On September 29, 2011, Karthick Theodore, an Indian man, had been convicted of cheating and rape under sections 417 and 376 of the Indian Penal Code and sentenced to imprisonment. However, on April 30, 2014, in Criminal Appeal No. 321/2011, the High Court acquitted Theodore and reversed the Trial Court’s judgment. The High Court’s judgment became final and could not be appealed further.

Many years later, Theodore filed a writ petition before the Madras High Court, seeking an order directing the Registrar General, Additional Registrar General, and Registrar (IT-Statistics) to redact his name and other identifying details from the court’s judgment in Criminal Appeal No. 321/2011. He also requested that Ikanoon Software Development Private Limited, a non-government entity which publishes court judgments online, be instructed to reflect the redaction.

On August 3, 2021, the High Court rejected his plea.

Theodore appealed the decision to a full bench of the High Court.

Justice Dr. Anita Sumanth of the Madras High Court delivered the judgment of the division bench which included Justice R. Vijayakumar. The main issue before the Court’s consideration was whether the Registrar of the Madras High Court and Ikanoon should be directed to redact Theodore’s name and other personal details from the publication of the judgment.

Theodore referred to the case of Puttaswamy v Union of India to highlight the right to privacy guaranteed under Article 21 of the Indian Constitution and submitted that “redaction of name and identity” is guaranteed under the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. He requested that the judgment be taken down from Ikanoon’s website as exposing the “private aspects of his past life” to public scrutiny was unnecessary. [para. 4] He submitted that “no public purpose would be served by disclosing the details” and explained the impact on his life, including the denial of an Australian travel visa [para. 12] Theodore argued that the right to be forgotten is inherent under Article 21, and cited the case of XYZ Hospital [1988 8 SCC 296] where the Supreme Court ordered the “masking of personal and identifying details” when appropriate. [para. 8] Theodore also referred to Central Public Information Officer v. Subhash Chandra Agarwal [2020 5 SCC 481], where the Supreme Court held that section 8(1)(f) of the Right to Information Act, which protects individual privacy, applies to the Court itself.

The Registrar General argued that public access to court judgments is crucial, with reference to Swapnil Tripathi v. Supreme Court of India, and also referred to V. Swaminathan v. Registrar General [W.P.No.SR.73910 of 2021] where a similar request for redaction was denied after noting that the High Court is a “Court of Record”. The Registrar General cited R. Rajagopal v. State of Tamil Nadu in arguing that privacy rules do not apply in the publication of public records, including court records and referred to section 327 of the Code of Criminal Procedure to emphasize that “judicial institutions should normally be open and transparent” and allow public access to courts and their judgments. [para. 17]

The Court noted that although the Digital Personal Data Protection Act, 2023 (the Act) was not yet in force it was necessary to consider because the case concerned the right to privacy. The Act provides for the processing of personal data in a way that “recognizes both the right of the individuals to protect their personal data, and the need to process such data for lawful purposes”. [para. 25] The Court referred to section 3 of the Act on its applicability; section 3(c)(ii)(B) states the Act will not apply to “any other person who is under an obligation under any law for the time being in force in India to make such personal data publicly available.” In examining whether both conditions of this exception were met the Court held that the first condition was satisfied, as the Court qualifies as a “person” under the Act, being an “artificial juristic person” but that the second condition was not fulfilled as “there is no obligation cast upon the Courts to make personal data publicly available”. [para. 54] The Court found that a court order containing personal data falls under the definition of “data” under section 2(h) and its digital copy under the ambit of “digital personal data” under section 2(n) of the Act. Accordingly, the Court held that the Act was applicable.

Under section 12 of the Act, an individual has the right to the erasure of personal data and under section 8(7), a “data fiduciary” is required to erase data if a “data principal” withdraws consent. Section 17(1) lays down exemptions to these provisions: section 17(1)(b) states that these provisions will not apply where “the processing of personal data by any court or tribunal or any other body in India which is entrusted by law with the performance of any judicial or quasi-judicial or regulatory or supervisory function, where such processing is necessary for the performance of such function”. The Court accepted that section 17(1)(b) renders section 8(7) inapplicable to courts, tribunals and quasi-judicial authorities but held that the absence of powers of erasure under the Act does not prevent courts from offering relief to deserving individuals under its inherent powers.

The Court discussed whether being a “Court of Record” prevented it from redacting personal data from the publication of judgments and acknowledged that as a Constitutional Court and “Court of Record” under Article 215 of the Indian Constitution, it is entrusted with maintaining “such [personal] data as constitutes its ‘record’, in perpetuity”. [para. 56] However, it emphasized that the decision to make data publicly accessible rests solely with the Court, with such decisions being made “consciously and carefully”. [para. 56] The Court stated that such an exercise was self-imposed and “in the interest of public access to justice and courts” and stressed that it cannot be compelled to release information into the public domain, except under obligations imposed by the Right to Information Act. [para. 57]

The Court noted that while preserving its original records is essential, a simple direction to redact or mask personal details from the published judgment would not impact the integrity or sanctity of records. The Court emphasized that the parties to litigation could still access certified copies of unredacted judgments, as per the Madras High Court Appellate Side Rules. It noted that the Madras High Court Original Side Rules allow strangers to inspect the records but it is up to the Court to accept or reject such a request, which enables “protection and privacy of litigants”. [para. 32]

The Court referred to jurisprudence related to the right to privacy and the right to be forgotten, and noted that referring to the cases cited by Theodore and the Registrar General was unnecessary, as all relevant cases had already been addressed in the Puttaswamy judgment. It emphasized that Puttaswamy established the right to privacy as an inalienable part of the right to life under Article 21, including the right to be forgotten. The Court held that the “‘right to be forgotten’, or rather the ‘right to be remembered well’, cannot be denied to a person if the facts and circumstances so commend it.” [para .61] In light of the Puttaswamy judgment, the Court emphasized that privacy concerns in the digital age necessitate discretion in appropriate cases.

The Court acknowledged its wide discretion in deciding whether to grant disclosure or redaction and explained described that this discretion could be exercised either upon the request of the party seeking redaction or, in appropriate cases, by a court on its own accord: it noted that litigants are often unaware of the privacy protections available to them, and in such instances, the Court may act on its own to provide such protection, even without a specific request such as in Chandran Somasundaram v Principal Director of Income Tax, Coimbatore. The Court recognized that it has historically intervened to protect privacy in various cases such as Nipun Saxena v. Union of India where the Supreme Court addressed the protection of identities of adult rape victims and children in sexual abuse cases. The Court also referred to section 228A of the Indian Penal Code, which lays down guidelines for disclosing the identity of victims of certain offences, and to the cases of X v. State of Maharashtra, where the Supreme Court ordered the redaction of an informant’s name pending the case, and X v. State of Maharashtra and (Name Redacted) v. Registry of the High Court of Karnataka, where the Supreme Court and Karnataka High Court had exercised discretion to redact the name of the appellants.

The Court referred to international jurisprudence related to the right to be forgotten and noted that it was first recognized in French jurisprudence as “le droit à l’oubli.” It observed that the right to be forgotten, granted to convicts upon release, allowed for the erasure of their names from official databases to facilitate a fresh start and mentioned the European Court of Justice’s ruling in Google Spain SL v. Agencia Española de Protección de Datos (AEPD) which permitted the removal of irrelevant information from the internet.

In addressing the discussion regarding the co-existence of an open court justice system and the right to privacy, the Court noted that in Vysakh K.G. v. Union of India the High Court of Kerala had ruled that these rights could not co-exist – although this order is pending review. The Court stressed that the open court system set out in Swapnil Tripathi v. Supreme Court of India had to be balanced with the right to privacy guaranteed under the Puttaswamy judgment. The Court acknowledged that an individual’s right to privacy must be balanced with the public’s right to information, and noted that “totalitarian application of either one concept as that would defeat the purpose of both equally valid concepts.” [para. 86] The Court held that litigants had a right to “leave behind parts of their past which are no longer relevant” and called it a “proper understanding and reconciliation” between the two Supreme Court judgments. [para. 87] It found that it had inherent powers to determine on a case-by-case basis and redact information from certified copies intended for public circulation in suitable cases.

Applying these principles to the present case, the Court clarified that Theodore did not seek statutory protection but rather the Court’s discretion to enforce his “fundamental right of erasure”. [para. 61] It noted that efforts were underway to formalize a Privacy and Data Protection Policy applicable across India and until such a policy is established, it is incumbent on each High Court to devise mechanisms to address requests like the one made by the Theodore.

The Court stressed that the Criminal Appeal No. 321/2011 had attained finality and that Theodore was acquitted of the charges and acknowledged that the “petitioner has moved on and there is no public interest in retaining, as part of public record, a chapter of his life that has no relevance now.” [para. 92] In highlighting the “principle of fresh start” guaranteed under the Juvenile Justice (Care and Protection of Children), Act, 2015, the Court questioned why it should not be entitled to adults.

Accordingly, the Court ordered the Registrar General, Additional Registrar General and Registrar (IT-Statistics) to redact his name and other identifying details from judgment in Criminal Appeal No. 321/2011. The Court directed Ikanoon to take down the judgment and, while the unredacted version continued to be part of the Court records, the Court allowed the publication of only the redacted judgment.