Indian Kanoon files counter-affidavit in response to plea filled before Kerala High Court

Indian Kanoon files counter-affidavit in response to plea filled before Kerala High Court

It states that the right to privacy under Article 21 cannot give rise to the claim that court records cannot be published

A petition was filed before the Kerala High Court seeking the removal of a person's name from the court documents made available online on the legal search engine 'Indian Kanoon'. Advocates Santosh Mathew, Anil Sebastian Pulickel and lawyers associated with Internet Freedom Foundation represented Indian Kanoon in the court proceedings.

The petitioner, a consultant dentist, approached the court with the grievance that a bail order published on Indian Kanoon containing his personal details was the first result of an internet search, despite his subsequent acquittal in the case.

Subsequently, the details of the crime for which he was earlier accused as well as his personal details were reproduced in the bail order. Moreover, according to the petitioner the filing details of the crime, as specified in the bail order, were specious.

The petitioner described the experience as traumatic, particularly because the search result displayed his name, father's name, address, and a wrong crime number, the petitioner stated that the same invades his right to privacy.

The petitioner approached the Kerala High against Google Inc. for the search result and Indian Kanoon for including the bail order with the petitioner's personal information after an objection was presented to Indian Kanoon's database and is stated to have not received to any response.

The petitioner stated, "even if a law reporter has the right to publish court judgments, their right does not extend to show a summary of past criminal records in a google search."

The petitioner was of the opinion that the popular judgment database could de-index the particular bail order from its search result, the petitioner has sought a recognition of his right to be forgotten as a facade of the right to privacy.

Indian Kanoon has filed a counter-affidavit stating that the right to privacy cannot be extended to protect an individual from publications based on public records, which include court orders as public records. It placed reliance on the Supreme Court's rulings in R Rajagopal v. State of Tamil Nadu, KS Puttaswamy's case and the Navtej Singh Johar case, where it has been submitted that "the right to privacy under Article 21 cannot give rise to the claim that court records cannot be published."

Among other grounds, it was also contended that the petition seeks to bypass legislative procedure underway to statutorily recognize the 'right to be forgotten.' Further reference was placed on Clause 20 of the Personal Data Protection Bill, 2019, it was noted further that the legislature was actively considering the viability of recognising the right to be forgotten. As such, the counter-affidavit describes the instant court proceedings as 'premature.'

Indian Kanoon's counter-affidavit describes the petition as "contrary to and in complete ignorance of the law of privacy in India, especially when the law allows publication of matters that are public record, including court records and orders of courts and tribunals."

Citing R Rajagopal v. State of Tamil Nadu case, Indian Kanoon additionally highlighted the correctness of the proposition raised by the petitioner that Rajagopal would have to be given a rethink in light of the Supreme Court's ruling in KS Puttaswamy v. Union of India.

It was pointed out that in the Puttaswamy judgment it overtly referred to and endorsed Rajagopal in several paragraphs, Indian Kanoon asserts that the right to privacy cannot be used to prevent the publication of court orders.

It was additionally asserted that the publication of a court order can be prevented only in pursuance of a court order if the court found the order to interfere with the administration of justice.

Indian Kanoon submitted in its counter that the instance through which a court order could be redacted if a statutory provision barred the publication of these orders. For the same reasons the database refrains from publishing the identities of victims of sexual violence on its database, in light of the statutory bar in Section 228A of the Indian Penal Code, it added.

However, it was highlighted that "the present case does not come within the scope of such an exception and the Petitioner is seeking to restrict the right of people to know about judicial orders and proceedings, without a statutory basis, which should be denied."

Contending that the website had responded to the petitioner's representations earlier, Indian Kanoon queries why the court which was responsible for the order had not been approached to redact/correct the petitioner's details.

The petitioner's suggestion to delink/de-index the court order from the website was being described as a restriction on the right to free speech and expression, not backed by any statute.

The proceedings were labelled as an abuse of process, the judgment database sought for the dismissal of the petition.