10 March 2017 03 29 PM
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 diluted.
Section 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.
What 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 concerned.”
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.