The right to be forgotten: balancing privacy against open justice and free speech

Question (10 marks, ~150 words):

The 'right to be forgotten' seeks to reconcile informational privacy with open justice and free speech. Discuss its constitutional basis in India and critically examine the challenges in operationalising it.

Introduction:

• The 'right to be forgotten' — erasure/de-indexing of harmful data with no public interest — was framed coherently for India by a Delhi High Court ruling (May 2026), rooting it in Article 21.

Constitutional & legal basis:

• Puttaswamy (2017) made privacy, including informational privacy, a fundamental right under Article 21.
• Global lineage: Mario Costeja González (2014) → GDPR Article 17.
• DPDP Act, 2023 (Section 12) gives a limited, consent-based erasure right, silent on judicial records.

The Delhi HC framework:

• Structured proportionality; least-intrusive means — mask names, keep facts; case-number access preserved; deadline for legal databases.

The conflicts:

• Open justice, free speech (Article 19(1)(a)) and the public's right to know limit the right; risk of reputation-laundering.

Challenges:

• Enforcement — de-indexing cannot stop mirrors, archives, social sharing; who decides (platforms vs board vs courts); DPDP rules and Data Protection Board not yet effective.

Way forward & conclusion:

• A tiered decision system plus a fully operational DPDP framework; until the Supreme Court settles it, the ruling stays largely declaratory — privacy and open justice reconciled, not traded off.