THE RIGHT TO BE FORGOTTEN – REDACTION OF NAMES FROM JUDICIAL ORDERS NOT PERMISSIBLE IN THE ABSENCE OF STATUTORY PROVISIONS

Introduction:

In a significant judgment, in the case of Karthich Theodore v. The Registrar General, Madras High Court and Ors. [W.P.(MD) No.12015 of 2021], the Madras High Court has held that the right to be forgotten is not applicable to judgments delivered by Courts and there is no law in force to redact the name of a person acquitted on all charges.

Background:

The Petitioner was convicted for offences committed under Sections 417 and 376 IPC in the year 2011. In an appeal against the said judgment, the Petitioner was acquitted from all charges and by virtue of the same he can no more be identified as an accused or convict in the eyes of law.

The Petitioner stated that anybody who types his name in Google search is unfortunately able to access the concerned judgement wherein he has been labelled as an accused. The same causes a serious impediment to his reputation and accordingly he sought the Court’s leave to redact his name from the concerned judgement.

The Petitioner claimed a violation of his fundamental rights under Article 21 of the Constitution and the Court ruled that a prima facie case has been made out by the petitioner and he is entitled to his fundamental right to privacy as enshrined in Article 21 of the Constitution but in order to understand the various ramifications surrounding the present issue the Court invited various members of the Bar to assist the Court.

Analysis:

The Court had formed a prima facie opinion that the Petitioner is entitled to relief but after listening to the submissions made by the various members of the Bar and the learned Amicus Curiae, the Court remarked that it may prove to be counterproductive for a person to get their name erased from a judgment or order to prove their innocence, especially where there are other materials available in the public domain that pertains to damning their name when the criminal proceedings actually commenced.

Moving on to the substantial issues, the Court stated that the right to privacy has been declared to be an intrinsic part of Article 21 of the Constitution by the Supreme Court in the landmark judgment of K.S. Puttaswamy and Another v. Union of India Others, (2017) 10 SCC 1, [hereinafter as ‘Puttaswamy judgment’] similarly the right to reputation has also been declared to be an essential part of the Article 21.

The Court noted that India not only follows the Open Justice system but the said system has been identified as a central tenet of the rule of law and the principle not only entitles an individual to attend court as a spectator but also provides public access to the judgments of Courts. To further elaborate upon the same, the Court relied upon the judgment passed by the Supreme Court in the case of R. Rajagopal v State of Tamil Nadu (1994 6 SCC 632), wherein the Supreme Court stated that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. The said judgment was later acknowledged in the Puttaswamy judgment and affirmed the proposition that the records of the Courts in India are public records and therefore the right to privacy cannot subsist against them.

The Court also reiterated the proposition settled in the case of Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388, that a judicial order of a Court cannot violate fundamental rights under Part III of the Constitution and that the superior courts of justice do not also fall within the ambit of State or other authorities under Article 12 of the Constitution. Thus, the Petitioner’s claim that he was suffering a prejudice due to the judicial orders and therefore his Article 21 was getting violated does not hold good in law.

It is also pertinent to note that the Court distinguished the Indian legal system from that of the United States, where a Court order can mandate destruction of the entire records of an accused person who is acquitted from charges. Distinction was also made from the justice system that prevails in the European Union where the General Data Protection Regulation acts as a statutory mandate and provides for “the right to erasuer”.

However, the Court stated that even though a judicial order cannot be removed on the aforementioned ground of violation of Article 21 a statutory prohibition would act as an exception to the same. In this regards reliance was placed on various provisions like the Section 228-A IPC, Section 327(3) Cr.P.C, Section 23 of the POCSO Act, etc., which mandated that the identity of victims of rape and other sexual offences as well as the identities of certain witnesses cannot be disclosed. Thus, the Court recognized that the said exception is generally extended to the victims and witnesses but not the accused or convicts.

The only statutory mandate which provides for destruction of the entire criminal record and thereby clears the past identity of a person as an accused is the Juvenile Justice Act and the Rules thereunder. The Juvenile Justice Act not only provides that the entire records of a child must be erased, except in special circumstances, but also provides that all the reports must be treated as confidential. Therefore, the Juvenile Justice Act is an exception to the open justice principle and it is only under such specific statutory mandates that the records can be erased or kept confidential.

The court further stated that under the Indian legal system, a High Court is a Court of Record under Article 215 of the Constitution and is entitled to preserve the original record in perpetuity. Thus, the sanctity of an original record cannot be altered or otherwise dealt with except in a manner prescribed by law it is therefore it will be appropriate to await the enactment of the Data Protection Act and Rules thereunder so as to get an objective criterion and uniformity.

Conclusion:

The present case dealt with an important aspect, i.e., the rights of an accused, including those acquitted, under the Indian penal laws and differentiated the same with the rights available to victims. The Court reiterated that superior courts of justice do not fall within the purview of the State as per Article 12 of the Constitution and no violation of fundamental rights can be claimed against the same.

The Court concluded the present issue by stating that in the absence of any statutory backing the Court cannot pass an order to redact the name of a person acquitted on all charges.