The Right to be Forgotten: Can the Law Really Let You Erase Your Past?
We often hear that “the internet never forgets.” For most people, this is just a saying. But for someone who was acquitted of a criminal charge years ago, or whose personal details keep showing up on a Google search, it becomes an actual legal problem, and a fairly serious one. This is where the idea we’re going to explore in this article comes in.
In this article, I have tried to trace where this right actually came from, how Indian courts have dealt with it (not always consistently, as we will see), what constitutional principles support it, and why India still doesn’t have a clear law on the subject.
Where Did the Right to be Forgotten Come From?
The Right to be Forgotten, despite how it’s discussed today, is not an Indian invention. It comes from Europe, specifically from the judgment of the Court of Justice of the European Union in Google Spain SL v. Agencia Española de Protección de Datos, Case C-131/12 (2014). The facts were fairly simple. Mario Costeja González had an old newspaper report about the repossession of his house. He had already cleared the debt years ago. Yet the article kept appearing every single time someone searched his name on Google. He wanted it taken down, and eventually approached the Court.
The CJEU sided with him, and this is the ruling most articles point to when explaining the Right to be Forgotten. It held that a person’s privacy interest can, in the right circumstances, outweigh the public’s general interest in accessing old information that no longer serves any real purpose. Google was directed to delink the article from search results tied to his name.
This case is now treated as the starting point for the whole doctrine, and Indian courts later borrowed from this reasoning when developing their own approach to privacy and personal data.
Indian Courts Have Not Been Consistent
India simply doesn’t have one settled law on the Right to be Forgotten, which is part of the problem. There are a handful of High Court decisions however, they don’t all agree with each other, which makes this a confusing area to study.
In Sri Vasunathan v. Registrar General, Karnataka High Court (2017). A father wanted his daughter’s name removed from a quashed criminal case because it kept showing up on Google and, in his view, could hurt her marriage prospects later. The Karnataka High Court allowed her name to be masked from online search results, even though it remained on the official court record. It was really the first time an Indian court acknowledged that people shouldn’t keep suffering because of information that no longer serves any public purpose.
The Gujarat High Court disagreed, sort of. In Dharamraj Bhanushankar Dave v. State of Gujarat (2017), it refused to grant similar relief and held that publishing a court judgment online does not violate Article 21, mainly because no law existed at the time that supported such a claim. It is a fair point technically, but it does leave one wondering whether courts were simply unwilling to create a right without Parliament stepping in first.
Then came Zulfiqar Ahman Khan v. Quintillion Business Media Pvt. Ltd. (2019), where the Delhi High Court took a more expansive view, holding that the Right to be Forgotten and the Right to be Left Alone are both part of the right to privacy.
So depending on which High Court you approach, you might get a completely different answer to the exact same problem. That is not a great place for the law to be in, especially when someone’s own digital identity is at stake.
The Constitutional Backing: Puttaswamy and Privacy
None of the later recognition of the Right to be Forgotten would have been possible without Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1, where the Supreme Court finally recognised privacy as a fundamental right under Article 21. The case itself was not about search engines or online data. It was much broader than that. But it did establish that privacy includes what is called informational privacy, that is, a person’s right to have some say over how their personal data is collected and used.
It is this idea of informational privacy, tied to dignity and autonomy, that later High Courts have relied upon to justify the Right to be Forgotten, even without a specific statute backing it. One could argue this is judicial creativity at its best. One could also argue it is judicial overreach, filling a gap that Parliament should have filled instead. Both views have some merit.
Privacy vs. Free Speech: Nobody Wins Outright
It would be misleading to suggest that the Right to be Forgotten simply overrides everything else, since it clearly doesn’t. There is a genuine conflict here between an individual’s privacy interest and the public’s right to information, along with freedom of speech under Article 19(1)(a). Courts have generally tried to balance the two rather than picking a clear winner, which is why relief has mostly been limited to sensitive situations, cases involving women, sexual offences, or facts where the information genuinely serves no ongoing public interest.
This is probably the correct approach in principle, though it does make the right somewhat unpredictable in practice, since so much depends on how a judge weighs “sensitivity” in a given case.
What About the New Data Protection Law?
The Digital Personal Data Protection Act, 2023 was supposed to bring some clarity here. It gives individuals a right to correction and a right to erasure of their personal data, though it stops short of naming the Right to be Forgotten directly, and introduces the concept of a Data Fiduciary who is responsible for handling that data, along with a Consent Manager mechanism.
The problem is that none of this expressly deals with the Right to be Forgotten as it has developed in the courts. The Act’s provisions are mostly aimed at private companies holding your data, not judicial records or content indexed by Google. So even after this law, courts are still left interpreting the constitutional position on their own, case by case, which is not exactly the clean solution one would have hoped for.
A Few Practical Problems That Remain
There isn’t really a neat list of solved issues here, more a list of things still unresolved. Courts still disagree on whether the Right to be Forgotten even applies to publicly available judgments. There is no clarity on how search engines operating in India are meant to comply with such orders. Balancing privacy against free speech is difficult, not something that can be reduced to a simple formula. Victims of online harassment, in particular, are still stuck without a quick legal remedy, since litigation in India rarely moves fast.
The biggest reason search engines have become the “first impression” of a person is simply convenience, everyone Googles a name before doing business with them, hiring them, or agreeing to marry into their family. That convenience is exactly why outdated information can do so much damage long after it stops being relevant.
Conclusion
The Right to be Forgotten in India is still very much a doctrine in progress, built mostly by courts rather than Parliament. That has its advantages, since courts can respond to specific injustices, but it also means the law is inconsistent depending on which High Court you happen to be standing in front of. It is essential that a statute is enacted to explain the right in a more concise manner.
Written By: Khushi Mittal
