[Answered] Examine the concept of the Right to be Forgotten in India. Evaluate how courts can balance informational privacy with free speech and open justice.

Introduction

With over 950 million internet users, India’s digital footprint is permanent. Building on Justice K. S. Puttaswamy v. Union of India and the 2026 Delhi High Court ruling, the Right to be Forgotten (RTBF) has emerged as a constitutional safeguard for dignity in the digital age.     

RTBF a Constitutional Shield for Digital Dignity

The RTBF enables an individual to seek erasure, masking, de-indexing or restricted accessibility of personal information that has lost public relevance, while preserving institutional memory and democratic transparency.

Constitutional & Legal Foundations

1. Right to Privacy: Flows from Article 21 as an aspect of informational privacy, recognised in Puttaswamy (2017) as integral to dignity and autonomy. Example: Personal autonomy.
2. Human Dignity & Rehabilitation: Prevents lifelong digital punishment after acquittal, settlement or private disputes; supports reintegration into society. Example: Matrimonial disputes.
3. Global Evolution: Inspired by the 2014 Mario Costeja González ruling and Article 17 of the GDPR. India follows a case-specific constitutional model, not an absolute right.

Balancing RTBF with Free Speech & Open Justice

1. Preserving Open Justice: Courts retain judgments as part of public records. Prefer masking or de-indexing rather than deleting judicial decisions. Ensures judicial transparency without perpetual digital stigma. Example: De-indexing and masking.
2. Protecting Freedom of Speech (Article 19(1)(a)): Courts apply a proportionality test considering: Nature and sensitivity of information, accuracy and continuing relevance, time elapsed, public office or public interest and gravity of offence. Example: Public officials.
3. Right to Know vs Right to be Forgotten: RTBF cannot erase history where continuing public interest exists: convicted public servants, corruption cases, sexual offenders, financial fraud. Example: RTBF not a blanket right.

Challenges in Enforcing RTBF

1. Technological: Cached pages, mirror websites and backups persist. AI models may retain personal data after training. Example: Generative AI.
2. Intermediary Dilemma: Search engines claim neutrality, courts increasingly recognize algorithmic amplification.
3. Cross-border Jurisdiction: Global platforms complicate enforcement beyond India. VPNs reduce effectiveness of domestic orders. Example: Cross-border internet.
4. Fragmented Digital Ecosystem: Data scattered across search engines, media, court databases and social media. Single-platform removal is insufficient. Once personal data is scraped into Large Language Models (LLMs) during training, it is mathematically complex to erase.
5. Institutional Capacity: Absence of standardized RTBF mechanism and need for faster grievance redressal. Example: Data Protection Board.

Role of the DPDP Act, 2023

Positive Contributions

1. Section 12(3) provides Right to Erasure, grants users (Data-Principals) the right to demand that companies (Data-Fiduciaries) erase their personal data.
2. Empowers Data Principals against Data Fiduciaries.
3. Strengthens consent-based processing. Example: Consent withdrawal.

Limitations

1. Does not explicitly recognize RTBF.
2. Exempts journalistic, archival and judicial records.
3. Publicly available information remains outside its primary scope. Example: Court records.

Way Forward

1. Tiered Framework: Fiduciaries handle private data; courts for judicial; independent body for media.
2. Technical Mandates: Automated de-indexing protocols and AI audit tools.
3. Legislative Clarity: Notify DPDP Rules with RTBF guidelines.
4. Capacity Building: Train judiciary on balancing tests; public awareness.
5. Global Coordination: Advocate interoperability in UN/G20 forums.

Conclusion

As Dr. B.R. Ambedkar emphasised in Constituent Assembly debates, dignity demands protection from perpetual harm. Courts’ nuanced balancing ensures RTBF strengthens, rather than undermines, constitutional democracy.