Whether court can enforce the right to be forgotten of accused by directing Redaction Of Names Of Acquitted Persons From Records In Absence Of Statutory Backing?

 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

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Orissa HC recognizes Right To Be Forgotten: Allowing Videos/Photos Of Rape Victims To Remain On Social Media Is Violative Of Their Fundamental Right To Privacy

 

The Hon’ble Supreme

Court of India in the case of K.S. Puttaswamy v. Union of

India (supra) held that purpose limitation is integral for

executive projects involving data collection – unless prior

permission is provided, third parties cannot be provided access

to personal data.See Para 166 of K.S. Puttaswamy Judgment

This principle is embodied in S.5 of the yet to-

be-implemented Personal Data Protection Bill, 2019.

Purpose Limitation enhances transparency in data processing

and helps examine the proportionality of the mechanism used

to collect data for a specific purpose. Moreover, it prevents the

emergence of permanent data ‘architectures’ based on

interlinking databases without consent. In the present case

the proposition of purpose limitation is not applicable as the

question of seeking consent does not arise at all. No person

much less a woman would want to create and display gray

shades of her character. In most of the cases, like the present

one, the women are the victims. It is their right to enforce the

right to be forgotten as a right in rem. Capturing the images

and videos with consent of the woman cannot justify the

misuse of such content once the relation between the victim

and accused gets strained as it happened in the present case.

If the right to be forgotten is not recognized in matters like the

present one, any accused will surreptitiously outrage the

modesty of the woman and misuse the same in the cyber

space unhindered. Undoubtedly, such an act will be contrary

to the larger interest of the protection of the woman against

exploitation and blackmailing, as has happened in the present

case. The sloganeering of “betibachao” and women safety

concerns will be trampled.

14. Section 27 of the draft Personal Data Protection Bill, 2018

contains the right to be forgotten. Under Section 27, a data

principal (an individual) has the right to prevent continuing

disclosure of personal data by a data fiduciary. The aforesaid

provision which falls under Chapter VI (Data Principal Rights)

of the Bill, distinctly carves out the "right to be forgotten" in no

uncertain terms. In terms of this provision, every data

principal shall have the right to restrict or prevent continuing

disclosure of personal data (relating to such data principal) by

any data fiduciary if such disclosure meets any one of the

following three conditions, namely if the disclosure of personal

data:

(i) has served the purpose for which it was made or is no

longer necessary; or (ii) was made on the basis of the data

principal's consent and such consent has since been

withdrawn; or (iii) was made contrary to the provisions of the

bill or any other law in force.

In addition to this, Section 10 of the Bill provides that a

data fiduciary shall retain personal data only as long as may

be reasonably necessary to satisfy the purpose for which it is

processed. Further, it imposes an obligation on every data

fiduciary to undertake periodic reviews in order to determine

whether it is necessary to retain the personal data in its

possession. If it is not necessary for personal data to be

retained by a data fiduciary, then such personal data must be

deleted in a manner as may be specified.

15. In the instant case, prima facie, it appears that the

petitioner has not only committed forcible sexual intercourse

with the victim girl, but has also deviously recorded the

intimate sojourn and uploaded the same on a fake Facebook

account. Statement recorded under Section 161 of Cr. P.C. of

the victim girl is also clearly in sync with FIR version.

Considering the heinousness of the crime, the petitioner does

not deserve any consideration for bail at this stage. However,

this Court is of the view that Indian Criminal Justice system is

more of a sentence oriented system with little emphasis on

the disgorgement of victim’s loss and suffering, although the

impact of crime on the victim may vary significantly for

person(s) and case(s)-- for some the impact of crime is short

and intense, for others the impact is long-lasting. Regardless,

many victims find the criminal justice system complex,

confusing and intimidating. Many do not know where to turn

for help. As in the instant case, the rights of the victim to get

those uploaded photos/videos erased from Facebook server

still remain unaddressed for want of appropriate legislation.

However, allowing such objectionable photos and videos to

remain on a social media platform, without the consent of a

woman, is a direct affront on a woman’s modesty and, more

importantly, her right to privacy. In such cases, either the

victim herself or the prosecution may, if so advised, seek

appropriate orders to protect the victim’s fundamental right to

privacy, by seeking appropriate orders to have such offensive

posts erased from the public platform, irrespective of the

ongoing criminal process.

HIGH COURT OF ORISSA: CUTTACK

BLAPL No.4592 OF 2020

(In the matter of an application under Section 439,

Criminal Procedure Code, 1973)

Subhranshu Rout @ Gugul  Vs  State of Odisha 

PRESENT

 SHRI JUSTICE S.K. PANIGRAHI

 Date of judgment: 23.11.2020

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