In 2017, a rape victim filed a petition before the Kerala High Court to pass an order directing the online web portal ‘indiankanoon.com’ to strike off her name published in a Kerala High Court judgment on its website and also prevent her name from being visible in the search results of Google, Yahoo, etc.
The name of the rape
victim appeared online on ‘indiankanoon.com’ in the judgment of the Kerala High
Court which was passed in regards to her. Moreover, the judgment appeared in
the general search results of Google and Yahoo.
She stated that the
publication of her name was without authorization/prior permission from the
court or her which is in clear contravention of the mandate provided under Rule
5 of the Information Technology (Reasonable Security Practises and Procedures
and Sensitive Personal Data or Information) Rules, 2011. Her grievance extended
to the search results of Google and Yahoo.
According to her, the
publications violated her right to privacy and right to a dignified life
enshrined under Art. 21 of the Constitution of India as it has diminished her
job prospects and social life which has brought upon further shame and
destitution upon her. Furthermore, the essence of Section 228A of IPC is also
228A of the Indian Penal Code:
Under Section 228A of
IPC, disclosure of the identity of a rape victim may amount to two years
imprisonment and fine. She also contented her ‘right to be forgotten’. In State of Karnataka v. Puttaraja AIR 2004
SC 433, the Apex Court of India held that the names of the rape victims
should not be mentioned in court cases keeping in mind the social object of
preventing social victimization or ostracism of the victim and hence, in line
with Sec. 228A.
is “Right to be Forgotten”?
The roots of this
phrase ‘Right to be Forgotten’ can be traced back to the ‘Right to Oblivion’ in
French Jurisprudence. The rationale of such a principle was to give an
opportunity to the offenders to object against the publication in regards to
their crimes and strike off their names for an effective social integration.
This right went into practice in the European Union and Argentina as well and
has been seen as a tool for social integration and development of a person. In Vasunathan v. Registrar General, 2017 SCC
OnLine Kar 424, Karnataka High Court, while directing its registry to
remove the name of the victim from being reflected in the public domain,
observed, “This is in line with the trend in Western countries of ‘right to be
forgotten’ in sensitive cases involving women in general and highly sensitive
cases involving rape or affecting the modesty and reputation of the person
Recently, a tussle has
been going on between France and Google over the ‘right to be forgotten’ where
France is trying to impose such rule upon Google to censor its search results. In
India, there are no provisions under Information Technology Act, 2000 or any
other statutes which prevents Google or any other search engine to enforce the
‘right to be forgotten’ as the scope of public domain is pretty scary. It will
wrangle anything out from the world. To prevent such anomalies, the weapon of
Judicial Activism is a requirement.
Recognizing the ‘right
to be forgotten’ and confidentiality of her identity under Sec. 228A of IPC,
Justice Shaji P. Chaly of the Kerala High Court directed the web portal
indiankanoon.com to remove her name from its website. However, no such direction
has been passed towards Google and Yahoo.