By Lucy Rana and Rima Majumdar
The need to protect one’s data and ensure that personal privacy is maintained, is something we all hope to have in our lives. However, someone entangled in litigation may also wish to have the same form of privacy. Case details, party names, and other identity-related information can be easily accessed over the internet, as most of this information comes into the public domain once the case is filed (with the exception of certain kinds of cases). This can be difficult for parties who are either victim of criminal offences or perhaps have been acquitted after trial.
‘Right to be Forgotten’ and ‘Right of Eraser’- part of one’s right to privacy
The plea of one’s right to be forgotten has been discussed by various High Courts in India before, and as such is not a new point of law. Recently, in a short but significant order stressing on the importance of ‘right to be forgotten’ and ‘right of eraser’ being part of one’s right to privacy, the Hon’ble Supreme Court of India in the case of XXXX vs. Kancherla Durga Prasad & Ors. has directed its Registry that, personal information of a Petitioner and a Respondent in a sexual harassment case be masked on the internet so that their details are not thrown up by search engines.
Detailed analysis on ‘Right to be Forgotten‘ .
Facts of the case
The petition was filed seeking the relief of masking/removal of the Petitioner and Respondent No. 1’s name, address, identification details and case numbers from being visible in search engines. It was the case of the Petitioner that her name being displayed in public domain with regard to offences committed on the modesty of women and sexually transmitted diseases (STD), has caused her loss, infringement of her personal privacy, and social stigma.
After hearing the submissions of the petitioner (and the respondent, who had joined in on the request made by the petitioner), the Hon’ble Court directed its Registry to examine the issue and to work out a way by which the names of both the Petitioner and Respondent No. 1, along with their address details, can be masked so that they do not appear visible for any search engine. In order to achieve the same, the Registry was given three weeks’ time from the date of the order.
It is pertinent to note here that the Supreme Court, in the case of Nipun Saxena vs. Union of India & Ors. had issued specific directions to the media, police, Special Courts as well as to the Registries of Courts, directing them not to disclose in any manner, the name and identities of victims of rape, sexual harassment, and victims of offences under the POCSO Act. These directions are as under:
- No person can print or publish in print, electronic, social media, etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.
- In cases where the victim is dead or of unsound mind the name of the victim or her identity should not be disclosed even under the authorization of the next of the kin, unless circumstances justifying the disclosure of her identity exist, which shall be decided by the competent authority, which at present is the Sessions Judge.
- FIRs relating to offences under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of IPC and offences under POCSO shall not be put in the public domain.
- In case a victim files an appeal under Section 372 CrPC, it is not necessary for the victim to disclose his/her identity and the appeal shall be dealt with in the manner laid down by law.
- The police officials should keep all the documents in which the name of the victim is disclosed, as far as possible, in a sealed cover and replace these documents by identical documents in which the name of the victim is removed in all records which may be scrutinised in the public domain.
- All the authorities to which the name of the victim is disclosed by the investigating agency or the court are also duty bound to keep the name and identity of the victim secret and not disclose it in any manner except in the report which should only be sent in a sealed cover to the investigating agency or the court.
- An application by the next of kin to authorise disclosure of identity of a dead victim or of a victim of unsound mind under Section 228A (2)(c) of IPC should be made only to the Sessions Judge concerned until the Government acts under Section 228A(1)(c) and lays down a criteria as per our directions for identifying such social welfare institutions or organisations.
- In case of minor victims under POCSO, disclosure of their identity can only be permitted by the Special Court, if such disclosure is in the interest of the child.
- All the States/Union Territories are requested to set up at least one ‘one stop centre’ in every district within one year from today.
From the order passed by the Hon’ble Supreme Court in the present petition, it cannot be ascertained if the petitioner was the victim of the offence alleged or she was one of the parties to the original criminal proceedings. For that matter, the reporting of the said order in public domain was also done by masking the name of the petitioner; perhaps in order to keep alive the letter and spirit of the direction given to the Registry for taking appropriate steps.
This order of the Hon’ble Supreme Court comes at a time when, due to the growth of the internet and social media, the boundaries of one’s privacy and personal life are getting blurred. The right to be forgotten has been pleaded by many in the last few years, before different courts of the country. Although it appears that the Supreme Court has taken reliance of its 2017 judgment on the right to privacy, while dealing with the present case, the thing that remains to be pondered upon whilst dealing with such cases is, striking a balance between one’s right to privacy and the overall need to maintain judicial transparency.
 SLP (Crl) No. 3211/2022
 Writ Petition (Civil) No. 565/2012