Abstract

In the digital age, information published on the internet often remains permanently accessible, creating significant challenges for individuals seeking rehabilitation after involvement with the criminal justice system. Search engines, online news portals, and legal databases continue to display criminal records long after acquittal, completion of sentence, or closure of proceedings, thereby affecting employment opportunities, social relationships, reputation, and mental well-being. The emergence of the Right to be Forgotten (RTBF) seeks to address this dilemma by enabling individuals, in appropriate circumstances, to request the removal or de-indexing of personal information that is no longer relevant or whose continued availability disproportionately infringes upon their privacy.

Although the European Union has recognised the Right to be Forgotten through the General Data Protection Regulation (GDPR), Indian law continues to evolve in this area. The recognition of privacy as a fundamental right in Justice K.S. Puttaswamy (Retd.) v. Union of India laid the constitutional foundation for RTBF, while various High Courts have gradually acknowledged its importance in specific factual situations. However, the absence of explicit statutory recognition under the Digital Personal Data Protection Act, 2023 (DPDP Act) and the competing constitutional values of freedom of speech, open justice, transparency, and public interest make its application to criminal records legally complex.

This article critically examines the legal boundaries of the Right to be Forgotten in relation to expunging past criminal records available online. It analyses the constitutional framework in India, judicial developments, comparative international approaches, and the practical challenges involved in balancing privacy rights against society’s legitimate interest in access to information. The article concludes by recommending a balanced legislative framework capable of protecting individual dignity while preserving judicial transparency and freedom of expression.

1. Introduction

The internet has fundamentally transformed the manner in which information is created, disseminated, and preserved. Unlike traditional print media, digital information can remain accessible indefinitely through search engines, online archives, social media platforms, and judicial databases. Consequently, an individual’s past—particularly involvement in criminal proceedings—may continue to shape public perception years after the underlying legal dispute has concluded.

The permanence of online information presents serious legal and ethical concerns. A person acquitted of criminal charges, discharged after investigation, or who has successfully completed a sentence may nevertheless continue to suffer adverse social and economic consequences because search engines prominently display reports of earlier criminal proceedings. Employers, educational institutions, financial organisations, and even personal acquaintances routinely conduct internet searches before making important decisions. As a result, the continued online availability of historical criminal records may significantly impair an individual’s prospects for rehabilitation, employment, social acceptance, and psychological well-being.

The debate surrounding the Right to be Forgotten emerges from this tension between two competing constitutional values. On one hand lies an individual’s right to privacy, dignity, and reputation; on the other stands society’s interest in freedom of expression, judicial transparency, and access to information. The challenge is not whether information should be erased entirely but rather determining when continued public accessibility becomes disproportionate to the legitimate public interest served by such disclosure.

The issue has assumed greater significance in India following the Supreme Court’s recognition of privacy as a fundamental right under Article 21 of the Constitution in Justice K.S. Puttaswamy (Retd.) v. Union of India. Since then, several High Courts have addressed requests seeking removal, anonymisation, or de-indexing of judgments and criminal records from online platforms. Although these decisions indicate growing judicial acceptance of RTBF principles, they also reveal inconsistencies regarding its scope, limitations, and practical implementation.

Against this backdrop, this article analyses the legal boundaries governing the application of the Right to be Forgotten in relation to criminal records. It examines constitutional principles, statutory developments, judicial precedents, comparative international approaches, and policy considerations to evaluate whether Indian law adequately balances privacy with transparency in the digital era.

2. Understanding the Right to be Forgotten

The Right to be Forgotten (RTBF) is a legal principle that enables individuals, under specific circumstances, to request the removal, de-indexing, anonymisation, or restriction of access to personal information available on digital platforms when the continued availability of such information is no longer justified. Contrary to popular belief, the right does not necessarily require complete deletion of information from the internet. Instead, it primarily seeks to prevent unnecessary or disproportionate public accessibility through search engines and online databases.

The concept gained international prominence following the landmark judgment of the Court of Justice of the European Union (CJEU) in Google Spain SL v. Agencia Española de Protección de Datos (AEPD) and Mario Costeja González (2014). The Court held that individuals could, in appropriate circumstances, require search engine operators to remove links containing personal information that had become inadequate, irrelevant, or excessive in relation to the purpose for which it was originally processed. This judgment subsequently influenced Article 17 of the General Data Protection Regulation (GDPR), which formally recognises the “Right to Erasure.”

However, the Right to be Forgotten should not be confused with an absolute right to erase history. Courts across jurisdictions have consistently recognised that privacy must be balanced against competing public interests, including freedom of expression, investigative journalism, historical research, judicial transparency, and public safety. Consequently, RTBF operates as a qualified right, requiring a case-by-case assessment rather than automatic removal of information.

In the context of criminal records, this distinction becomes particularly significant. Information concerning an acquittal, quashed proceedings, juvenile offences, or minor crimes committed decades earlier may warrant greater privacy protection than records relating to serious offences, repeat offenders, public officials, or matters involving continuing public interest. Therefore, the legal challenge lies not in determining whether RTBF exists, but in identifying the circumstances under which privacy should prevail over the public’s right to know.

In India, although neither the Constitution nor the DPDP Act expressly codifies the Right to be Forgotten, constitutional jurisprudence increasingly recognises privacy, dignity, informational autonomy, and reputation as values capable of supporting limited forms of digital erasure. The precise contours of this evolving right, however, continue to depend upon judicial interpretation and future legitimate documents.

3. Constitutional and Statutory Framework Governing the Right to be Forgotten in India

A. Constitutional Foundation: Privacy as a Fundamental Right

The evolution of the Right to be Forgotten (RTBF) in India is intrinsically linked to the constitutional recognition of the right to privacy as a fundamental right. Before 2017, Indian courts had recognised certain facets of privacy through judicial interpretation; however, there was no authoritative pronouncement establishing privacy as an independent fundamental right.

This changed with the landmark decision of the Supreme Court in Justice K.S. Puttaswamy (Retd.) v. Union of India, where a nine-judge Constitution Bench unanimously held that the right to privacy forms an integral part of Article 21 of the Constitution and is also intertwined with the freedoms guaranteed under Part III. The Court observed that privacy is indispensable to the protection of human dignity, personal autonomy, informational self-determination, and individual liberty.

Importantly, the judgment acknowledged that informational privacy has become increasingly significant in the digital era. Individuals should possess a reasonable degree of control over the collection, processing, dissemination, and retention of their personal information. Although the Court did not expressly recognise the Right to be Forgotten, it observed that informational privacy may, in appropriate circumstances, require individuals to have greater control over the digital availability of personal data.

The decision therefore laid the constitutional foundation upon which later High Courts began recognising RTBF claims.

However, the Supreme Court also clarified that privacy is not an absolute right. Any restriction upon privacy must satisfy the tests of legality, necessity, proportionality, and procedural safeguards. Consequently, any claim seeking removal of criminal records from the public domain must be balanced against competing constitutional values, including freedom of speech and expression under Article 19(1)(a), judicial transparency, and the public’s right to receive information.

Thus, Indian constitutional jurisprudence does not treat the Right to be Forgotten as an unrestricted entitlement. Instead, it requires courts to undertake a careful balancing exercise between individual privacy and legitimate public interest.

B. Position under the Digital Personal Data Protection Act, 2023

The enactment of the Digital Personal Data Protection Act, 2023 (DPDP Act) marked India’s first comprehensive legislation governing the processing of digital personal data. The Act grants Data Principals several rights, including the right to access information, seek correction and erasure of personal data, nominate another person to exercise their rights, and seek grievance redressal.

However, it is important to distinguish the statutory right to erasure from the judicially developed Right to be Forgotten.

Under the DPDP Act, a Data Principal may require a Data Fiduciary to erase personal data that is no longer necessary for the purpose for which it was collected, subject to legal obligations requiring retention. This statutory mechanism primarily regulates the relationship between individuals and entities processing their personal data.

The Act does not expressly recognise a general right to require search engines, online news portals, or courts to remove or de-index publicly available criminal records. Consequently, the legal issues arising from online judgments, archived news reports, and publicly accessible criminal proceedings continue to depend largely upon constitutional principles and judicial discretion rather than explicit statutory provisions.

This legislative silence has attracted criticism from scholars who argue that India’s data protection framework remains incomplete in the absence of a clearly defined statutory mechanism addressing digital reputation and online criminal records.

4. Judicial Recognition of the Right to be Forgotten

Although Parliament has not expressly codified RTBF, several High Courts have gradually recognised limited forms of the right while emphasising that each case must be decided on its own facts.

A. Jorawar Singh Mundy v. Union of India (Delhi High Court, 2021)

One of the most significant Indian decisions concerning RTBF is Jorawar Singh Mundy v. Union of India.

The petitioner had been prosecuted under the Narcotic Drugs and Psychotropic Substances Act but was subsequently acquitted by the trial court. Despite his acquittal, internet searches continued to display the judgment, allegedly causing serious prejudice to his employment opportunities and professional reputation.

The Delhi High Court acknowledged that unrestricted digital accessibility of criminal proceedings may disproportionately affect individuals who have ultimately been acquitted. Recognising the continuing harm caused by search engine indexing, the Court directed the removal and de-indexing of the relevant judgment from certain online platforms.

Although the Court stopped short of declaring RTBF an absolute constitutional right, the decision represents one of the strongest judicial recognitions of informational privacy in India. It demonstrates that where continued publication serves little public interest but causes substantial prejudice to an acquitted individual, privacy considerations may justify limited restrictions upon digital accessibility.

B. Dharamraj Bhanushankar Dave v. State of Gujarat

The Gujarat High Court adopted a comparatively cautious approach.

The petitioner sought removal of a judgment available on online legal databases after criminal proceedings had concluded. The Court declined to grant the requested relief, observing that judicial records form part of the public record and ordinarily should remain accessible.

The decision emphasised the principle of open justice, under which judicial proceedings are presumed to be conducted transparently. Public access to judgments promotes judicial accountability, consistency in legal reasoning, and public confidence in the administration of justice.

This judgment illustrates that privacy interests cannot automatically override the constitutional value of judicial transparency merely because criminal proceedings have concluded.

C. Subhranshu Rout v. State of Odisha

Although primarily dealing with dissemination of intimate images, the Odisha High Court made important observations concerning the Right to be Forgotten.

The Court recognised that modern technology enables permanent circulation of personal information capable of causing continuing psychological harm. It observed that victims should possess meaningful remedies against the indefinite online availability of sensitive personal material.

While the case did not directly concern criminal records, it significantly contributed to Indian jurisprudence by acknowledging that informational privacy extends beyond physical intrusion and includes protection against perpetual digital exposure.

Its reasoning has frequently been cited in discussions regarding the broader development of RTBF in India.

D. X v. Registrar General, High Court of Madras

The Madras High Court further advanced Indian RTBF jurisprudence by considering requests for anonymisation of judicial records involving sensitive personal matters.

The Court recognised that indiscriminate publication of parties’ identities in certain categories of litigation may unnecessarily prejudice their future lives without materially advancing public interest.

Instead of ordering complete deletion of judicial records, the Court favoured anonymisation, thereby preserving judicial transparency while simultaneously protecting individual dignity and privacy.

This approach represents an important middle path. Rather than rewriting history, anonymisation limits unnecessary identification without compromising the integrity of judicial precedents.

Emerging Judicial Trends

A careful examination of these decisions reveals several common themes.

First, Indian courts increasingly acknowledge that digital permanence fundamentally alters the consequences of criminal proceedings. Information that once faded with time now remains instantly accessible through search engines, often long after its practical relevance has ended.

Secondly, courts consistently reject the notion that RTBF constitutes an absolute right. Every request requires balancing privacy against competing constitutional values, including freedom of expression, open justice, public interest, and access to judicial records.

Finally, Indian jurisprudence appears to favour context-specific remedies such as de-indexing, anonymisation, or restricted accessibility rather than complete deletion of judicial records. This reflects an attempt to reconcile individual rehabilitation with society’s legitimate interest in maintaining transparent judicial institutions.

Consequently, while India has not yet enacted comprehensive statutory provisions governing RTBF, judicial developments indicate a gradual movement towards recognising limited forms of digital erasure where continued public accessibility becomes disproportionate to the legitimate public interest served.

5. Comparative Perspectives: The Right to be Forgotten in International Jurisdictions

The debate surrounding the Right to be Forgotten (RTBF) is not unique to India. Several jurisdictions have attempted to reconcile the competing interests of privacy, freedom of expression, judicial transparency, and public access to information. While the European Union has developed the most comprehensive legal framework, countries such as the United Kingdom, Canada, Australia, and the United States have adopted differing approaches based on their constitutional traditions and public policy priorities. A comparative analysis demonstrates that although the concept of RTBF is increasingly recognised, no jurisdiction treats it as an absolute right.

A. European Union: The Birthplace of the Right to be Forgotten

The modern understanding of RTBF originated with the landmark judgment of the Court of Justice of the European Union (CJEU) in Google Spain SL v. Agencia Española de Protección de Datos (AEPD) and Mario Costeja González (2014).

The dispute arose when Mario Costeja González sought the removal of search results linking his name to a newspaper notice concerning the auction of his property for the recovery of social security debts. Although the proceedings had been lawfully published years earlier, the applicant argued that the continued prominence of these links had become irrelevant and disproportionately affected his reputation.

The CJEU held that search engine operators function as data controllers because they determine the means and purposes of processing personal information. Consequently, individuals may request search engines to remove links containing personal information that has become inadequate, irrelevant, no longer relevant, or excessive in relation to the purposes for which it was processed.

Importantly, the Court did not require deletion of the original newspaper publication. Instead, it directed the de-indexing of search results, thereby reducing public accessibility while preserving historical records. This distinction illustrates that RTBF primarily concerns limiting unnecessary discoverability rather than erasing history itself.

The decision fundamentally reshaped global privacy law and later influenced the incorporation of the Right to Erasure under Article 17 of the General Data Protection Regulation (GDPR).

B. Article 17 of the GDPR

The GDPR provides the most comprehensive statutory recognition of RTBF through Article 17, which grants individuals the right to obtain the erasure of personal data under specified circumstances. These include situations where the data is no longer necessary for the purposes for which it was collected, where consent has been withdrawn, where processing is unlawful, or where the individual successfully objects to the processing.

However, Article 17 also makes it clear that the right is not absolute. Erasure may be refused where continued processing is necessary for:

• the exercise of freedom of expression and information;
• compliance with a legal obligation;
• reasons of public interest in public health;
• scientific or historical research;
• archiving in the public interest; or
• the establishment, exercise, or defence of legal claims.

This carefully structured balancing mechanism reflects the European approach of protecting privacy without undermining democratic values such as transparency and freedom of expression.

C. Google LLC v. CNIL (2019)

The scope of RTBF was further clarified in Google LLC v. Commission Nationale de l’Informatique et des Libertés (CNIL).

The central question before the CJEU was whether a successful RTBF request required Google to remove search results globally or only within European Union Member States.

The Court held that the GDPR does not require worldwide de-indexing. Instead, removal within EU Member States generally satisfies the requirements of European law. Nevertheless, Member States may require broader removal where justified under their domestic legal frameworks.

This judgment recognised the importance of respecting national sovereignty and avoiding conflicts between different legal systems. It also acknowledged that countries outside the European Union may legitimately prioritise freedom of expression differently from European jurisdictions.

The decision is particularly relevant for India because it demonstrates that RTBF must operate within territorial and constitutional limits rather than being applied universally.

6. Comparative Position in Other Jurisdictions

United Kingdom

Following Brexit, the United Kingdom retained substantially similar data protection principles through the UK GDPR and the Data Protection Act 2018. Individuals may seek erasure of personal information, but courts continue to balance privacy against freedom of expression, journalistic freedom, and public interest. Criminal records involving public officials, serious offences, or matters of continuing public concern generally remain accessible.

Canada

Canadian courts have adopted a more cautious approach. While privacy receives constitutional protection through the Canadian Charter and statutory privacy legislation, courts generally favour contextual balancing over automatic removal of information. Search engines may be required to restrict access in exceptional circumstances, particularly where ongoing publication causes disproportionate harm without advancing legitimate public interests.

Australia

Australia has not formally recognised a general Right to be Forgotten. Instead, privacy disputes are governed primarily by the Privacy Act 1988 and principles concerning misuse of personal information. Debate continues regarding whether a broader statutory RTBF should be introduced as digital technologies increasingly affect individual reputations.

United States

The United States represents perhaps the strongest contrast to the European model. The First Amendment’s robust protection of freedom of speech and freedom of the press generally prevents courts from recognising a broad Right to be Forgotten. Public access to criminal records is considered an important component of governmental transparency and democratic accountability.

Although certain state laws permit expungement or sealing of criminal records, these mechanisms ordinarily affect official governmental databases rather than requiring search engines or media organisations to remove historical reporting. Consequently, the American approach places considerably greater emphasis upon freedom of expression than informational privacy.

7. Legal Boundaries of the Right to be Forgotten in Relation to Criminal Records

The preceding discussion demonstrates that no legal system recognises RTBF as an unrestricted right. Several important legal boundaries determine whether criminal records should remain publicly accessible.

A. Public Interest

Where criminal proceedings involve public officials, corruption, financial fraud, organised crime, terrorism, or offences affecting public safety, continued public access frequently serves a legitimate democratic purpose. The public possesses a legitimate interest in obtaining information concerning individuals occupying positions of trust and authority.

B. Open Justice

The principle of open justice constitutes one of the cornerstones of modern constitutional democracies. Judicial proceedings are ordinarily conducted in public to promote accountability, transparency, and public confidence in the administration of justice.

Routine deletion of judgments could undermine legal certainty, impede academic research, and weaken public oversight of judicial institutions. Consequently, courts generally prefer anonymisation or limited de-indexing rather than complete removal of judicial records.

C. Freedom of Speech and Freedom of the Press

Article 19(1)(a) of the Constitution guarantees freedom of speech and expression, while independent journalism performs an essential democratic function by informing the public regarding criminal proceedings and governmental action.

Requiring media organisations to erase truthful historical reporting merely because the passage of time has rendered it inconvenient could create significant chilling effects upon investigative journalism and archival reporting.

D. Rehabilitation and Human Dignity

Conversely, criminal justice systems increasingly recognise rehabilitation as an essential objective. Individuals who have been acquitted, discharged, or have completed their sentences should not necessarily face lifelong social exclusion because of permanently accessible digital records.

The internet’s extraordinary memory has fundamentally altered the practical consequences of criminal proceedings. Information that would previously have faded into obscurity now remains instantly searchable worldwide, often frustrating successful reintegration into society.

Accordingly, courts increasingly evaluate whether continued online accessibility serves any meaningful public interest or merely perpetuates disproportionate reputational harm.

E. A Proportionality-Based Approach

A consistent theme emerging from comparative jurisprudence is the adoption of a proportionality test. Instead of granting automatic removal or unconditional public access, courts evaluate several factors, including:

• the seriousness of the offence;
• whether the individual was convicted or acquitted;
• the time elapsed since the proceedings;
• the continuing public interest in disclosure;
• the individual’s role in public life;
• the likelihood of ongoing reputational harm; and
• the availability of less restrictive alternatives such as anonymisation or de-indexing.

This contextual balancing exercise enables courts to protect both privacy and democratic transparency without treating either value as absolute.

8. Critical Evaluation and Recommendations

Although Indian courts have gradually acknowledged the importance of informational privacy, the legal position regarding the Right to be Forgotten (RTBF) remains fragmented. The absence of a comprehensive statutory framework means that individuals seeking removal or de-indexing of online criminal records must rely primarily on constitutional remedies and judicial discretion. While this case-by-case approach provides flexibility, it also results in inconsistent outcomes and legal uncertainty.

One of the principal shortcomings of the present framework is the absence of uniform criteria for deciding RTBF claims. High Courts have adopted differing approaches depending upon the facts before them, resulting in uncertainty for litigants, search engine operators, media organisations and judicial institutions. In some cases, courts have directed de-indexing of judgments from search engines, whereas in others they have emphasised the doctrine of open justice and declined to interfere with public records. Such inconsistencies indicate the need for legislative guidance.

Another concern relates to the Digital Personal Data Protection Act, 2023. While the Act recognises the right to correction and erasure of personal data held by Data Fiduciaries, it does not expressly address the continued online availability of judicial records, archived news reports or search engine results. Consequently, the statutory framework does not adequately resolve disputes concerning digital reputation after criminal proceedings have concluded.

The increasing digitisation of court records further complicates the issue. Online publication undoubtedly enhances transparency, accessibility and public confidence in the judicial system. However, permanent and unrestricted indexing of criminal proceedings may inadvertently undermine the rehabilitative objectives of criminal justice, particularly where individuals have been acquitted, discharged or have completed their sentences many years earlier. The internet’s ability to preserve information indefinitely has fundamentally altered the balance between public knowledge and personal privacy.

To achieve a more coherent legal framework, several reforms deserve consideration.

First, Parliament should consider expressly recognising a limited Right to be Forgotten within future amendments to the DPDP framework or through separate legislation dealing specifically with digital reputation and online judicial records. Such recognition should clearly define the circumstances in which removal, anonymisation or de-indexing may be ordered.

Secondly, statutory guidelines should establish objective factors that courts and regulatory authorities must consider while determining RTBF applications. These factors may include the seriousness of the offence, whether the individual was acquitted or convicted, the time elapsed since the proceedings, the continuing public interest in disclosure, the individual’s public status and the potential harm caused by continued online accessibility.

Thirdly, anonymisation should ordinarily be preferred over complete deletion. Removing names, personal identifiers and searchable links often protects individual dignity without compromising judicial transparency or the precedential value of court decisions. This balanced approach has already found support in several Indian judicial decisions and reflects international best practices.

Fourthly, search engine operators should be required to establish transparent and accessible grievance mechanisms enabling individuals to seek de-indexing where justified by law. Such requests should be evaluated through clearly defined procedures subject to judicial review, thereby preventing arbitrary removal of information while ensuring effective remedies for affected persons.

Finally, public awareness regarding digital privacy should be strengthened. Many individuals remain unaware that historical criminal records, even where proceedings have ended in acquittal, may continue to circulate online indefinitely. Legal aid institutions, digital literacy programmes and government awareness campaigns can play an important role in educating citizens about available legal remedies and responsible data practices.

A carefully designed statutory framework adopting these recommendations would provide greater certainty to individuals, businesses, media organisations and judicial institutions while ensuring that privacy and transparency continue to coexist within a constitutional democracy.

9. Conclusion

The Right to be Forgotten represents one of the most significant developments in contemporary privacy law. It reflects an evolving recognition that digital permanence has fundamentally transformed the consequences of criminal proceedings. In an era where search engines preserve information indefinitely, individuals who have been acquitted, discharged or successfully rehabilitated may continue to suffer reputational harm long after legal proceedings have concluded. The challenge for modern legal systems is therefore not whether information should remain available, but whether its continued unrestricted accessibility remains proportionate to the legitimate public interest it serves.

Indian jurisprudence has taken important steps towards recognising informational privacy through the landmark judgment in Justice K.S. Puttaswamy (Retd.) v. Union of India and subsequent High Court decisions such as Jorawar Singh Mundy. Nevertheless, the absence of explicit statutory recognition under the Digital Personal Data Protection Act, 2023 leaves considerable uncertainty regarding the scope, procedure and enforcement of RTBF claims. Courts continue to rely on constitutional principles and equitable balancing, resulting in divergent outcomes across jurisdictions.

Comparative analysis demonstrates that even jurisdictions with advanced data protection regimes, particularly the European Union, do not treat RTBF as an absolute entitlement. Privacy must consistently be balanced against freedom of expression, judicial transparency, historical accuracy, public safety and democratic accountability. The European experience therefore offers valuable guidance but cannot be transplanted into the Indian legal framework without considering India’s constitutional structure and socio-legal context.

Going forward, India should adopt a nuanced, proportionality-based model that protects individual dignity while preserving public access to genuinely significant information. Legislative clarification, structured judicial guidelines and greater reliance on anonymisation and de-indexing, rather than complete deletion, would better reconcile competing constitutional values. Such an approach would uphold the rehabilitative ideals of criminal justice without compromising transparency or freedom of expression.

Ultimately, the Right to be Forgotten should not be understood as a right to rewrite history. Rather, it should be viewed as a carefully balanced legal mechanism that enables individuals to move beyond their past where continued digital exposure no longer serves any legitimate public purpose. By developing a coherent statutory framework grounded in constitutional principles, India can ensure that technological progress strengthens rather than diminishes the values of dignity, privacy and justice.