Author- JAYAPRIYA.A, CHENNAI DR. AMBEDKAR GOVERNMENT LAW COLLEGE, PUDUPAKKAM

CASE DETAILS

i)          Judgement Cause Title / Case Name	DHARMARAJ BHANUSHANKAR DAVE VS STATE OF GUJARAT
ii)          Case Number	SPECIAL CIVIL APPLICATION 1854 OF 2015
iii)          Judgement Date	19TH JANUARY 2017
iv)          Court	THE HIGH COURT OF GUJARAT AT AHMEDABAD
v)          Quorum / Constitution of Bench	JUSTICE R.M. CHHAYA
vi)          Author / Name of Judges	R.M. CHHAYA
vii)          Citation	[2015] SCC ONLINE GUJ 2019 SCA NO.1854 OF 2015
viii)          Legal Provisions Involved	ARTICLE.226 ARTICLE 21 RULE 151 OF THE GUJARAT HIGH COURT RULES, 1993

INTRODUCTION AND BACKGROUND OF JUDGEMENT

The right to be forgotten is a notion by which a person can remove the disclosed personal information that is outdated or irrelevant that is available to the public. It can be compounded with the meaning of erasure, which is to remove the information from the source. In India the concept of the right to be forgotten is brought up by way of cases filed. But it is still being questioned on its existence and recognition.

In the case of Sri Vasunathan vs. The Registrar General[1], the High Court of Karnataka recognized such right as a part of the right to privacy under Article 21, but the High Court of Gujarat refused to recognize it in the present case. This right rooted from the case of Google Spain SL, Google Inc. vs. Agencia Española de Protección de Datos, Mario Costeja González[2].  This case was filed to remove the advertisement about the auctioned house of the petitioner due to financial issues that were still available online. Therefore, the European Court ruled against the search engines to remove such information in order to exercise the right to be forgotten.  But in the present case the court hasn’t ruled in favor of the petitioner to exercise such right.

FACTS OF THE CASE

In this case, the petitioner filed this special civil application before the High Court of Gujarat at Ahmadabad[3] to enforce his right to be forgotten. The respondents of this case were the State of Gujarat, the Registrar General of the High Court of Gujarat, Indian Kanoon, and Google India. The petitioner was charged with the offenses of kidnapping, murder, criminal conspiracy, misappropriation of property, and tampering with evidence under the Indian Penal Code in a criminal case dealt by the same court. After trial, the petitioner was acquitted.

In 2015, the petitioner was planning to migrate to Australia. During the visa process, the petitioner found that the judgment in which he was acquitted was found on the website of Indian Kanoon, which is an online database that provides free access to judgments and on Google India. The contention of the petitioner was that it is a non-reportable judgment, yet it is published, and it violates the privacy and personnel dignity of the petitioner. Hence, the petitioner approached the Gujarat High Court and prayed to remove the judgment from the internet.

LEGAL ISSUES RAISED

• Whether “Right to be Forgotten” is recognised in India under Article 21?
• Whether the publication of non-reportable judgment on a legal website is amounting to violation of privacy?

PETITIONER/ APPELLANT’S ARGUMENTS

The petitioners were migrating to Australia from India. During the visa process, they tend to know about the judgment in which he is acquitted that was made available online. The websites, namely Indian Kanoon and Google India, were made available for judgment at no cost to the public. Despite the judgment being a non-reportable one, it is published on legal website portals.

As it is a non-reportable judgment, the exclusive authority to publish vests with the registrar of the High Court. It became a violation of privacy and an infringement on the reputation and dignity of petitioners. The judgment was published along with the name of the petitioner. Hence it is an overzealous act done by the respondents. Due to this the personnel and professional life of the petitioner was disturbed and affected. It is affecting the Right of Privacy under Article 21 of the Indian Constitution.

It is also pleaded that the respondents have no authority to publish the said judgment, which is classified as non-reportable. In order to exercise the right to be forgotten, which is a part of the Right to Privacy under Article 21, the petitioner approached the court to order the respondents to remove the published judgment and order for permanent restraint on its exhibition.

RESPONDENT’S ARGUMENTS

The counsel of respondents were contending that the High Court of Gujarat is a court of record and the judgments delivered were public documents. There is no bar on making it accessible to the public. As it is a public document, publishing it doesn’t violate the rights of the petitioner. There is no clear proof established before the court to prove that the privacy of the petitioner was infringed. The counsel for Google India argued that there is no connection for it with this case.

It is an automated search engine that provides numerous relevant pieces of information regarding the search in a single click. Thus, there is no fault on the side of Google India, as they only provide sources of information. Also, commonly the respondents pleaded that the judgment is a public document that can be accessed by anyone freely. The right to privacy of the petitioner is not violated here, and also it is to be noted that fundamental rights were not absolute, subject to reasonable restrictions. 

 RELATED LEGAL PROVISIONS

• Article 21 – Protection of Life and Personal Liberty
•  “No person shall be deprived of his life or personal liberty except according to procedure established by law”. [6]

Article 226 – Power of High Courts to issue certain writs[7]:

“(1)- Notwithstanding anything in article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrantor and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose

.[(1-A) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.”; was inserted after 15th Amendment.

(2)- The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the scat of such Government or authority or the residence of such person is not within those territories.

(3)-Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without—

(a)-furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and

(b)-giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated

.(4)– The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32”.

Rule 151 – Parties to proceedings entitled to copies; Application by third parties to be accompanied by affidavits[8]:

 “Copies of documents in any Civil or Criminal proceeding and copies of judgment of the High Court shall not be given to persons other than the parties thereto without the order of the Assistant Registrar. Applications for copies of documents or judgment made by third parties shall be accompanied by an affidavit stating the grounds on which they are required, provided that such affidavit shall be dispensed with in case of applications made by or on behalf of the Government of the Union, the Government of any State or the Government of any foreign State”.

JUDGEMENT

After hearing both side arguments, the court held that the petition was dismissed at no cost[9]. It states that the High Court of Gujarat is a court of record and the judgment passed was a public document.  Copies of the judgment were provided only to parties. A third party can request by application to get a copy of the judgment by mentioning the reason and grounds for obtaining it in the affidavit.  The case gets dismissed because the petitioner wasn’t able to prove under which law the case got attracted and can’t provide by which law the respondents shall refrain from publishing the judgment. Mere publication of judgment would not be considered as “reported” as it is published in a law reporter. Also, the right to be forgotten is not formally recognized in India, and the petitioners failed to establish the law recognizing it

RATIO DECIDENDI[10]

The judgment published on a legal website or on a law reporter shall not amount to reported.  The right to privacy is not an absolute right, and it shall be balanced with the public interest. Judgments are considered to be public documents, and the copies can be availed of by third parties in accordance with Rule 151 of The Gujarat High Court Rules, 1993.

OBITER DICTA[11]

The petitioner doesn’t demonstrate the applicable law that prevents the publication of the judgment by the respondents.  The right to be forgotten is a complex one, and there is no statutory recognition of this. Hence, it can’t be recognized under part of the Right to Privacy

 CONCLUSION& COMMENTS

In conclusion, it is evident that the petitioner failed to establish the proper reason and legal principle that prevent the respondents from publishing the judgment.  As a judgment being a public document, it is accessible to everyone through appropriate proceedings. As the legal websites were considered to be law reporters, they can publish both reportable and non-reportable judgments. 

It was held in the case of Eastern Book Company and Ors vs. D.B. Modak and Anr[12] by the Supreme Court in 2008. Though the right to be forgotten is recognized in the West, it is not legally recognized in India. Also, there exists a confusing opinion regarding the Right to be Forgotten being included under the Right to Privacy. By recognizing the right to be forgotten, it will gradually infringe on the right to know of citizens. Therefore, the judgment passed by the High Court of Gujarat is valid and legally sound

REFERENCES

Important Statutes Referred

• Constitution of India, 1950
• The Gujarat High Court Rules, 1993

[1] Supra note 3

[2] Supra note 1

[3] Dharmaraj Bhanushankar Dave vs State of Gujarat,[2015 ]SCC OnLine Guj 2,[3]

[4] Dharmaraj Bhanushankar Dave vs State of Gujarat, [2015 ]SCC OnLine Guj 3,[4]

[5] Dharmaraj Bhanushankar Dave vs State of Gujarat, [2015 ]SCC OnLine Guj 3,[5],[6]

[6] Indian Constitution,1950, Article21

[7] Indian Constituion,1950, Article 226

[8] The Gujarat High Court Rules,1993, Rule 151

[9] Dharmaraj Bhanushankar Dave vs State of Gujarat,[2015 ]SCC OnLine Guj 5,6,[8]

[10] Dharmaraj Bhanushankar Dave vs State of Gujarat,[2015 ]SCC OnLine Guj 4,5 [7]

[11] Kunika Khera,’Case Commentary: Right to be Forgotten’[2018] 3 ISSN 2456-2718

[12] (2008) 1 SCC 1