Online Reporters Entitled To Publish Judgment As It Is, It Is Part Of Public Record: SC Stays Direction To Legal Portal To Remove Judgment In Rape Case Based On 'Right To Be Forgotten'

The Supreme Court has issued notice in a Special Leave Petition (SLP) filed by Ikanoon Software Development Pvt. Ltd. (Indian Kanoon) against the Madras High Court's Judgment passed in February, whereby it had directed it to remove a Judgment from its website on the ground of the right to be forgotten.

The Bench of Chief Justice DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra also stayed the directions contained in the impugned Judgment to remove a Judgment of the High Court whereby the Petitioner before the High Court was acquitted in a rape case.

"Any publisher would be justified in saying that I am publishing the judgment as it is. ...He (the online reporter) is entitled to publish every judgment of the Court as it is", the CJI remarked during the hearing.

At the outset, the Counsel for the portal, Indian Kanoon, submitted, "I have been directed by a Division Bench for the removal of a judgment." He also submitted that only Indian Kanoon has been directed to pull down the judgment; other news portals have not been given any such direction.

"How are you affected by an order for redaction?" the CJI asked the Counsel.

To this, the Counsel clarified that the High Court's direction is not for redaction, but for the complete removal of the judgment. "Whereas, the writ petition (before the High Court) only prays for redaction of the name of the respondent 1 and the personal details," he submitted.

The Court asked the Counsel for the respondent, "Assuming you are acquitted, how can the High Court direct (Indian Kanoon) to pull down the judgment?"

The CJI remarked, "Once a judgment is delivered by a Court, it is part of the public record. How can anybody direct that the judgment should be pulled down? We, as the Supreme Court, entertain criminal appeals. Some appeals, we may convict the accused, and in some, we may acquit the accused. Once we deliver a judgment, it is part of the public record of the state."

“In a given case, if there is a case of child sexual abuse, we always say, redact the names of the victim, witnesses, or to mask the identity, that's the jurisdiction of the Court. But to say that the judgment will be pulled down is very far-fetched. Some will say, my commercial secrets are involved in an arbitration case, pull down the judgment in the arbitration case. That will have very serious ramifications,” the CJI said.

The Counsel for the respondent submitted that the retracted judgment is allowed to be published.

The Bench said that the judgment actually shows that the petitioner was acquitted in the case. "Suppose in a given case somebody is convicted and the person serves out his sentence. That doesn't mean that he will get the judgment pulled out from the website", the CJI said.

The Counsel for the Petitioner before the High Court submitted that the website is free to publish the redacted judgment.

"But then that order you should have obtained from the criminal court which acquitted you. Any publisher would be justified in saying that I am publishing the judgment as it is. ...He (the law portal) is entitled to publish every judgment of the Court as it is," the CJI responded.

The Counsel for the respondent informed the Bench that he is facing difficulty getting citizenship in Australia because of the publication of the judgment.

The Counsel for India Kanoon told the Court that there is a divergence of view among High Courts on the "right to be forgotten". He submitted that the Kerala High Court and the Gujarat High Court have held that there is no right to be forgotten and the Madras High Court has held that there is a right to be forgotten.

"Take the reverse. Suppose somebody has been convicted of an offence under Section 467 of IPC. That person suffers the imprisonment and has served out the sentence. Can that person come back and say that the fact that judgment is borne on the website of the Supreme Court or any other High Court means people know that he was convicted and sentenced? Now pull it down! Can't be. It is a public record", CJI Chandrachud said.

"We have to settle the law, a similar matter is pending, the Alka Malhotra one. Tag it along. In the meantime, the directions contained in the impugned judgment of the High Court shall remain stayed," the Court ordered.

Pertinently, on February 27, the Madras High Court had granted relief to a man acquitted of charges of cheating and sexual assault, directing the High Court Registry to redact his name and other identifying details from the judgment. The High Court had allowed 'Indian Kanoon' for the publication or uploading of only the redacted version of the judgment.

"Thus, there is a direction to R4 to take down the judgment in Crl.A. (MD) No. 321 of 2011 dated 30.04.2014 forthwith. There is a further direction to R1 to R3 to redact the name and other details of the Writ Petitioner relating to his identity from judgment dated 30.04.2014 in Crl.A.(MD) No.321 of 2011 and ensure that only the redacted judgment is available for publication or for uploading. Needless to say, the full and unredacted version of the judgment shall continue to be part of the record of the Court," the High Court had ordered.

The Court had observed, "The writ petitioner has moved on and there is no public interest in retaining, as part of public record, a chapter of his life that has no relevance now. The fact that the ‘principle of fresh start’ has been statutorily enshrined under the Juvenile Justice (Care and protection of Children), Act, 2015 cannot lead to the conclusion that adults are not entitled to the same."

The Division Bench had recognized the concept of the "right to be forgotten" and said, "The right to be forgotten was first recognized in French jurisprudence and referred to as le droit à l'oubli. The right was conferred upon convicts who had been released to help them make a fresh start in their lives, independent of their past by allowing them to seek erasure of their names from official databases."

Cause Title: Ikanoon Software Development Pvt. Ltd v. Karthick Theodore [SLP(C) No. 15311/2024]