Important Judgments

Introduction

The Delhi High Court ordered the removal of easy access from one of its own judgments. The move respected the petitioner’s right to be forgotten (RTBF) and aimed to prevent post-acquittal stigmatization. RTBF is a right to remove private information about a person from Internet searches and other directories under some circumstances.

It is not explicitly available to the Indian masses. However, it has been implicitly recognised by courts as part of the right to privacy under Article 21 of the Indian Constitution. However, some experts have expressed concerns about it. Because RTBF deters the right to information and media freedom under Article 19(1)(a) of the constitution. Therefore, cautious balancing is desired, to enable its implementation in a restricted sense. 

Why in the News?

• The Delhi High Court in Jorawar Singh Mundy v Union of India (2021) made an interim order protecting the rights of an American citizen.
  • The petitioner desired the removal of a judgment of acquittal in a case filed under the Narcotic Drugs and Psychotropic Substances Act (1985).
  • As per the petition, the continued existence of judgment on the websites/portals of Google and Indiankanoon had caused irreparable damage to his social life as well as his career prospects.
• An interim order was issued by the High Court of Delhi. It directed Google and IndianKanoon to remove access to a judgment from their portals.
• The court recognised that the petitioner has a right to be forgotten, which must be balanced with the right of the public to access the court’s records.
• This is the first instance of a court ordering the removal of access to its complete final judgment from certain spaces.

About Right to be forgotten

• It is a right to remove private information about a person from Internet searches and other directories under some circumstances.
• It empowers individuals to ask organisations to delete their personal data.
• Likewise, it allows the individuals to determine the development of their life in an autonomous way without being perpetually stigmatized for a specific action performed in the past.

The scenario of Right to be forgotten in India

• The RTBF is not an explicit right granted to Indian citizens. Although courts in various judgments have emphasized the importance of this right.
  • In K.S Puttaswamy versus Union of India (2017), the court deduced that the right to privacy also encompasses an individual’s right to control his existence on the internet.
• The recommendations by the B.N Srikrishna committee also emphasized this right. Thus, it was incorporated under the Draft Personal Data Protection Bill, 2019.
  • Section 20 of the bill states that every person has the right to restrict or prevent continuing disclosure of personal data by any data fiduciary. Provided such disclosure meets any one of the following conditions:
    • The disclosure served the purpose for which it was made or is no longer necessary
    • Further, the disclosure was made with the prior consent of the individual, and such consent has since been withdrawn.
    • Lastly, the disclosure was made contrary to the provisions of the new bill or any other law in force.

International Scenario of Right to be forgotten

• The right took shape largely from the 1995 Directive of the European Union on the protection of individuals with regard to the processing of personal data.
• It is currently being provided by the EU’s General Data Protection Regulation (GDPR), a law passed by the 28-member bloc in 2018.
• According to the EU GDPR’s website, the right to be forgotten appears in Article 17 of the regulation.
  • It states that the data subject shall have the right to obtain the erasure of personal data concerning him or her, without undue delay, from the controller. Further, the controller shall have the obligation to erase personal data without undue delay.
• In 2019, the European Court of Justice ruled that the ‘right to be forgotten’ under European law would not apply beyond the borders of EU member states. 
  • This was in favour of Google, which was contesting a French regulatory authority’s order to have web addresses removed from its global database.
• Currently, the EU, UK, and Australia are strongly moving towards the consolidation of the Right to be forgotten.

Arguments in Favour of the right to be forgotten

• First, it will uphold an individual’s privacy under Article 21 of the Indian Constitution. This would enable him/her to fully enjoy the right to life and personal liberty.
• Second, it would prevent post-acquittal social stigmatization by society. The right may save an individual from additional punishments like social boycott, difficulty in getting jobs, doing marriage, etc.
  • The Delhi HC revoked access to its judgment in Jorawar Singh Mundy v Union of India (2021) based on this premise.
• Third, it would help in maintaining a veil of secrecy on the victim’s identity, especially in highly sensitive cases involving rape or affecting the modesty of the woman. This was observed by the Karnataka High court in Sri Vasunathan v The Registrar General (2017).
• Fourth, many articles are written based on half-truths and mere accusations. The media doesn’t update its prior articles based on future verdicts.
• Fifth, much information is published without an individual’s consent which may cause severe harm to its reputation and mental peace. 
  • For instance, uploading fake or revenge posts with respect to a person. 
  • Jasleen Kaur (a former Delhi University student) had in 2015 accused Saravjeet Singh of verbally harassing her at a traffic signal in West Delhi. 
  • This induced media persons to label him an “eve teaser” and a “pervert” however he was later acquitted.

Arguments against the right to be forgotten

• First, it gets in conflict with the right to information, which is part of freedom of speech under Article 19(1)(a) of the Indian constitution.
  • For instance, a rape victim has a right that her past is forgotten. While a criminal cannot claim that he has the right to insist that his conviction should not be referred to by the media.
• Second, under the proposed data protection bill, removal depends on the discretion of the adjudicating officer. This may lead to partisan or arbitrary removal in favour of the government.
• Third, it may impair the right of media personnel to do independent reporting. The adjudicatory officer may remove articles of media groups that generally criticize government policies.
  • Thus, the freedom to criticize the public personalities for their public policies based on their past statements and activities will be in jeopardy.  
• Fourth, the removal of complete judgments may restrict public scrutiny of judicial performance to ascertain the fairness and objectivity of the administration of justice. Further judgments are an important source of learning for law students.
• Fifth, the removal sometimes creates a Streisand effect. It is a social phenomenon that occurs when an attempt to hide, remove or censor information has the unintended consequence of further publicizing that information.

Suggestions

• Privacy needs to be added as a ground for reasonable restriction under Article 19 (2) through a constitutional amendment for the effective implementation of RTBP.
• The impending Data Protection Bill should be passed expeditiously. This would give individuals a legal right to erase their unnecessary and inappropriate personal data.
• The courts should resort to narrow tailoring of the judgment rather than forbidding access to its complete judgment.
  • For instance, in the current Jorawar Singh Mundy v Union of India (2021), the court could have ordered that the name and personal details of the petitioner be censored while maintaining public access to the judgment itself.

Conclusion

The right to be forgotten is well established across the world, although Indian courts have not had much occasion to deal with the same. However, this situation may change in the future as more petitions are likely to be filed on account of the evolving international jurisprudence and impending enactment of the Indian Personal Data Protection Bill.

Synopsis:

Recently, in response to a petition, the Delhi High Court ordered the removal of easy access from one of its own judgments. Delhi HC upheld the petitioner’s right to be forgotten to prevent post-acquittal disgrace faced by him. However, some experts have criticized the order, stating that minor modifications would have yielded better results than complete revocation.

Background:

• The Delhi HC gave temporary relief to a petitioner. He sought the removal of the judgment from leading database platforms and search engines after his acquittal.
  • The court asked search engines to remove this order from search results. It ordered the database platform to block the judgment from being accessed by search engines.
• It recognized that the petitioner may have a right to be forgotten, which must be balanced with the right of the public to access courts of record.
• This is the first instance of a court ordering the removal of access to its complete final judgment from certain spaces.

About Right to be forgotten:

• It is a right to remove private information about a person from public access.
• It allows an individual to determine the development of their life in an autonomous way and prevents perpetual stigmatization for past conduct.
• In 2017, the Supreme Court held it to be a part of the Right to privacy. The court deduced that a lot of personal information may serve no “legitimate interest”, was unnecessary or irrelevant and hence can be taken down.

Issues associated with Right to Forgotten:

• First, there are no concrete provisions or guidelines to determine the ambit of ‘Right to be forgotten’. It is dependent on the discretion of individual courts and the status of individuals. For instance, a public figure may find greater difficulties in exercising this right.
• Second, there is no clarity on information uploaded by 3rd parties like a journalist or news agency. There is a broad consensus that one should be empowered to remove the information upheld by him/her over the internet.
  • However, removing 3rd party information may muzzle fair criticism of government policies and the media’s right to report.
  • U.S Supreme court in New York Times Co. v. Sullivan (1964), ruled that public interest reporting may continue without fear as long as it did not intentionally or recklessly make outright false statements.
• Third, the removal of complete judgments may not allow public scrutiny of judicial performance to ascertain the fairness and objectivity of the administration of justice.
• Fourth, the removal sometimes creates a Streisand effect. It is a social phenomenon that occurs when an attempt to hide, remove or censor information has the unintended consequence of further publicizing that information.

Way Forward:

• As per some experts, narrow tailoring of the judgment would have been more beneficial than forbidding access to its complete judgment.
• The court could have ordered that the name and personal details of the petitioner be censored while maintaining public access to the judgment itself. 

Thus, the right to be forgotten must be studied along with the concepts of fair criticism and accountability.

Source: Click Here 

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Synopsis – What is the case of the Italian Marines, what was the conflict between India and Italy over the issue and the possible reason of delay in prosecuting the matter.

Introduction –

• After Italy deposited Rs 10 crore in compensation, the SC ordered the closure of court proceedings in India against two Italian marines accused of killing two fishermen off the coast of Kerala in 2012 after mistaking them for pirates.
• The diplomatic turbulence, legal tangle over jurisdiction between India and Italy caused the delay in resolving the Italian marine’s case.

What was the dispute over the Italian Marines case?

• India
  • India alleged that the Italian marines on board “Enrica Lexie” had violated the freedom of navigation rights by shooting at the fishing boat.
  • As the two fishermen were killed without warning, India has jurisdiction over the matter.
  • The NIA the NIA invoked anti-piracy law, the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA).

• Italy – The prosecution under the SUA Convention was challenged by Italy for comparing the occurrence to a terrorist attack.
  • According to Italy, as the Indian vessel approached, the Italian marines determined that it was a pirate attack. As the fishing vessel continued to head towards the tanker despite sustained visual and auditory warnings, and the firing of warning shots into the water.
  • Italy claims the marines had been hired to protect the tanker from pirates and they were only carrying out their duties.
  • Italy also claims that the marines enjoyed sovereign functional immunity in India and Italy alone had jurisdiction to deal with them.
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International tribunal’s ruling-

• In 2020, the Permanent Court of Arbitration ruled that the two Italian marines were on a mission for the Italian government and so should be sent to Italy, where they would face criminal charges.
• By the ratio of 3:2 votes, the Italian marines were entitled to diplomatic immunity as Italian state officers under the United Nations Convention on the Law of the Sea, and that India could not exercise jurisdiction against them.
• The UN tribunal had also ruled that the Indian fishing boat and its victims were entitled to compensation as the Italian vessel, had violated the boat’s right of navigation under the Law of the Sea.

Way forward-

• If India had accepted Italy’s offer of compensation and a trial in its own jurisdiction sooner, the delay in prosecuting the matter could have been avoided.
• As a result, a lesson learned is that such cases should be handled with using both legal and diplomatic means to get a speedy resolution.

Source – The Hindu

Synopsis: Acquittals in rape cases are often based on stereotypes about rape survivors and their past sexual history. But that has to change if India wants to ensure the Right to a fair trial.

Background

During the recent judgement by the Goa session’s court in Tarun Tejpal case the court referred to the survivor’s sexual history in graphic detail. Further, the judgement held the following things,

• The court denied accepting the victim as a sterling witness. It was stated that the survivor did not fit into the court’s preconceived ideas of a rape survivor’s behaviour.
• This disregards the women’s struggles that forced changes in law, in case of law, and in approaches to victims of rape.

Can the court go into the details of a survivor’s sexual history?

No. Doing so would be a form of discrimination by the court.

• It violates Article 14’s guarantee of equality before the law and the equal protection of laws.
• Article 15 of the constitution also forbids the state from discriminating against citizens based on stereotypes related to their sex and gender. 

There have been many cases wherein the Supreme Court of India has warned against stereotyping rape survivors. This is because it not only violates their fundamental rights but also leads to divergent results in sentencing.

Was the sexual history of a survivor admissible in court in the past?

Yes.

• Under Section 155(4) of the Indian Evidence Act, a rape survivor’s past sexual history used to be acceptable. The rape accused could state that the rape survivor was of immoral character and claim that she consented to the sexual acts.
  • Past sexual history was used to suggest that the survivor was immoral and thus not a trustworthy witness.
  • This section was removed in 2003 after recommendations in the Law Commission of India’s 172nd report. 

Significant cases which led to amendments in the Indian Evidence Act: 

• In Aparna Bhat & Ors. vs State of Madhya Pradesh case, the Supreme Court warned of the dangers of typecasting rape survivors.
  • Rape myths: It mentioned the prevalent rape myths which include fixed notions of chastity, resistance to rape, having visible physical injuries, behaving a certain way, reporting the offence immediately etc.
  • If the survivor had agreed to similar acts in the past should be irrelevant. The SC directed courts not to doubt a woman’s testament just because she was sexually active.
• In the Mathura rape case (Tukaram vs Maharashtra, 1979), the Supreme Court released two policemen accused of raping a 14-year-old Adivasi girl in a police station. Stating that she was sexually active and considered her proof as “a tissue of lies”(Not considered her as a witness). 
  • This verdict led to the introduction of Section 114-A of the Evidence Act. It applied in serious rape cases where the accused was a police officer or member of the armed forces. 
• In 1996, in the Punjab v Gurmit Singh case, the SC warned courts against making remarks about the rape survivor’s character. It stated that a woman who was sexually active could still refuse to consent. 
• In 2013, the JS Verma Committee, created after the Delhi 2012 rape case, suggested that a past relationship between the accused and the victim should be inapt while deciding whether the victim consented. 
• The Criminal Law (Amendment) Act, 2013 united many of such judgements and recommendations into legal law. 
  • Section 53A of the Evidence Act stops courts from depending on evidence of the character of the victim. Such as her prior sexual experience with any person to decide questions of consent in sexual assault cases. 
  • The 2013 Act also amended Section 146 so that a rape survivor cannot be asked questions about her immoral character or prior sexual experience to prove consent.
  • The 2013 amendment also introduced a fixed minimum sentence of seven years imprisonment for rape (This is increased in 2018 to 10 years) and 10 years for serious rape. 

How the 2013 amendment impacted the conviction rates in rape cases?

Studies show that conviction rates fell after the 2013 amendment. In a review of 1,635 rape judgements passed by Delhi trial courts between 2013 and 2018, the conviction rate fell from 16.11% under the old law to 5.72% under the new law. This is due to the following reasons. Such as,

• Survivors were doubted because of varying statements at several stages of the trial,
• Failure to reveal details of the incident to anybody,
• Delay in registering the complaint.

Conclusion 

The rape stereotypes and dependence on past sexual history are damaging for rape survivors and the criminal justice system. The right to a fair trial under Article 21 states that cases should be decided on facts. Acquittals based on stereotypes impair the faith of the public in the criminal justice system.

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