ON MAY 29, the Delhi High Court, in a batch of petitions contesting the accessibility of individuals’ court records through a simple search engine query online, held that informational privacy lies at the core of the right to privacy in the age of digital permanence and constitutes an individual’s right to be forgotten. The Court additionally recognised de-indexing and masking as available remedies, to be applied in accordance with the specific facts of each case.
The judgment was pronounced by Justice Sachin Datta.
Background
The batch of petitions included petitioners with strikingly varied factual circumstances. One was a spouse whose name had appeared in criminal proceedings solely by virtue of their marital connection to the accused, with no personal involvement in the case. Another had been convicted by a court in the United Kingdom, served the sentence, and been released in 2021. A third was a practising doctor, a recognised figure in the fight against HIV-AIDS, who had subsequently been discharged from charges of illegally procuring medicines from abroad and mishandling HIV patients. A fourth had been acquitted of allegations of sexual offences.
Despite these differences, the petitioners by a common prayer that URLs be removed and their names de-linked from search engine results. Each of them, in different ways, found that their present lives continued to bear the weight of past judicial proceedings that had either not resulted in conviction, or whose consequences had already been formally concluded because they remained easily discoverable online, inviting stigma and moral judgment.
What both parties argued
The petitioners argued that once information is uploaded to the internet, it becomes permanently accessible to anyone across the world. They relied on K.S. Puttaswamy v. Union of India (2017), which recognised privacy, including informational privacy, as an intrinsic part of Article 21 of the Constitution. They also drew on the Court of Justice of the European Union's decision in Google Spain v. Mario Costeja Gonzalez (2014), where the Court allowed the de-indexing of articles that were inadequate or irrelevant which also inspired the European Union’s General Data Protection Regulation, 2016, which formally recognised the ‘right to be forgotten’. The petitioners warned that the unrestricted availability of personal information online causes tangible harm such as loss of employment, damage to creditworthiness, and erosion of dignity and reputation. They urged the Court to lay down clear standards for the removal of information that is no longer necessary or relevant.
The High Court held that the right to be forgotten which originates from Article 21 is inclusive of an individual’s right to seek removal or restriction of personal information when the same serves no legitimate purpose.
The respondents included parties such as Google, X Corp. (formerly Twitter), Microsoft Corporation India Pvt. Ltd., the Ministry of Electronics and Information Technology (‘MEITY’), iKanoon, several media houses, and the Registrar General of the Delhi High Court.
Google and X Corp. raised a preliminary objection that as private entities, they fall outside the definition of ‘State’ under Article 12, and therefore a writ petition alleging violation of Article 21 cannot lie against them. Google further argued that it is neither the creator nor the publisher of the content in question, which was authored and published by entirely separate third parties. It relied on R. Rajgopal v. State of Tamil Nadu (1994) for the proposition that the right to privacy does not apply to information that has entered the public record including judicial orders, criminal proceedings, arrests, and reporting on them. Google also pointed out that Indian law does not explicitly recognise a right to be forgotten, including under the Digital Personal Data Protection Act, 2023 (‘DPDP Act’), and that existing protections for anonymity, such as those under the Protection Of Children From Sexual Offences Act, 2012 and the Juvenile Justice Act, 2015, are confined to victims of sexual offences.
MEITY acknowledged the evolving nature of the right to be forgotten but maintained that judicial orders and judgments are by their nature public records and cannot be treated as confidential merely because they contain personal details. It mapped the journey of data through the framework of the DPDP Act, 2023, identifying the individual as the ‘data principal,’ the Court as the ‘data fiduciary,’ and digital platforms as ‘processors’ and argued that the Information Technology Act, 2000 cannot serve as a vehicle for the right to be forgotten, since the Union Government’s power to block content under that Act is limited to narrow statutory grounds such as national security and sovereignty.
The media houses collectively relied on R. Rajgopal, emphasising the press’ role as a public watchdog in a democracy and warning that the selective erasure of unfavourable information would distort public memory and undermine accountability.
iKanoon characterised the removal or de-linking of information as an endorsement of the private censorship of public documents, in violation of Article 19(1)(a). It clarified its own role as a mere intermediary with no power to author, control, or modify content, and relied on Kaushal Kishore v. State of Uttar Pradesh (2023) for the principle that restrictions on freedom of speech beyond those in Article 19(2) can only be imposed by the legislature. X Corp. questioned whether writ jurisdiction was the appropriate forum for disputes involving reputational harm or defamatory publication, and argued that the petitioners had failed to establish X Corp. as a necessary or proper party with any legally enforceable duty to remove content. Microsoft similarly absolved itself of liability for third-party content, arguing that only action by the original publishers, who hosted the content, could meaningfully result in its re-indexing and removal.
The Registrar General of the Delhi High Court, while acknowledging the right to privacy, noted that the Supreme Court had stayed a Madras High Court order directing the removal of a judgment on ‘right to be forgotten’, with the matter still pending adjudication. The Registrar General also pointed to the Delhi High Court’s own software, which carries out the masking of names whenever so ordered by the court.
The Court laid down three parameters to guide the determination of whether de-indexing or related mechanisms ought to apply in a given case.
What the Court held
The Delhi High Court rejected the preliminary objection of a writ of mandamus under Article 226 not being applicable to private entities in lieu of them not discharging any public function or duty. It noted that fundamental rights are enforceable even against persons other than the State or its instrumentalities, given the amplitude of threat by violation of informational privacy remains the same irrespective of the entity being a State actor or private entity. It held that the right to be forgotten which originates from Article 21 is inclusive of an individual’s right to seek removal or restriction of personal information when the same serves no legitimate purpose.
It traced the arc of the recognition of right to privacy and informational privacy under Article 21 from R. Rajagopal v. State of Tamil Nadu (1994) and PUCL v. Union of India (1997), the latter being a case where the legality of telephone tapping and surveillance was put to question, with the Court holding privacy as a crucial requisite of a person’s dignity and liberty. Further, the High Court divulged in Mr. X v. Hospital ‘Z’ (1998) where the Supreme Court walked on the tightrope of striking a balance between individual privacy vis-a-vis public interest, finally negating the idea that the right to privacy existed as an absolute right. The arc came to a completion when the nine-judge bench in Justice K.S. Puttaswamy v. Union of India (2017) recognised the right to privacy as a constitutional guarantee under Article 21, subject to reasonable restrictions.
The Delhi High Court acknowledged the permanence of digital records contrasting it with an individual’s struggle to remain in control of the information which is circulated about him in the immortal world of the digital space. The Court recognised that in the pre-digital age, a judgment’s availability was only limited to a ‘diligent searcher’ as opposed to the digital era, where the same judgement is made available at the mere entry of the name of the party into the search engine. It noted that there lies a direct conflict between the right to be forgotten and the public’s right to information. However, it ultimately opined that ‘open justice’ is satisfied since the maintenance of court records which are made accessible by case numbers, citations, do not require an individual’s name as an easy retrieval mechanism to enable any user of the internet to gain an unchecked access to an individual’s relation with a legal proceeding.
With respect to the accountability of search engines, the Court did not accept Google’s argument of passive and neutral functioning. It observed that Google actively collects, organizes the personal data through name based search results and derives revenue through the same. To do so, it placed reliance on the judgment given in Hurbain v. Belgium (2023).
The Court elaborated on the three-pronged test devised in Justice K.S. Puttuswamy (2017) which encompasses ‘that any encroachment on the right to privacy must satisfy legality of such an encroachment, with such an encroachment having a legitimate aim and that it must be proportionate to the objective which is sought to be achieved’. In light of this test, it highlighted the redundancy of ‘unrestricted name based searchability of records’ especially where proceedings have been long resolved in favour of the petitioner.
The Court acknowledged ‘de-indexing and masking’ as appropriate mechanisms to moderate the unchecked accessibility of such information. It relied on XXXX v. High Court of Karnataka (2024) which had held that “the direction would be only to enable the internet to forget like the humans forget as if it is allowed to stay on record, the internet will never permit the humans to forget.” The High Court noted de-indexing not as a deletion of the judicial record but only as a mechanism which reduces the accessibility of such records, which usually remain at the perusal of a casual internet user by a simple entry of name of the individual or entity.
It also elaborated on ‘masking’ as another mechanism opted by the courts wherein a party’s name is replaced with a neutral name or reference in the ‘publicly accessible digital version’ of the judgment while keeping intact the original version in court’s internal records.
The High Court noted that ‘open justice’ is satisfied since the maintenance of court records which are made accessible by case numbers, citations do not require an individual’s name as an easy retrieval mechanism.
Parameters to apply on de-indexing
The Court laid down three parameters to guide the determination of whether de-indexing or related mechanisms ought to apply in a given case.
The first is the character of the information and the outcome of the concluded proceedings, requiring courts to examine the nature of the information sought to be removed and the result of the legal proceedings to which it relates. The second is the public role of the individual wherein the mechanism would not be available in respect of acts performed by a public figure in the exercise of their public role, recognising that accountability norms operate differently for those who have voluntarily entered public life. The third is the accuracy and continuing relevance of the information; where information has become inadequate or irrelevant, its continued accessibility through search engines would attract the remedy of de-indexing. It also established that de-indexing would not be appropriate if carried out in cases which have led to clear convictions in offences against women or children, or involving breach of public trust, especially those who function in positions of ‘fiduciary responsibility’.
The Court extended the territorial scope of de-indexing to cover all versions and domains of the concerned search engine, not merely its India-specific domain, reasoning that limiting de-indexing to the country’s territorial extent would render the remedy futile, since the information would remain accessible through other versions of the same search engine.
Masking, however, operates differently. Since it involves directions to a court’s registry, the jurisdiction is confined to the Court exercising supervisory authority over its own records. On masking, the Court held that the relief would operate retrospectively, covering only names and personal identifiers while leaving the substance of the judgment intact. The original, unmasked version, it noted, would be preserved in the Court’s repository.
The Court then proceeded to apply these principles to each petition according to its distinct facts.