Preserving the Record: On the Right to Be Forgotten

Editorial Summary

The Delhi High Court, in a landmark 144-page judgment by Justice Sachin Datta (delivered on May 29, 2026), recently recognised the right to be forgotten as an integral facet of the fundamental right to privacy under Article 21 of the Constitution. The court directed search engines (including Google) and legal database platforms (including Indian Kanoon) to de-index name-based searches in specified cases — primarily acquitted persons and parties in settled matrimonial or private civil disputes. The Hindu editorial welcomes the judgment while cautioning that its implementation requires nuanced frameworks that do not erode transparency, judicial accountability, or freedom of the press.

What Is the Right to Be Forgotten?

The right to be forgotten (RTBF) — also known as the right to erasure — is the right of an individual to have personal data, digital records, or online information about them removed from search indexes and databases when that information is outdated, irrelevant, or no longer serves a legitimate public purpose.

Key Distinction

The Delhi HC Judgment (May 29, 2026)

What the Court Held

1. RTBF flows from Article 21 — the right to privacy (per K.S. Puttaswamy v. Union of India, 2017) includes a right to informational privacy that extends to digital records
2. Courts can enforce RTBF even without specific legislation — constitutional courts’ inherent powers under Articles 226 and 32
3. Name-masking in judgments — personal identifiers (names, addresses) may be masked in publicly available judgments while the legal reasoning remains accessible
4. De-indexing from search engines — Google and similar platforms must comply with court-directed de-indexing orders
5. De-indexing from legal databases — Indian Kanoon (and similar platforms) must comply similarly

Who Benefits?

• Persons acquitted of criminal charges
• Parties to matrimonial disputes where the case is settled
• Parties to private civil disputes with no ongoing public interest

Who Is Excluded?

• Public officials and politicians — public interest in accountability overrides RTBF
• Cases involving serious crimes (murder, sexual assault) — public safety and victim rights outweigh perpetrator’s RTBF claims
• Ongoing proceedings — active cases cannot be de-indexed

The India Legal Gap: DPDP Act 2023

India’s Digital Personal Data Protection Act (DPDP), 2023 contains a limited version of the right to erasure under Section 13 — individuals can request erasure of their personal data from a Data Fiduciary when it is no longer necessary for the purpose it was collected. However:

• Courts are NOT data fiduciaries under DPDP — so judicial records are outside DPDP’s scope
• Search engines are not clearly covered as data fiduciaries in the context of indexing third-party content
• No specific RTBF framework exists — the Delhi HC judgment fills this legislative vacuum

Comparison: EU’s GDPR Article 17

The EU’s General Data Protection Regulation (GDPR) provides the most developed RTBF framework (Article 17):

• Individuals can request erasure of personal data in specific circumstances
• Search engines (Google) must de-index search results upon valid requests
• Google has processed 5+ million RTBF requests in the EU since 2014

India’s framework, post the Delhi HC judgment, is narrower (limited to judicial records) but establishes the constitutional foundation for a broader legislative framework.

Editorial’s Key Concerns

1. Verification burden: Who verifies that a RTBF claimant is genuinely acquitted? Courts must prevent frivolous applications.
2. Press freedom: Newspapers and news archives also carry court reporting — does RTBF extend to de-indexing news articles? The judgment does not fully resolve this.
3. Judicial transparency: Masking names in judgments reduces the transparency that allows for legal research, precedent analysis, and accountability.
4. India needs legislation: The court judgment is a workaround; a comprehensive RTBF statute (possibly as part of the DPDP framework) is essential.

UPSC Relevance

Prelims

• Constitutional basis: Article 21 (Right to Privacy — per K.S. Puttaswamy 2017)
• Court: Delhi High Court; Judge: Justice Sachin Datta
• Judgment date: May 29, 2026
• Platforms directed: Google, Indian Kanoon
• India’s data law: DPDP Act, 2023
• EU equivalent: GDPR Article 17

Mains Angles

1. GS2 — Fundamental Rights: Analyse the evolution of the right to privacy under Article 21. How does the right to be forgotten test the limits of this right?
2. GS2 — Judiciary: Examine the role of the higher judiciary in filling legislative gaps on digital rights. Is judicial policymaking an appropriate substitute for legislation?
3. GS2 — Freedom of Press vs. Privacy: The right to be forgotten and freedom of the press are in inherent tension. How should Indian law balance the two?

Facts Corner

Source: Preserving the Record: On the Right to Be Forgotten — Ujiyari.com | Free UPSC & State PCS Editorial Analysis