public Access: The Court held that where the publication of personal information serves no legitimate public interest, the individual’s right to privacy should prevail over unrestricted public access to such information.
6. Need for Effective Judicial Protection: The Court observed that constitutional courts have the authority to grant appropriate remedies to safeguard privacy, even in the absence of specific legislation recognizing the Right to Be Forgotten.
7. Balancing of Rights: Although recognizing the Right to Be Forgotten, the Court implied that it is not an absolute right. It must be balanced against competing interests such as freedom of speech and expression, public interest, and the right to information.

Key Observation:-

 The Court effectively held that in the digital age, the constitutional guarantee of privacy includes the ability of an individual, in appropriate cases, to seek the removal or restriction of access to personal information that unnecessarily violates their dignity and serves no overriding public interest.

Conclusion (Case Commentary)

ABC v. Union of India (2021) marks a significant milestone in the development of India’s privacy jurisprudence by affirming that the Right to Be Forgotten is an integral part of the fundamental right to privacy under Article 21 of the Constitution. The judgment recognizes that in the digital era, the continued online availability of personal and intimate information can seriously affect an individual’s dignity, reputation, and autonomy. By directing the removal of such content, the Court provided meaningful protection to victims of privacy violations and reinforced the constitutional value of human dignity.

At the same time, the decision leaves important legal questions unresolved, particularly regarding the balance between privacy and freedom of speech, the public’s right to information, and the practical enforcement of the Right to Be Forgotten. The absence of comprehensive legislative guidelines means that future courts will play a crucial role in defining the scope and limitations of this right.

Overall, ABC v. Union of India is a progressive and rights-oriented judgment that reflects the judiciary’s responsiveness to emerging digital challenges. However, its long-term effectiveness depends on the development of a clear statutory framework that harmonizes privacy rights with constitutional principles of free expression, transparency, and public interest.

Author: Kairavi Mishra
Year of Study: 1st Year B.A. LL.B. (Completed)
College: C.M.P. Degree College, University of Allahabad