Introduction
The right also known as the Right to Erasure, traces back to French laws “droit à l’ouble” in 1990. But the right gained worldwide acclaim after the landmark judgement in Google Spain Case of 2014, in which the Court of Justice of the European Union held that an internet search engine operator is responsible for the processing it carries out of personal information on web pages published by third parties. This one particular judgement challenged and changed the legal systems around the world with authorities being challenged and new laws legislated.
Background
The issue was first raised in Spain when Mario Costeja González filed a complaint against Google Inc. or Google Spain to remove the links to a newspaper article stating him to be bankrupt, which was no longer true in the present time.
The matter of the suit originated in 1998, when the Spanish newspaper La Vanguardia published two announcements in its printed edition regarding the forced sale of properties arising from social security debts. The announcements were published on the order of the Spanish Ministry of Labour and Social Affairs and their purpose was to attract as many bidders as possible. A version of the edition was later made available on the web. One was contained a property belonging to Mario, whose name was mentioned in the announcement. In February 2010, he asked Google Spain for the erasure of the links to the data as it was no longer relevant. This further let to the Court of Justice of European Union’s ruling that balances the right to privacy and data protection in European Law, where the court held that an Internet search Operator is responsible for the processing that it carries out of personal data which appear on web pages by the third parties, upholding a right of erasure.
The Google Spain v AEPD and Mario Costeja González case had a significant worldwide effect, shaping the legal landscape of data protection and privacy rights. The ruling established the “right to be forgotten” as a fundamental right under the European Union’s Data Protection Directive, allowing individuals to request the removal of personal inform Data Protection Directive, allowing individuals to request the removal of personal information from search engine results. This decision has influenced various international courts and legal discussions, leading to a broader understanding of the balance between privacy rights and free speech in the digital age. The case has also sparked debates on the extraterritorial application of this right, particularly in relation to non-EU citizens’ rights to truthful information. The global legal community continues to explore the implications of this ruling, with some countries embracing the right to be forgotten and others being cautious about its application.
Justice K.S. Puttaswamy V Union Of India
Justice Puttaswamy, a former Kerala High Court judge challenged the constitutional validity of the mandatory Aadhar Scheme implemented by the Government of India in 2012. This scheme provided all the citizens of India to provide their biometric data. It was challenged on the ground that it is violative of the fundamental rights of the citizens and hence is unconstitutional on this ground. The case was decided by a nine- judge constitutional bench to determine if Right to Privacy was protected under the Indian Constitution.
The Apex Court of the country upheld the constitutional validity of the Right to Privacy. The court held that the Right to Privacy is a Fundamental Right, protected under the Articles 14, 19 and 21 of the Constitution of India. The court emphasized that privacy is an intrinsic part of the right to life and personal liberty, and it can be infringed only when there is a compelling state interest. This ruling has significant implications for digital rights, data protection, and government surveillance in India.
While Puttaswamy constitutionally recognized privacy, Indian courts and legislations have failed to reconcile the permanence of digital memory with individual dignity, resulting in fragmented, inconsistent, and discretionary protection of the Right to Be Forgotten.
Does The Right To Be Forgotten (Rtbf) Exists As An Enforceable Constitutional Right In India Post Puttaswamy?
Article 19 (1)(a)- Freedom of Speech & Right to Information- This is where the constitutional tension begins. Article 19 (1)(a) protects Freedom of Speech, Freedom of Press and the Public’s Right to know. Deleting or de-indexing information may amount to prior restraint, indirect censorship and suppression of material facts. Indian courts have repeatedly expanded the “right to know” under Article 19. Therefore, Right to Be Forgotten may restrict public access to truthful information, impact journalistic freedom and undermine transparency in cases involving public figures.
Article 21- Privacy, Dignity and Informational Autonomy- The constitutional foundation of the Right to Be Forgotten in India emerges from Article 21, as interpreted in K.S. Puttaswamy v. Union of India.
- Informational Privacy- The Supreme Court recognized privacy as a fundamental right. It also held information as a key facet of autonomy and dignity as central to constitutional morality. Justice Chandrachud specifically acknowledged that individuals must have “control over dissemination of personal information.” Thus, Right to Be Forgotten can be conceptualised as an extension of informational self- determination.
- Dignity & Reputation- Article 21 jurisprudence consistently links dignity to reputation. Therefore, Article 21 supports the Right as wrongful or outdated information may stigmatize. The acquitted persons still remain searchable. Survivors of sexual offences suffer secondary victimisation. Right to Be Forgotten therefore supports rehabilitation, reintegration and psychological autonomy.
The Indian Constitution simultaneously enables and restrains the Right to Be Forgotten. While Article 21 provides a normative foundation through privacy and dignity, Article 19(1)(a) resists informational erasure in the name of democratic transparency. The absence of Supreme court clarification has resulted in ad hoc High Court jurisprudence, reflecting constitutional ambivalence rather than doctrinal coherence.
The Proportionality Doctrine – The Balancing Tool
In K.S. Pittaswamy v. Union of India, the Court adopted the proportionality test:
- Legitimate aim
- Rational nexus
- Necessity
- Balancing stage
RTBF must survive this test.
Example: If an acquitted private individual seeks de-indexing,
Aim: Protect Dignity
Means: Remove search engine links
Balance: Does public interest outweigh privacy?
However, if the person is: a public official or convicted of corruption or a habitual offender, then public interest may override privacy.
Legislative Analysis- Digital Personal Data Protection Act, 2023
The Digital Personal Data Protection Act, 2023 is a landmark legislation in India that aims to establish a comprehensive legal framework for the collection, processing, storage, and protection pf digital personal data. It introduces a rights- based regime centred on informed consent, accountability of Data Fiduciaries, and stringent obligations for significant data handlers. The Act grants individuals specific rights over their information and creates an enforcement board to oversee compliance. It also introduces a structured compliance regime for all Data Fiduciaries, ensuring a mandatory compliance roadmap for organizations. The Act and Rules are designed to balance innovation with privacy protection, encouraging responsible data governance across all sectors.
Enactment of the DPDP Act in 2023 intelligibly and systematically set up how personal data should be treated in India. While the Act does not expressly imply the term “Right to be Forgotten,” it embodies several provisions that effectively recognize this right through data rights and duties imposed on data fiduciaries under the Act.
Under DPDP Act, the major provisions regarding the Right to Be Forgotten are:
- As per Section 12 of the DPDP Act, the data subject is equipped with the certain rights, including right to access, correction, and erasure of their personal information. The Right to be Forgotten grants the right to ask that the data be erased once the purpose for which it was collected is no longer served or the data subject withdraws his consent for processing.
- Section 8 the Act places obligations on data controllers and processors to respect the rights of individuals and to ensure data accuracy and implement appropriate technical and organizational measures for the protection of the data.
- Exception is mentioned in Section 12(3) which states that the Data Fiduciary can erase the personal data as requested by an individual unless retention of the same is necessary for the specified purpose or for compliance with any law for the time being in force.
Is India Moving Towards A European Style Data Dignity Model Or An American Style Free Speech Model?
The European style Data Dignity model emphasizes the importance of dignity in the context of digital technologies and data governance. Key aspects include:
- Digital Dignity
- Ethical Concerns
- Data Governance Models
The American Free Speech model is characterized by the First Amendment to the U.S. Constitution, which protects the right to express opinion without government interference. This model is deeply rooted in the enlightenment ideals of liberty and the free exchange of ideas.
While, the K.S. Puttaswamy judgement’s moral tone is closer to the European Dignity Framework than the American speech absolutism Model, this suggests normative alignment with Europe.
However, Indian Constitutional Law has also expanded the Right to Know under Article 19(1)(a), emphasised on transparency in public office and protected journalistic publication of truthful records. The principle of open courts and public access to judgements remains strong. This reflects structural similarity to the American approach.
The Legislative design in India, i.e. The Digital Personal Data Protection Act, 2023 has also unlike General Data Protection Regulation of the European Union no broad, rights driven erasure regime and also there is no significant executive discretion. This signals caution rather than full European adoption.
India is not fully embracing either model. Instead, it is moving toward a context- sensitive balancing framework characterized by:
- Case-by-case adjudication
- Heavy reliance on proportionality
- Judicial discretion rather than bright-line rules.
However, trends indicate Indiais moving closer to the European dignity model in theory, but remains structurally constrained by constitutional commitments to free speech.
Conclusion
The recognition of privacy as a fundamental right in K.S. Puttaswamy v. Union of India marked a transformative moment in Indian constitutional jurisprudence. However, the emergence of the Right to Be Forgotten (RTBF) poses complex challenges in an era where digital memory is permanent, borderless, and algorithm-driven.India is not converging toward American speech absolutism, nor has it fully embraced European data dignity constitutionalism.
Instead, India’s reluctance to constitutionalize RTBF reflects an anxiety about majoritarian misuse rather than doctrinal confusion.Privacy rhetoric suggests European influence but judicial and legislative caution prevents robust recognition of the Right to Be Forgotten. The future direction will depend on whether the Supreme Court explicitly constitutionalizes informational erasure or continues to treat it as a discretionary equitable remedy.
Author Bio- Bhavya Pathania, 3rd year, Himachal Pradesh University Institute of Legal Studies
