Kerala High Court: While deciding the petition, the Division Bench of A. Muhamed Mustaque, and Shoba Annamma Kapen, JJ., held that a claim for the protection of personal information, based on the right to privacy cannot co-exist in an Open Court justice system, whereas in cases where the law does not recognise the open Court system and in family and matrimonial cases, arising from the Family Court jurisdiction the personal information shall not be published on the website or any other information system maintained by the Court, if the parties to such litigation so insist.
Before the division bench, some cases related to family matters and some cases not related to family matters are placed for consideration. The issue involved in these cases is related to the deletion of personal information, based on right to be forgotten, from the Court judgments published by Indian Kanoon and indexed by Google,
The Court said that the dilemma in the present cases is to balance the right to privacy and larger public interest of the Court, thereby making judicial function open to all to ensure public confidence must be done by the Legislature and not judiciary.
The Court said that the Courtrooms by virtue of Section 153-B of Civil Procedure Code, 1908 and Section 327 of Criminal Procedure Code, 1973 are statutorily public spheres, where people are allowed to view proceedings and form public opinion. The very idea of keeping Courtrooms open to the public is to safeguard the open Court principle which is a fundamental aspect of the democratic ecosystem. The rationale behind Section 74 of the Evidence Act, 1872 making judicial records public records, is to allow the public to have access to the information in such records.
The Court further observed that the public has every right to know how a judge conducted a particular case with details of the parties, contents etc. Hence, the Court held that a claim for the protection of personal information based on the right to privacy cannot co-exist in an open Court justice system.
The Court further dealing with the issue of deletion of personal information from the judgments, held that the right to be forgotten cannot be claimed in respect of current proceedings or in a proceeding of recent origin. The right to be forgotten, if claimed in current proceedings would be an affront to the principle of open justice and the larger public interest. The ‘right to be forgotten’ is contextually related to the past and cannot be claimed as a ‘right in presentium’.
The Court further observed that the digital space is a dynamic space allowing vibrant data to be refreshed without the constraints of time and space. The boundaries of privacy have no limitations in the digital space. In the real world, humans have limitations created by space and time. In the normal course of human conduct, time will erase memory. This problem in a digital space of allowing information to remain forever would certainly affect the right claimed as a right to be forgotten. The internet has unlimited capacity to remember. In such cases the Court cannot generally balance the interest claimed by the individuals and the information available in the digital domain for eternity. Thus, the Court held that it is for the Legislature to fix grounds for the invocation of such a right. However, the Court, having regard to the facts and circumstances of the case and duration involved related to a crime or any other litigation, may permit a party to invoke the above rights to de-index and to remove the personal information of the party from search engines. The Court, in appropriate cases, is also entitled to invoke principles related to the right to erasure to allow a party to erase and delete personal data that is available online.
Referring to Section 22 of the Hindu Marriage Act, 1955, Section 11 of the Family Courts Act, 1984 and Regulation 48 of Adoption Regulation, 2022, the Court held that the protection accorded to privacy in matrimonial, family disputes, custody and adoption in a slew of legislations, signifies that the open justice principle is not in contemplation of the legislature in those matters. The legislature’s wisdom to deny open Court function to the public is essentially a recognition of the protective rights of the parties in relation to their privacy.
Hence, the Court held that in family and matrimonial cases, arising from the Family Court jurisdiction or otherwise and also in other cases where the law does not recognise the open Court system, the Registry of the Court shall not publish personal information of the parties or shall not allow any form of publication containing the identity of the parties on the website or on any other information system maintained by the Court, if the parties to such litigation so insist.
The Court further held that the Courtroom is open to all. The Court cannot gloss over the protection available to publishers of judgments under Article 19(1)(a) of Constitution. Reporting and publishing judgments are part of freedom of speech and expression and that cannot be taken away lightly without the aid of law.
The Court directed the Registrar to publish the privacy notice within 2 months in both English and Malyalam languages on the website of the High Court and the District Judiciary.
[Vysakh K.G. v. Union of India, 2022 SCC OnLine Ker 7337, decided on 22-12-2022]
Advocates who appeared in this case :
Advocates for Petitioners: T.C. Govindaswamy, Kala T. Gopi, B. Namadeva Prabhu, R. Aneesh, M.J. Thomas, Adarsh Mathew, Vipin P. Varghese, Dhanya T Mallar, Diljith K. Manohar, C.A. Chacko, C.M. Charisma, Megha K. Xavier, P. Rahim, Jacob Sebastian, K.V. Winston, Anu Jacob, B.S. Swathi Kumar, Anitha Ravindran, Harisankar N Unni, P.S. Bhagya Surabhi, Johnson Gomez, Sanjay Johnson, John Gomez, Sreedevi S., Anitha Mathai Muthirenthy, Rajit, Arjun S., Bimala Baby;
Advocates for Respondents: B.G. Harindranath, Santhosh Mathew, Riji Rajendran, C.M. Andrews, Arun Thomas, Jennis Stephen, Karthika Maria, Anil Sebastian Pulickel, Jaisy Elza Joe, Abi Benny Areeckal, Vrinda Bhandari, Abhinav Sekhri, Tanmay Singh, Krishnesh Bapat, Mishra Anandita Vipinkant, Manu S., ASG Of India, Mitha Sudhindran, Harish Abraham, Aditya Vikram Bhat, Amith Krishnan H., Aditya Vikram Bhat, Anind Thomas, Manu S., DSG Of India; Suvin R. Menon, CGC; M.L. Suresh Kumar, CGC, B. Unnikrishna Kaimal, S. Kannan Sr. Gp, Harish Abraham, Amith Krishnan H., Bharadwajasubramaniam. R, Jaishankar V. Nair, CGC, Vijay V. Paul, Divya Sara George, Leah Rachel Ninan, Mitha Sudhindran, Girish Kumar. V., CGC, Babu Paul, Jaishankar V. Nair, CGC.