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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.MUHAMED MUSTAQUE, SHOBA ANNAMMA EAPEN, JJ.
Vysakh K.G., S/o.Gokuldas - Appellant
Versus
Union Of India - Respondent
W.P.(C).Nos. 6687 of 2017, 20387 of 2018, 7642, 26500, 8174, 21917 of 2020, 2604, 12699, 29448 of 2021
Decided on : 22-12-2022
Constitution of India, 1950 - Section 226 21, 19(1)(a) - Special Marriage Act, 1954 - Indian Penal Code, 1860 - Section 354-D - Information Technology Act, 2000 - Section 67(B)(a)(b) - Protection of Children from Sexual Offences Act, 2012 - Section 15 - Indian High Courts Act, 1861 - Government of India Act of 1935 - Hindu Marriage Act, 1955 - Section 22 - Indian Evidence Act, 1872 - Section 74 - Protection of Personal Information - Right to Privacy - Whether in writ petitions filed which are not matters involving public interest, a party to that proceedings can seek an order to mask his/her name and address and that of party respondent(s) in cause title of judgment in order to protect his/her right to privacy, described as ‘right to be let alone’- Judgments are public records and, making them available to public to view through process of a search made online, cannot be found fault with - Para 63.
Finding of the Court :
Court is of firm view that Google cannot claim itself as a mere intermediary, allowing contents to appear for viewers or users in digital platform - Publication of any valid records is protected by Constitution as forming part of Article 19(1)(a), right to freedom of speech and expression - There is no difficulty for Google during era of advancement of AI to create a tool and identify particular data and remove same - If that is not done, it would really infringe claim based on right to be forgotten - Court declare that a claim for protection of personal information based on right to privacy cannot co-exist in an Open Court justice system - Court declare and hold that in family and matrimonial cases, arising from Family Court jurisdiction or otherwise and also in other cases where law does not recognise Open Court system, Registry of Court shall not publish personal information of parties or shall not allow any form of publication containing identity of parties on website or on any other information system maintained by Court if parties to such litigation so insist.
Result: Cases disposed of.
Certainly. Based on the provided legal document, the key points regarding the legal principles and policy considerations are as follows:
Judgments as Public Records: Court judgments are considered public documents and are accessible to the public, including online platforms, in accordance with established legal principles. This transparency is fundamental to the open court system and democratic accountability (!) (!) .
Right to Privacy vs. Open Court Principles: While individuals have a fundamental right to privacy, this right must be balanced against the public interest in transparency and the functioning of the judiciary. The right to privacy does not extend to preventing the publication of judgments in open courts unless specific laws or rules provide otherwise (!) (!) .
Distinction Between Privacy and Anonymity: Privacy involves controlling personal information, whereas anonymity involves concealing the identity of parties. Both are related but distinct concepts. Privacy rights include informational control over personal data, but this right is not absolute and must be balanced against the public interest and the principles of open justice (!) (!) .
Judicial Evolution and Democratic Function: The judiciary in India has evolved from colonial times into a democratic institution committed to transparency, accountability, and independence. Modern courts embrace ICT tools and live streaming to enhance transparency and public confidence, reinforcing the democratic role of the judiciary (!) (!) (!) .
Open Data and Transparency: Judicial data is part of the larger legal ecosystem and should be shared responsibly to promote transparency, accountability, and societal benefits. However, the data sharing must respect privacy rights, and there is a need for clear policies and regulations governing publication and access (!) (!) .
Right to Be Forgotten: Emerging as a facet of the right to privacy, the right to be forgotten allows individuals to seek erasure or de-indexing of personal data from digital platforms, especially search engines. This right is not absolute and is subject to legislative regulation, balancing personal privacy with public interest and freedom of expression (!) (!) (!) .
Legislative Role and Policy Framework: The formulation of clear, uniform standards and rules by the legislature is essential to regulate the publication of judgments, the handling of personal data, and the exercise of the right to be forgotten. Courts recognize their limitations and emphasize the legislative role in establishing norms for balancing privacy with transparency and open justice (!) (!) (!) .
Publication of Judgments and Personal Data: In family, matrimonial, and related cases, courts should take measures to protect the privacy of individuals by not publishing personal details if parties so request. When judgments are published online, appropriate masking or redaction of personal information should be implemented to respect privacy rights (!) (!) (!) .
Responsibility of Publishers and Search Engines: Publishers of judgments and search engines are expected to respect privacy rights and may be directed to de-index or redact personal data, especially in cases involving privacy concerns or where the right to be forgotten is invoked. The responsibility of intermediaries is recognized, but they are not solely liable if they act within legal and technological frameworks (!) (!) .
Transparency and Notice: The judiciary should provide clear notices regarding the publication of judgments and the handling of personal data. Informed consent and transparency are vital to uphold the rights of litigants and individuals involved in legal proceedings (!) (!) .
Limitations and Balancing Interests: The right to privacy is subject to restrictions when balanced against the public interest, the administration of justice, and the constitutional principles of open courts. Any encroachment must be justified by law, necessary, proportionate, and in pursuit of a legitimate aim (!) (!) .
Policy and Regulatory Gaps: There is an acknowledged need for comprehensive policies and regulations to govern the publication, indexing, and erasure of judgments and personal data in the digital space. The judiciary emphasizes the importance of legislative action to establish standards for balancing privacy rights with transparency and open justice (!) (!) .
Judicial Discretion and Future Framework: Courts may exercise discretion to order de-indexing or redaction of personal data after considering the circumstances, but such measures are not automatic. The development of legislative norms and guidelines is essential to provide clarity and consistency (!) (!) .
Protection of Privacy in Sensitive Cases: Special categories of cases, such as family, matrimonial, custody, and adoption proceedings, warrant enhanced privacy protections. Courts are encouraged to restrict publication of personal details to prevent invasion of privacy and uphold dignity (!) (!) .
Digital Eternity and Data Erasure: The permanence of online data poses challenges to privacy rights, especially concerning past judgments and records. The right to be forgotten encompasses the ability to erase or de-index personal information, but its application depends on legislative provisions and case-specific circumstances (!) (!) (!) .
In summary, the legal framework recognizes the importance of transparency, accountability, and open justice in the judiciary while emphasizing the need to protect individual privacy rights. The development of clear policies, legislative standards, and technological tools is crucial to balance these competing interests effectively.
JUDGMENT :
A.Muhamed Mustaque, J.
These cases present a question of seminal importance in judicial information policy followed by the Courts in India. They have been placed before us on a reference order of the learned Single Judge, Justice Anil K. Narendran in W.P. (C).No.6687/2017, dated 15/3/2021, to determine the questions involved, finally, by an authoritative pronouncement. In the detailed reference order running up to more than 80 pages, the learned single Judge referred the point of law to be answered by us, thus:
2. After the reference, some more cases not related to family matters, have also been placed before us for consideration. The points involved in these cases are related to the publication of Court judgments, other than judgments in which anonymity is protected under the law and allowing free access to such information.
3. The brief facts of each case are set out hereunder:
3.(i) W.P. (C) No. 26500 of 2020: Criminal proceedings were initiated against the petitioner for an offence punishable under Section 354-D Indian Penal Code in C.C.No.344/2015 on the file of the Judicial First Class Magistrate Court, Chavakkad.
Subsequently, in the Crl.M.C No.5477/2016 filed before this Court, the de facto complainant filed an affidavit stating that she does not wish to pursue the matter and consented to quash the entire proceedings. By judgment dated 7/9/2016, Crl.M.C No.5477/2016 was allowed and the proceedings in C.C.No.344/2015 were quashed. This judgment has been published by Indian Kanoon and indexed by Google.
The petitioner submits that the right to be forgotten being recognized as a part of the right to privacy and the judgment being of no public importance, there is no justification for it being in the public domain.
3.(ii). W.P. (C) No. 21917 of 2020: Petitioner, a Dentist by profession, was accused in Crime No. 1111 of 2013 of Kollam East Police Station, but was subsequently acquitted of all the charges in the year 2019. A bail order dated 9/5/2014 in Bail Application No. 2662 of 2014 in the above proceedings was published by the website Indian Kanoon, and the same appears on a search on Google. The petitioner also submits that the order on Indian Kanoon incorrectly states the crime number.
Relying upon the judgment of Justice K.S.Puttaswamy (Retd) and another v. Union of India and Others [(2017) 10 SCC 1], the petitioner submits that the right to privacy includes the right to be forgotten. In light of which, the petitioner is entitled to the protection of his fundamental right to privacy and has a right to erase contents that are unnecessary, irrelevant, inadequate or no longer relevant.
3.(iii). W.P (C) 8174 of 2020: The first petitioner (P1) is the mother and the second
petitioner (P2) is her daughter, who is an MBBS student. The petitioners submit that in the year 2014, when P2 was wrongfully detained and confined, P1 filed a habeas corpus petition. Subsequently, P2 was released and the writ petition [W.P. (Crl) 266/2014] was closed. The grievance of the petitioners is that judgment in the above writ petition is published by Indian Kanoon on its
Judgments forming part of Court records are public documents as referable under Section 74 of Indian Evidence Act.
The judgment establishes that the right to privacy, including the right to be forgotten, is a fundamental right under Article 21 of the Constitution of India, and courts have the discretion to redact....
The central legal point established in the judgment is the recognition of the right to be forgotten for an acquitted accused, emphasizing the right to live with dignity and the need to enable the int....
The main legal point established in the judgment is the need to balance the freedom of speech and expression with the right to privacy and reputation, emphasizing that the right to privacy, reputatio....
The right to privacy includes the right to be forgotten, allowing individuals acquitted of charges to remove their names from public records and mitigate the impacts of past allegations on their futu....
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