The present case has raised an important question as to whether an accused person who on being charged for committing an offence and having undergone trial and ultimately been acquitted of all charges by a Court of competent jurisdiction, has the right to seek for destruction or erasure or redaction of their personal information from the public domain. The other important question that arises for consideration is if such a right is traceable to Article 21 of the Constitution of India (“the Constitution”) as a right to privacy which is an intrinsic part of the right to life and personal liberty, and hence an enforceable right as held by the Hon'ble Supreme Court inK.S.Puttaswamy and Another v. Union of India Others reported in (2017) 10 SCC 1, and whether in light of the same, this Court can set out guidelines in exercise of its jurisdiction under Article 226 of the Constitution?
17. In India the principle of open justice has been identified as a central tenet of the rule of law. The principle, however, is not monolithic, and encompasses various precepts. In Swapnil Tripathi v. the Supreme Court of India (2018 10 SCC 639), D.Y Chandrachud, J identified the following elements:
i. The entitlement of an interested person to attend Court as a
spectator;
ii. The promotion of full, fair and accurate reporting of court
proceedings;
iii. The duty of Judges to give reasoned decisions; and
iv. Public access to judgments of Courts.
24.The crux of the petitioner’s case is that the continued reflection of his name as an accused in the judgment of this Court in Cr.A (MD) 321 of 2011 is a violation of his right to privacy under Article 21 of the Constitution or more specifically, its subset, the right to be forgotten. However, it is a settled position of law that a judicial order of a Court cannot violate fundamental rights under Part III of the Constitution. In Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388, a Constitution Bench of the Supreme Court observed as under:
“It is pointed out above that Article 32 can be invoked only for the purpose of enforcing the fundamental rights conferred in Part III and it is a settled position in law that no judicial order passed by any superior court in judicial proceedings can be said to violate any of the fundamental rights enshrined in Part III. It may further be noted that the superior courts of justice do not also fall within the ambit of State or other authorities under Article 12 of the Constitution.”
By virtue of this judgment also, the prayer in the writ petition cannot be acceded to.
31.There must be a proper policy formulated in this regard by means of specific rules. In other words, some basic criteria or parameters must be fixed, failing which, such an exercise will lead to utter confusion. This Court must take judicial notice of the fact that the criminal justice system that is prevalent in this country is far from satisfactory. In various cases involving heinous crimes, this Court helplessly passes orders and judgments of acquittal due to slipshod investigation, dishonest witnesses and lack of an effective witness protection system. This Court honestly feels that our criminal justice system is yet to reach such standards where courts can venture to pass orders for redaction of name of an accused person on certain objective criteria prescribed by rules or regulations. It will be more appropriate to await the enactment of the Data Protection Act and Rules thereunder, which may provide an objective criterion while dealing with the plea of redaction of names of accused persons who are acquitted from criminal proceedings. If such uniform standards are not followed across the country, the constitutional courts will be riding an unruly horse which will prove to be counterproductive to the existing system.
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
W.P.(MD) No.12015 of 2021
Karthick Theodre Vs The Registrar General,
CORAM:
MR.JUSTICE N.ANAND VENKATESH
PRONOUNCED ON : 03.08.2021
Prayer: Writ Petition is filed under Article 226 of the Constitution of India, for
issuance of a Writ of Mandamus, to direct the Respondents No.1 to 3 to redact
the name and other identities of the petitioner herein in the judgement dated
30.04.2014 in Crl.A(MD).No.321/2011 on the file of this Court and accordingly
direct that Respondent No.4 to redact the same in their respective publication of
the same.
The present case has raised an important question as to whether an
accused person who on being charged for committing an offence and having
undergone trial and ultimately been acquitted of all charges by a Court of
competent jurisdiction, has the right to seek for destruction or erasure or
redaction of their personal information from the public domain. The other
important question that arises for consideration is if such a right is traceable to
Article 21 of the Constitution of India (“the Constitution”) as a right to privacy
which is an intrinsic part of the right to life and personal liberty, and hence an
enforceable right as held by the Hon'ble Supreme Court inK.S.Puttaswamy and
Another v. Union of India Others reported in (2017) 10 SCC 1, and whether in
light of the same, this Court can set out guidelines in exercise of its jurisdiction under Article 226 of the Constitution?
2.The background of this case has been set out in the earlier Order passed by this Court on 16.07.2021 and it will be beneficial to extract the same hereunder:
1. Mr.K.Samidurai, learned counsel takes notice
for the respondents 1 to 3.
2. The petitioner faced criminal proceedings for
an offence under Sections 417 and 376 of I.P.C., and he
was convicted and sentenced by the Trial Court by
Judgment dated 29.09.2011. The petitioner took this
Judgment on appeal before this Court and this Court
after dealing with the merits of the case and exhaustively
dealing with the law governing the case, acquitted the
petitioner from all charges in a Judgment made in Crl.A.
(MD).No.321 of 2011, dated 30.04.2014. By virtue of
this Judgment, the petitioner has been acquitted from all
charges and the petitioner can no more be identified as
an accused in the eye of law.
3. Today, the world is literally under the grips of
social media. The background of a person is assessed by
everyone by entering into the Google search and
collecting the information. There is no assurance that the
information that is secured from the Google is authentic.
However, it creates the first impression and depending
upon the data that is provided, it will make or mar the
characteristics of a person in the eyes of the Society.
Therefore, in today's world everyone is trying to portray
himself or herself in the best possible way, when it
comes to social media. This is a new challenge faced by
the World and already everyone is grappling to deal with
this harbinger of further complexities awaiting mankind.
4. The petitioner is now facing a very peculiar
problem. Even though the petitioner had been acquitted
from all the charges, his name gets reflected in the
Judgment rendered by this Court and unfortunately,
whoever types the name of the petitioner in Google
search is able to access the Judgment of this Court. In
the entire Judgment, the petitioner is identified as an
accused even though he has been ultimately acquitted
from all charges. According to the petitioner, this causes
a serious impact on the reputation of the petitioner in the
eyes of the Society and therefore, the petitioner wants
his name to be redacted from the Judgment of this Court.
5. It is brought to the notice of this Court that the
Central Government is in the process of finalising the
Data Protection Bill 2019 and it is yet to come into
effect. This Act when brought into force will effectively
protect the data and privacy of a person.
6. Till now, the Legislature has enacted laws
protecting the identity of victims, who are women and
children and their names are not reflected in any order
passed by a Court. Therefore, automatically their names
get redacted in the order and no one will be able to
identify the person, who is a victim in a given case. This
sufficiently protects the person and privacy of the
person. This right has not been extended to an accused
person, who ultimately is acquitted from all charges.
Inspite of an order of acquittal, the name of the accused
person gets reflected in the order. Therefore, for the first
time, a person, who was acquitted of all charges has
approached this Court and sought for redacting his name
from the Judgment passed by this Court.
7. For the present, this Court can act upon the
request made by the petitioner only by placing reliance
upon Article 21 of the Constitution of India. After the
historic Judgment of the Hon'ble Supreme Court in
Puttasamy Vs. Union of India, the Right of Privacy has
now been held to be a fundamental right, which is
traceable to Article 21 of the Constitution of India. If the
essence of this Judgment is applied to the case on hand,
obviously even a person, who was accused of
committing an offence and who has been subsequently
acquitted from all charges will be entitled for redacting
his name from the order passed by the Court in order to
protect his Right of Privacy. This Court finds that there
is a prima facie case made out by the petitioner and he is
entitled for redacting his name from the Judgment
passed by this Court in Crl.A. (MD).No.321 of 2011.
However, since the issue has come up for the first time
before this Court, this Court wants to hear the learned
counsel appearing on behalf of the respondents 1 to 3
and also the Members of the Bar and understand the
various ramifications before writing a detailed Judgment
on this issue.
8. It is also brought to the notice of this Court that
when a similar issue came up before the Delhi High
Court recently, interim orders were passed directing the
concerned websites to redact the name of the petitioner
therein. It is also informed to this Court that a new Right
called as Right to be Forgotten is sought to be included
in the list of Rights that are already available under
Article 21 of the Constitution of India.
9. The learned counsel for the respondents 1 to 3
shall take necessary instructions and file written
submissions after serving a copy to the learned counsel
appearing for the petitioner.
10. Registry is directed to post this case for final
arguments on 28.07.2021 at 2.15 P.M.. Registry is
further directed to publish this order in the Advocate
Associations and Bar Associations both in the Principal
Bench and Madurai Bench. The members of the Bar are
requested to assist this Court in this issue.
3.The above order was circulated widely to all the Advocate Associations
and Bar Associations and many advocates positively responded to the call made
by this Court resulting in a five hour “marathon”hearing on 28.07.2021.
Submissions were made from various perspectives and the effective
submissions that emanated from a vibrant bar made it an enriching experience.
This Court with all humility must acknowledge the fact that if not for the
assistance of the members of the Bar, this Court could not have gained insight
into the various facets of this issue to come to a fair conclusion.
4.This Court, apart from having the advantage of hearing the learned
counsel for the petitioner and Mr.K.Samidurai, who appeared on behalf of the
High Court Registry, also had the advantage of hearing the following counsel,
either appearing on behalf of the Associations or as Amicus to assist the Court.
1 Mr.Gandhi Madurai Bench of Madras High Court Bar Association.
2 Mr.V.S.Kanthi Madras High Court Madurai Bench Advocates Association.
3 Mr.G.Mariappan Madurai Bar Association.
4 Mr.Sanjay Pinto
5 Mr.R.Thirumoorthy
1 Mr.Gandhi Madurai Bench of Madras High Court Bar Association.
6 Mr.J.Anandhavalli
and
Mr.B.Saravanan
Women Advocate Association.
7 Mr.D.Selvam
8 Mr.K.Samidurai Respondent
9 Mr.Abudu Kumar
10 Mr.G.Balasubramanian
11 Mr.Duraipandian
12 Mr.ArunAnbumani
13 Mr.Sharath Chandran
14 Mr.K.K.Ramakrishnan
15 Mr.K.P.S.PalanivelRajan
16 Mr.R.Suresh Kumar
5. Every counsel in unison reverberated the undisputable position of law
that the right to privacy is protected as an intrinsic part of the right to life and
personal liberty under Article 21 and as a part of the freedoms guaranteed by
Part III of the Constitution. As a result of the same and by virtue of the
authoritative pronouncement of the Hon'ble Supreme Court in
K.S.Puttaswamy's case referred supra, the right to privacy is a fundamental
right. It was also submitted that, the present issue involves a right to reputation
which is inherent to the right to life protected under Article 21 of the
Constitution. To add strength to this submission, Shakespeare's Othello was
cited where in Act II, Scene iii, 167: Shakespeare would say “Good name in
man and woman, dear my lord,Is the immediate jewel of their souls; Who steals
my purse, steals trash; ‘tis something, nothing; 'Twas mine, ‘tis his, and has
been slave to thousands: But he that filches from me my good name Robs me of
that which not enriches him and makes me poor indeed.”
6.It was also impressed upon this Court that under the Code of Criminal
Procedure, 1973 (“the Code”),the Criminal Court after taking the evidence,
examining the accused, hearing the prosecution and the defence, considers that
there is no evidence that the accused committed the offence and finds the
accused not guilty, records an order of acquittal. The language used under
Section 232, 248 and 255 of the Code, was relied upon to add strength to this
argument. To explain the phrase “The Judge shall record an order of acquittal”,
the judgment of the Hon'ble Supreme Court in Dilip Kumar Sharma And
Others v. State of Madhya Pradesh reported in (1976) 1 SCC 560, was relied
upon and the relevant portion is extracted hereunder:
“33.There is authority for the proposition that an
order of acquittal particularly one passed on merits, wipes
off the conviction and sentence for all purposes, and as
effectively as if it had never been passed. An order of
acquittal annulling or voiding a conviction operates from
nativity. As Kelson puts it, "it is a true annulment, an
annulment with retroactive force." So when the conviction
of Rohit for Prabhu's murder, was quashed, the High
Court-to borrow the felicitous words of Krishna lyer
J.-'Killed the conviction not then, but performed the formal
obsequies of the order which had died at birth”.
7.It was further submitted that a judgment of acquittal gives the accused a
right of getting an automatic expungement of his name from all records and
particularly from those which are within public domain.
8.The peculiarity of seeking redaction of the name of an accused persons
who have been acquitted, has essentially gained significance due to the
development of science and technology that has virtually brought everything
under the sky to the fingertips of any person who may have access to the
internet. The search engines provide information about any person and
whatever information is available in the “Cloud” can be accessed by anyone.
Therefore, since the orders and judgments are easily available on the public
domain and can be conveniently accessed by the touch of a button, it is causing
a serious impact on the reputation and privacy of a person. A person despite
getting acquitted after facing criminal trial has their name reflected in the order
or judgment as an accused which identity they want this world to forget.
9. At the outset, this Court came to a prima facie conclusion that an
accused person is entitled to have their name redacted from the judgments or
orders and more particularly the ones that are available in the public domain
and which are accessible through search engines. However, this Court felt that
there may be ramifications if such a generalised order is passed and directions
are issued. In other words, this Court felt that there are certain finer aspects
which have to be considered failing which, it may open up flood gates. The
need for assistance from the Bar therefore seemed imperative. Initially, this
Court was inclined towards right to privacy, right of reputation and right to live
with dignity being read to have a wide scope. The Court felt that it had to come
to the rescue until the legislature ultimately enacts the Data Protection Act.
However, on a deeper review of the issue, this Court has taken cognisance of
the fact that the same is not as simple and straight as it sounded.
10.There is no doubt with regard to the fact that the moment Judge
records an order of acquittal, the identity of a person as an accused is
completely wiped out. This effect takes place due to the operation of law.
However, while undertaking the process of redaction, a Court is called upon to
literally strike of the name of the person from the order or judgment which
recorded the acquittal of the person from the criminal proceedings. In short, an
identity which has already been wiped out by operation of law is sought to be
wiped out at a gross level wherever there is reference to the name in the order
or judgment. One other question that solicits the attention of this Court is at
which level of jurisdiction should the process of redaction be done. Is it at the
trial court stage or at the appellate stage or at the revisional stage and how
should it be done in cases which have already concluded and become a part of
record.
11.Mr.Arun Anbumani, who was one of the Amicus, brought to the
attention of this Court a very important point for consideration. The learned
counsel rightly argued that this Court is only looking at the end product of a
criminal litigation, which is the final judgment or an order of acquittal which
gets published. The learned counsel submitted that the damage to reputation or
dignity starts right from the day a complaint is given, a FIR is registered, an
accused gets remanded and when they face trial. At every stage, there is a
publication and while seeking for redaction, none of these publications will be
touched. The learned counsel further submitted that it is only an order or
judgment of acquittal which actually saves the honour of a person whose name
has already been tarnished due to various publications that take place and which
are also readily available on the search engines.
12.There is a lot of force in this submission made by Mr.Arun Anbumani.
This country does not have a system like the one that is available in United
States, where through a Court order there can be complete destruction of the
entire records of an accused person, who is acquitted. Such person can start
their life tabula rasa and lead a normal life with the rights provided by the
Constitution, including the right to fill nil in the relevant employment
application column for criminal records. In other words, the entire personal
information gets expunged/destroyed and sealed from the public domain. If
the system is looking for identifying an effective right for a person acquitted in
a criminal proceeding, it must be a consummate relief and there is no use in
just erasing the name in a final judgment or order. In fact, it may prove to be
counterproductive for a person to get their name erased from a judgment or
order to prove their innocence, where there are other materials available in
public domain, which pertains to damning their name when the criminal
proceedings actually commenced.
13.There is only one enactment which provides for the complete
destruction of the entire criminal record which ultimately removes the person
from their identity as an accused person. The said enactment is “The Juvenile
Justice [Care and Protection of Children] Act, 2015” and Rules thereunder, and
the same are extracted hereunder:
1. Section 3(xiv) - Principle of fresh start: All past
records of any child under the Juvenile Justice system
should be erased except in special circumstances.
2. 24. (1) Notwithstanding anything contained in any
other law for the time being in force, a child who has
committed an offence and has been dealt with under the
provisions of this Act shall not suffer disqualification, if
any, attached to a conviction of an offence under such law:
Provided that in case of a child who has completed or is
above the age of sixteen years and is found to be in conflict
with law by the Children’s Court under clause (i) of subsection
(1) of section 19, the provisions of sub-section (1)
shall not apply. (2) The Board shall make an order
directing the Police, or by the Children’s court to its
own registry that the relevant records of such
conviction shall be destroyed after the expiry of the
period of appeal or, as the case may be, a reasonable
period as may be prescribed:
Provided that in case of a heinous offence where the
child is found to be in conflict with law under clause (i) of
sub-section (1) of section 19, the relevant records of
conviction of such child shall be retained by the Children’s
Court.
99. (1) All reports related to the child and
considered by the Committee or the Board shall be
treated as confidential: Provided that the Committee or
the Board, as the case may be, may, if it so thinks fit,
communicate the substance thereof to another Committee
or Board or to the child or to the child’s parent or guardian,
and may give such Committee or the Board or the child or
parent or guardian, an opportunity of producing evidence
as may be relevant to the matter stated in the report.
(2) Notwithstanding anything contained in this Act,
the victim shall not be denied access to their case record,
orders and relevant papers.
The Rule on destruction of records is traceable to
Section 110(1)(xiii)
Rule 14 - Destruction of records – The records of
conviction in respect of a child in conflict with law shall be
kept in safe custody till the expiry of the period of appeal
or for a period of seven years, and no longer, and thereafter
be destroyed by the Person-in-charge or Board or
Children's Court, as the case may be:
Provided that in case of a heinous offence where the
child is found to be in conflict with law under clause (i) of
sub-section (1) of section 19 of the Act, the relevant
records of conviction of such child shall be retained by the
Children's Court”.
14.There is yet another issue with far reaching importance that arises in
the present case that directly impacts one of the Central and universally
acclaimed tenets of administration of justice viz., the principle of open justice.
15. The rationale for the indispensable principle that justice must be done
in the open is best captured in the words of Jeremy Bentham who observed
“In the darkness of secrecy sinister interest, and evil in every
shape, have full swing. Only in proportion as publicity has place can any
of the checks applicable to judicial injustice operate. Where there is no
publicity there is no justice. Publicity is the very soul of justice. It is the
keenest spur to exertion, and surest of all guards against improbity. It
keeps the Judge himself while trying under trial (in the sense that) the
security of securities is publicity”
Well over a century ago, this principle was firmly cemented as a fundamental
facet of the system of administration of justice by the House of Lords in Scott v
Scott [1913 A.C 417]. Viscount Haldane pointed out that the general principle is
that Courts must administer justice in public. There were, however, some
exceptions like matrimonial cases, cases relating to minors etc. which required
a departure from this principle. The rationale for the exceptions were premised
on a more fundamental principle that the chief object of courts of justice must
be to do justice between parties. Therefore, in cases like minors and
matrimonial disputes, where publicity may be harmful to the subject matter of
the lis, the principle of open justice must yield to the still more paramount duty
to do justice. After all, publicity is only a means to an end.
16.In R (Guardian News and Media Ltd) v City of Westminster
Magistrates’ Court (Article 19 intervening) [2013 QB 618], Lord Toulson
offered the rule of law justification in support of the principle of open justice.
The learned judge observed:
“Open justice. The words express a principle at the heart of our
system of justice and vital to the rule of law. The rule of law is a fine
concept but fine words butter no parsnips. How is the rule of law itself to
be policed? It is an age old question. Quiscustodietipsoscustodes—who
will guard the guards themselves? In a democracy, where power depends
on the consent of the people governed, the answer must lie in the
transparency of the legal process. Open justice lets in the light and
allows the public to scrutinise the workings of the law, for better or for
worse.”
17. In India the principle of open justice has been identified as a central
tenet of the rule of law. The principle, however, is not monolithic, and
encompasses various precepts. In Swapnil Tripathi v. the Supreme Court of
India (2018 10 SCC 639), D.Y Chandrachud, J identified the following
elements:
i. The entitlement of an interested person to attend Court as a
spectator;
ii. The promotion of full, fair and accurate reporting of court
proceedings;
iii. The duty of Judges to give reasoned decisions; and
iv. Public access to judgments of Courts.
The learned judge went on to observe thus:
“Public confidence in the judiciary and in the process of judicial
decision making is crucial for preserving the rule of law and to maintain
the stability of the social fabric. Peoples' access to the court signifies
that the public is willing to have disputes resolved in court and to obey
and accept judicial orders. Open courts effectively foster public
confidence by allowing litigants and members of the public to view
courtroom proceedings and ensure that the Judges apply the law in a fair
and impartial manner.”
It can, therefore, be taken as an established position of law that public access to
judgments of Courts is an integral precept of the concept of open justice,
promoting the rule of law.
18.The existence of the right to privacy as an enforceable fundamental
right under Part III of the Constitution is no longer open to doubt in view of the
authoritative pronouncement of a 9-judgeBench of the Hon’ble Supreme Court
in K.S Puttaswamy’s Case, referred supra. The Supreme Court overruled its
earlier decision in M.P Sharma v Satish Chandra [AIR 1954 SC 300] and the
majority view in Kharak Singh v State of Uttar Pradesh [AIR 1963 SC 1295],
and concluded as under:
“The right to privacy is protected as an intrinsic part of the right
to life and personal liberty under Article 21 and as a part of the freedoms
guaranteed by Part III of the Constitution.”
19. While there can be no dispute that a fundamental right of privacy
exists at a general level in the light of the judgment of the Hon’ble Supreme
Court in K.S Puttaswamy’s case, the question that has now cropped up is
whether such a right exists in the context of judgments and orders of a Court. In
R. Rajagopal v State of Tamil Nadu (1994 6 SCC 632), the Hon’ble Supreme
Court held as under:
“26. We may now summarise the broad principles
flowing from the above discussion:
(1) The right to privacy is implicit in the right to life
and liberty guaranteed to the citizens of this country by
Article 21. It is a “right to be let alone”. A citizen has a
right to safeguard the privacy of his own, his family,
marriage, procreation, motherhood, child-bearing and
education among other matters. None can publish anything
concerning the above matters without his consent —
whether truthful or otherwise and whether laudatory or
critical. If he does so, he would be violating the right to
privacy of the person concerned and would be liable in an
action for damages. Position may, however, be different, if
a person voluntarily thrusts himself into controversy or
voluntarily invites or raises a controversy.
(2) The rule aforesaid is subject to the exception,
that any publication concerning the aforesaid aspects
becomes unobjectionable if such publication is based
upon public records including court records. This is for
the reason 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. We are, however, of the opinion that
in the interests of decency [Article 19(2)] an exception
must be carved out to this rule, viz., a female who is the
victim of a sexual assault, kidnap, abduction or a like
offence should not further be subjected to the indignity of
her name and the incident being publicised in
press/media.
(3) There is yet another exception to the rule in (1)
above — indeed, this is not an exception but an
independent rule. In the case of public officials, it is
obvious, right to privacy, or for that matter, the remedy of
action for damages is simply not available with respect to
their acts and conduct relevant to the discharge of their
official duties. This is so even where the publication is
based upon facts and statements which are not true, unless
the official establishes that the publication was made (by
the defendant) with reckless disregard for truth. In such a
case, it would be enough for the defendant (member of the
press or media) to prove that he acted after a reasonable
verification of the facts; it is not necessary for him to prove
that what he has written is true. Of course, where the
publication is proved to be false and actuated by malice or
personal animosity, the defendant would have no defence
and would be liable for damages. It is equally obvious that
in matters not relevant to the discharge of his duties, the
public official enjoys the same protection as any other
citizen, as explained in (1) and (2) above. It needs no
reiteration that judiciary, which is protected by the power
to punish for contempt of court and Parliament and
legislatures protected as their privileges are by Articles
105 and 104 respectively of the Constitution of India,
represent exceptions to this rule.
(4) So far as the Government, local authority and
other organs and institutions exercising governmental
power are concerned, they cannot maintain a suit for
damages for defaming them.
(5) Rules 3 and 4 do not, however, mean that
Official Secrets Act, 1923, or any similar enactment or
provision having the force of law does not bind the press or
media.
(6) There is no law empowering the State or its
officials to prohibit, or to impose a prior restraint upon the
press/media.”
20.The decision in R.Rajagopal has been affirmed by the 9-judge bench
in K.S Puttaswamy’s case. In fact, the opinions of D.Y Chandrachud, J (for
himself and Khehar, C.J, Agrawal and Nazeer, JJ) and R.F Nariman, J expressly
cite and approve the aforesaid principles from R.Rajagopal’s case. It must,
therefore, follow that judgments of courts being public records, the right to
privacy cannot subsist. The concurring judgment of S.K Kaul, J also recognizes
this position. At paragraph 636, the learned judge took note of what has now
come to be termed as “the right to be forgotten” and has opined thus:
“If we were to recognise a similar right, it would
only mean that an individual who is no longer desirous of
his personal data to be processed or stored, should be able
to remove it from the system where the personal
data/information is no longer necessary, relevant, or is
incorrect and serves no legitimate interest. Such a right
cannot be exercised where the information/data is
necessary, for exercising the right of freedom of expression
and information, for compliance with legal obligations, for
the performance of a task carried out in public interest,
on the grounds of public interest in the area of public
health, for archiving purposes in the public interest,
scientific or historical research purposes or statistical
purposes, or for the establishment, exercise or defence of
legal claims. Such justifications would be valid in all cases
of breach of privacy, including breaches of data privacy.”
21.There can be no two opinions that the administration of justice is a
task carried out in public interest. In the context of judgments of Courts, Justice
Mathew felicitously points out in Gurdit Singh v. State of Punjab, (1974) 2
SCC 260:
“A judgment of a court is an affirmation, by the
authorised societal agent of the state, speaking by warrant
of law and in the name of the state, of the legal
consequences attending a proved or admitted state of facts.
Its declaratory, determinative and adjudicatory function is
its distinctive characteristic.”
22.It would, therefore, follow that the “right to be forgotten” cannot exist
in the sphere of administration of justice particularly in the context of
judgments delivered by Courts. An exception to the aforesaid position can be
seen in cases of victims of rape and other sexual offences where the Supreme
Court itself has directed that the identity of victims cannot be disclosed [See
Nipun Saxena v Union of India, 2019 2 SCC 703]. Statutory prohibitions
against the disclosure of the identity of the victim and witnesses are also found
in provisions like Section 228-A IPC, Section 327(3) Cr.P.C, Section 23 of the
POCSO Act, etc. Thus, unless a case falls within the ambit of the exceptions,
the general principle must govern.
23. It may also be necessary to take note of the powers of the High Court
under Article 226 for issuing suitable directions for non-disclosure during the
course of trial if there is a real and substantial risk that disclosure would imperil
fair trial. In such cases the High Court can pass “postponement orders”
deferring publication and that too only for a short period during the trial. The
principles in this regard are clear from the decision of the Constitution Bench of
the Supreme Court in Sahara India Real Estate Corpn. Ltd. v. SEBI, (2012) 10
SCC 603:
“In the light of the law enunciated hereinabove,
anyone, be he an accused or an aggrieved person, who
genuinely apprehends on the basis of the content of the
publication and its effect, an infringement of his/her rights
under Article 21 to a fair trial and all that it comprehends,
would be entitled to approach an appropriate writ court
and seek an order of postponement of the offending
publication/broadcast or postponement of reporting of
certain phases of the trial (including identity of the victim
or the witness or the complainant), and that the court may
grant such preventive relief, on a balancing of the right to
a fair trial and Article 19(1)(a) rights, bearing in mind the
above mentioned principles of necessity and
proportionality and keeping in mind that such orders of
postponement should be for short duration and should be
applied only in cases of real and substantial risk of
prejudice to the proper administration of justice or to the
fairness of trial. Such neutralising device (balancing test)
would not be an unreasonable restriction and on the
contrary would fall within the proper constitutional
framework.”
24.The crux of the petitioner’s case is that the continued reflection of his
name as an accused in the judgment of this Court in Cr.A (MD) 321 of 2011 is a
violation of his right to privacy under Article 21 of the Constitution or more
specifically, its subset, the right to be forgotten. However, it is a settled position
of law that a judicial order of a Court cannot violate fundamental rights under
Part III of the Constitution. In Rupa Ashok Hurra v. Ashok Hurra, (2002) 4
SCC 388, a Constitution Bench of the Supreme Court observed as under:
“It is pointed out above that Article 32 can be
invoked only for the purpose of enforcing the fundamental
rights conferred in Part III and it is a settled position in
law that no judicial order passed by any superior court in
judicial proceedings can be said to violate any of the
fundamental rights enshrined in Part III. It may further be
noted that the superior courts of justice do not also fall
within the ambit of State or other authorities under Article
12 of the Constitution.”
By virtue of this judgment also, the prayer in the writ petition cannot be
acceded to.
25.There is yet another hurdle in the path of the petitioner. The direction
sought by the petitioner is to redact his name from an order passed by a coordinate
bench of this Court in a regular criminal appeal. In effect, the prayer is
that a writ of mandamus must be issued against a judgment and order passed by
this Court in exercise of its criminal appellate jurisdiction to alter the
description of the petitioner in the cause title and the body of the judgment. In
Naresh Sridhar Mirajkar v State of Maharashtra (AIR 1967 SC 1), it was
conclusively held that a writ does not lie to an order of a Court placed on an
equal footing in the matter of jurisdiction. Justice Hidayatullah observed thus:
“It was suggested that the High Courts might issue
writs to this Court and to other High Courts and one Judge
or Bench in the High Court and the Supreme Court might
issue a writ to another Judge or Bench in the same Court.
This is an erroneous assumption. To begin with the High
Courts cannot issue a writ to the Supreme Court because
the writ goes down and not up. Similarly, a High Court
cannot issue a writ to another High Court. The writ does
not go to a court placed on an equal footing in the matter
of jurisdiction. Where the county court exercised the
powers of the High Court, the writ was held to be wrongly
issued to it (see New Par Consols Ltd., In re [(1898) 1 QB
669 : 67 LJQB 598 : 78 LT 312 (CA)] ).”
26. The position was put beyond any pale of controversy in Rupa Ashok
Hurra v. Ashok Hurra, (2002) 4 SCC 388, wherein it was observed as follows:
“Having carefully examined the historical
background and the very nature of writ jurisdiction, which
is a supervisory jurisdiction over inferior courts/tribunals,
in our view, on principle a writ of certiorari cannot be
issued to coordinate courts and a fortiori to superior
courts. Thus, it follows that a High Court cannot issue a
writ to another High Court, nor can one Bench of a High
Court issue a writ to a different Bench of the same High
Court; much less can writ jurisdiction of a High Court be
invoked to seek issuance of a writ of certiorari to the
Supreme Court.”
27.The jurisdiction and powers of the Madras High Court flowing from
the Letters Patent of 1865 is channelled through different benches for the
purposes of administrative convenience and orderly conduct of business. Thus,
any judicial order, irrespective of the nature of jurisdiction and the strength of
the Bench, is, in effect, the order of the High Court as one institution. The
position is made clear by Clause 36 of the Letters Patent which runs as follows:
“36. Single Judges and Division Courts: - And we
do hereby declare that any function which is hereby
directed to be performed by the said High Court of
Judicature at Madras, in the exercise of its original or
appellate jurisdiction, may be performed by any Judge, or
by any Division Court thereof, appointed or constituted for
such purpose[in pursuance of Section 108 of the
Government of India Act, 1915] and in such Division
Court is composed of two or more Judges, and the Judges
are divided in opinion as to the decision to be given on any
point, such point shall be decided according to the opinion
of the majority of the Judges, if there shall be a majority,
but if the Judges should be equally divided,[They shall
state the point upon which they differ and the case shall
then be heard upon that point by one or more of the other
Judges and the point shall be decided according to the
opinion of the majority of the Judges who have heard the
case including those who first heard it]”
It is for this precise reason that any order, judgment summons, precepts etc., run
in the name of the High Court as one institution. Clause 7 of the Letters Patent
of 1865 states thus:
“7. Writs, etc., to issue in the name of the Crown, and
under seal: - And we do hereby further grant, ordain, and
appoint that all writs, summons, precepts, rules, orders
and other mandatory process to be used, issued or
awarded by the said High Court of Judicature at Madras,
shall run and be in the name and style of Us, or of Our
Heirs, and Successors and shall be sealed with the seal of
the said High Court.”
The point here is that since the High Court is one indivisible institution, a writ
cannot lie against a judgment or order passed by it for that would tantamount to
the High Court issuing writs against itself.
28.The High Court is a Court of Record under Article 215 of the
Constitution. As a superior Court of Record, it 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. No
judgment of any Court has been cited to show that the prerogative power of this
Court under Article 226 extends to direct alteration of its own records. In fact,
there exists a decision to the contrary in S. Tamilvanan v The State of Tamil
Nadu [1996 1 LW 577] where a judicial officer filed a writ petition and sought
expunging of remarks from a judgment rendered by a single judge of this Court.
The Division Bench took note of the judgment of the Hon’ble Supreme Court in
Naresh Mirajkar, cited supra, and ultimately concluded as under:
“Though we have held that the observations of the
learned Judge made in the judgment are only
administrative in character, in our opinion, it may not be
judicial propriety to quash the same in as much as it is
incorporated in a judicial order. Instead, it will be
sufficient if we declare that the said observations made
against the petitioner herein having been made without
notice to him will not be binding on the concerned
Administrative Committee or the Full Court and they
cannot be used against the petitioner for any purpose in
his career.”
29.During the course of deliberation, the attention of this Court was
drawn to various foreign judgments and also the relevant regulations and
enactments of those countries which specifically provides for expunction,
expungement, redaction or destruction of criminal records.
30. The Court is not unmindful of the decision of the Court of Justice for
the European Union (CJEU) in Google Spain SL v Agencia Española de
Protección de Datos (AEPD) (Case C-131/12) [2014] QB 1022 where Google
was directed to de-list information complained against from its servers. What
cannot be lost sight of is the fact that there exists a General Data Protection
Regulation (GDPR) for all European Union member states which has come into
effect from 27th April 2016. Article 17 of this Regulation is titled “Right to
erasure” and contains objective criteria which would guide a decision in
erasure. No such rule or regulation exists in India for the present. In the absence
of any statutory backing this Court cannot undertake the exercise of issuing
directions when no judicially manageable standards exist in the first place.
31.There must be a proper policy formulated in this regard by means of
specific rules. In other words, some basic criteria or parameters must be fixed,
failing which, such an exercise will lead to utter confusion. This Court must
take judicial notice of the fact that the criminal justice system that is prevalent
in this country is far from satisfactory. In various cases involving heinous crimes, this Court helplessly passes orders and judgments of acquittal due to slipshod investigation, dishonest witnesses and lack of an effective witness protection system. This Court honestly feels that our criminal justice system is yet to reach such standards where courts can venture to pass orders for redaction of name of an accused person on certain objective criteria prescribed by rules or regulations. It will be more appropriate to await the enactment of the Data Protection Act and Rules thereunder, which may provide an objective
criterion while dealing with the plea of redaction of names of accused persons who are acquitted from criminal proceedings. If such uniform standards are not followed across the country, the constitutional courts will be riding an unruly horse which will prove to be counterproductive to the existing system.
32.In view of the above discussion, this Court is not inclined to grant the
relief sought for in the writ petition and accordingly, the writ petition stands
dismissed. Before drawing the curtains, this Court will be failing in its duty if it
does not once again acknowledge the assistance rendered by the Bar in deciding
this sensitive and knotty issue. No costs. Consequently, the connected
miscellaneous petition is closed.
03.08.2021
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