Abstract
This paper addresses the problem of the current conflict between the Right to Be Forgotten (RTBF) as a part of informational privacy and the principles of Freedom of Speech and Open Justice. As court archives go more digital, those acquitted, discharged or involved in private family matters are suffering constant reputational damage from simple name-based internet searches. The paper focuses on key judicial pronouncements after 2025, especially the landmark 144-page judgment of the Delhi High Court in Laksh Vir Singh Yadav v. Union of India & Ors. (May, 2026), to explore the shift from random judicial decisions to structured and proportional reliefs by the courts. The paper “De-indexing,” which removes links to search engines for name-based queries, is compared to “masking,” which anonymizes digital records. It also considers the right of the public to information within the constitutional framework. This contemporary method ensures that individual dignity is preserved without compromising the sanctity of legal documentation.
Keywords: Right to be Forgotten, Freedom of Expression, De-listing, Open Justice, Court Records, Information Privacy, Digital Data Protection of Individuals, Comparative Law.
I. Introduction
In the digital age, the idea of “practical obscurity” a natural barrier protecting people from past legal missteps has been completely transformed. In the pre-digital era, court records were technically public, but to access them, one had to go to a court registry, know the case numbers, or do a diligent search of dusty paper archives. The physical exertion inadvertently protected those rehabilitated, acquitted or discharged. Commercial search engines and specialized online legal databases index public court records indiscriminately today. A quick search by a potential employer, landlord, neighbour or family member can easily turn up a past legal issue, providing a frozen snapshot of someone’s worst moment in time without context.
This situation presents a major conflict with constitutional rights. The Indian Constitution has a thing that says people are free to say what they think and the public has the right to know things. This is also said in Article 19(1)(a) of the Indian Constitution and in free speech rules around the world. It is like the idea of “Open Justice” which says that courts should be transparent so that people can trust them and they can be held responsible.
At the time people have the right to privacy, which is a big part of the right to life and liberty as said in the Indian Constitution under Article 21. This was also talked about in the K.S. Puttaswamy v. Union of India case in 2017, [1]where it was said that people have the right to control their own personal information.
By 2026 courts were having a time dealing with the fact that things on the internet stay there forever. If someone has been found not guilty of a crime. If their case is private should their name still be linked to that old case on the internet? This paper looks at how laws made after 2025 have tried to balance these things by making rules that apply everywhere instead of just making decisions on a case-, by-case basis.
II. Research Methodology
This study uses a doctrinal and analytical research approach. Sources of data include recent constitutional decisions and high courts as well as statutory data protection laws, especially the Digital Personal Data Protection Act, 2023 (DPDPA). [2]Other sources are the intermediate guidelines like Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.[3] The comparison of Indian law is done with the General Data Protection Regulation of the European Union, especially Article 17 where the Right to Erasure was introduced. The secondary data used includes academic publications, legal analysis, and legal briefs on digital rights till mid-2026. This research focuses on the de-indexing and masking of judicial data available publicly and trial cases, and not on general internet content issues.
III. Review of Literature
Early legal studies on the Right to Be Forgotten [4]centered on the European Court of Justice’s (ECJ), which determined that individuals could ask search engines to unlink search results under their name if the information was not relevant or appropriate.[5] Initial academic responses in India cautioned against applying this standard to the judicial system. Critics argued that using an administrative data-erasure approach on court judgments could alter historical records, harm transparency, and undermine the media’s role as a public watchdog. [6]However, legal discussions after 2025 indicate a shift in perspective. Scholars have begun exploring “algorithmic distortion.” Arguments highlight that search engine algorithms often favour sensational content, meaning initial arrest reports or unproven charges are more likely to appear prominently than a later notice of acquittal. Recent academic consensus has shifted from advocating for complete data removal to a model of “functional obscurity.” Legal scholars stress that public interest in a case declines over time if a person is cleared of wrongdoing, or if the case involves sensitive issues like family or medical matters. The literature suggests that while a judgment should still be accessible to diligent researchers tracking legal precedents, it should not be easily found by ordinary users searching by name.
IV. Method: The Post-2025 Proportionality Test
The main judicial method established by mid-2026 rejects the idea that the Right to Be Forgotten is absolute. Instead, it uses a seven-factor proportionality balancing test to handle requests for limiting access to public legal records. This method, developed by the Delhi High Court in its 2026 ruling (Laksh Vir Singh Yadav v. Union of India & Ors., involving 35 related writ petitions), evaluates whether ongoing public access unduly intrudes on privacy compared to the public benefit of disclosure.
V. Statutory Frameworks and Constitutional Realities
1. The European Paradigm: GDPR Article 17 and Its Exemptions
Right to Be Forgotten in the European Union is provided by Article 17 of the General Data Protection Regulation (GDPR) (Regulation (EU) 2016/679).[7] The Right to Be Forgotten is referred to as “Right to Erasure.” In accordance with Article 17(1), an individual has the right to request a data controller to erase his/her personal data, when the following conditions arise, among others: the data is no longer necessary; and when the individual object to the processing of his/her data in accordance with Article 21.
The Right to Erasure is not an absolute right but is qualified. As stated in Article 17(3)(a), this right cannot be applied when the processing of data is “necessary for exercising the right of freedom of expression and information.” In addition, Articles 17(3)(b) and 17(3)(d) exclude this right in legal obligation and archiving in the public interest.
2. The American Counterweight: The First Amendment and Practical Obscurity
Unlike the EU’s focus on data, the United States views the lasting nature of court records through the strict lens of the First Amendment. According to established Supreme Court doctrine, the press and the public have a near-absolute right to access and accurately report on public judicial records (Murray, 2018).
American scholars and privacy advocates have increasingly called for a social or legal equivalent to the Right to Be Forgotten (RTBF). They want to create opportunities for second chances and clean slates. However, constitutional limits prevent the enforcement of a European-style de-indexing mandate against private platforms (Murray, 2018). In the U.S., privacy rights usually take a backseat to freedom of expression unless the information is specifically sealed or removed through state laws. The American system heavily relies on “practical obscurity,” a concept rooted in history, which makes it ill-prepared to manage the algorithmic spread of public court data without significant legislative changes.
VI. The Post-2025 Judicial Shift: Balanced Proportionality
Indian digital and constitutional law reached an important turning point recently. Although the main ideas of the proportionality test were established in K.S. Puttaswamy (2017), the judicial landscape after 2025 shows a clear shift toward “Balanced Proportionality.” [8]
This shift in data privacy law can be seen in recent legal approaches, particularly in the Delhi High Court’s comprehensive 144-page ruling in mid-2026. This judgment moves away from viewing privacy and free speech as opposing forces, instead promoting a concept of balanced proportionality. The key issue in this development is the conflict between the principle of open justice, which calls for transparent and publicly accessible court records, and informational privacy, which protects an individual’s Right to Be Forgotten (RTBF). Rather than erasing history or deleting judgments, modern law employs “de-indexing.” This method instructs commercial search engines and legal databases to turn off name-based search functions. This would remove a private citizen’s name as a permanent keyword while keeping the full historical record intact and available through internal court channels.
To assess when de-indexing is warranted, courts apply a detailed constitutional proportionality test that looks at the nature of the offense and how much time has passed. Factors strongly favouring the removal of personal identifiers include a positive legal outcome, such as an acquittal, discharge, or case dismissal. It also includes the settling of purely private matters. However, public accessibility is not compromised when the applicant is considered a public personality or the case is one of gross misconduct.
According to the present policies, courts ensure that only the names and identities are removed, thus making the entire process of jurisprudence completely accessible. Also, since digital footprints cross borders, these frameworks are meant to work on a global scale across commercial platforms. This way, open justice remains accountable without serving as a tool for ongoing algorithm-driven stigma.
The 2026 Indian Jurisprudential Leap
A significant legal framework took shape in the High Court of Delhi’s ruling in Laksh Vir Singh Yadav v. Union of India & Ors (May 29, 2026).[9] In this case, the court addressed over 30 combined constitutional petitions and determined that the right to be forgotten is an important aspect of informational privacy under Article 21 (the Right to Life and Liberty). [10]
The landmark ruling clearly separated open justice from ongoing digital targeting, stating:
“The principle of open justice was conceived to ensure that the judicial process is accessible and fully transparent. It would be incongruous if the same serves as justification for the perpetual and indiscriminate amplification of a person’s worst travails with legal processes.”
The court concluded that while open justice requires records to be accessible through clear means (like case numbers, legal citations, or court names), it does not permit commercial search engines to use a private individual’s name as a permanent, global key for retrieval.
VII. Operational Execution of Remedies
After a petitioner meets the proportionality test, the court uses a two-layer technical remedy that separates the law’s substance from the person’s identity:
a) De-indexing (Search Engine Level)
Companies like Google, Microsoft Bing, and specialized legal databases such as Indian Kanoon must disable their name-based search functions for specific URLs or judgments. If someone types the petitioner’s name into the search bar, the judgment will not come up. However, the original URL remains untouched; it stays accessible if searched through its legal citation, case number, or specific legal terms. The court insists that these de-indexing orders apply globally to ensure effectiveness across international digital spaces.
b) Masking (Database and Registry Level)
Concurrently, however, the court’s Registrar General and any digital publisher of the law must substitute personal identifiers such as names, addresses, or parentage for pseudonyms or random initials, such as “XYZ v. State” in the public digital version. Significantly, the legal rationale, facts, and principles in the case continue to be unchanged and thereby retain their value as precedent. The original, complete, and unaltered version is securely stored within the court’s internal archives, accessible only with formal judicial approval.
(i) Evaluating the Balancing Test: De-Indexing vs. Free Speech
Since 2025, courts have moved away from outright censorship. They now use a balancing test to figure out if the public’s need for access is more important than a person’s dignity and privacy.
Thresholds for Permissible De-indexing and Masking
Judicial relief, which involves de-indexing name-based search results from all global search engines and legal databases, is preferred in certain instances:
– Legal Acquittal: The proceedings concluded in an acquittal, discharge, disposal, or dismissal of charges.
– Obsolescence: The legal data has become obsolete in relation to public debates over time.
– Disproportionate Private Injury: Maintaining access to the record will result in significant injury to the individual in terms of his/her livelihood, rehabilitation, and/or psychological well-being, and does not serve any valid public interest.
– Types of Litigants: The lawsuits deal with sensitive and private issues, like domestic disagreements and custody suits, among others.
(ii) Technical Implementation: De-Indexing vs. Deletion
The current solution focuses on separating data rather than deleting it. To protect free speech and maintain historical accuracy, courts use two different methods:
a) Global De-Indexing / De-linking: Companies like Google and local legal repositories, such as Indian Kanoon, are instructed to turn off name-based search functions. The court documents remain fully intact online, but they cannot be found by searching the individual’s name in a standard search query.
b) Identifier Maskin: For civil or acquitted criminal cases where privacy might be breached, the judgment as available publicly through digital means is modified by substituting names with initials, such as X v. State. It is significant that the complete text without any modification is retained by the court in physical and digital form.
VIII. Suggestion
Even though the judicial framework of 2026 is a necessity, it is not feasible to rely on ongoing writ petitions to resolve the constitutional dilemma in question. The below reforms are recommended to create a systematic mechanism to address these rights:
1. Alignment of statute with the DPDPA, 2023
The Digital Personal Data Protection Act of 2023 in India does not provide a Right to Be Forgotten in regards to judicial records in the public domain, resulting in a lacuna in the law. (MeitY) should update the Intermediary Guidelines of the Information Technology Act to reflect the High Court guidelines of 2026. An administrative, out-of-court mechanism will be developed, which would allow clear-cut cases, such as divorces or acquittals, to de-index directly from the intermediaries via notice-and-takedown.
2. Technical automation in court registries
The court IT systems must adhere to the “Privacy by Design” approach. In the case of registration of the proceeding in those categories where personal information might be revealed, such as family courts or cases of domestic violence, the “e-court” IT system must automatically generate a publicly available version.
3. Implementation of Tiered Access Systems
To address the concerns on both sides of the constitutional debate, legal databases should adopt a tiered access system:
| Access Tier | User Group | Visibility Level | Search Methodology |
| Tier 1: Public Domain | General Public, Employers, Casual Searchers. | Masked Identifier and De-Indexed from Names. | Key words, Law Citation, General Legals Principles. |
| Tier 2: Verified Legal Domain | Advocates, Judges, Legal Researchers, Journalist. | Full Unredacted historical Judgements. | Secure Login, Verified Bar Council ID/ Credentials. |
IX. Conclusion
The post-2025 regime is undoubtedly a major step towards striking a balance between the RTBF and the constitutional principles of Freedom of Speech and Open Justice. While not regarding these two rights as absolutes in conflict, India’s courts have taken a proportionate approach whereby they seek to uphold the individual’s dignity through a system that protects the openness of the system of dispensation of justice. Through the preference of measures such as de-indexing and masking, the courts have managed to ensure that cases can still be accessed without stigmatizing individuals.
This contemporary legislation recognizes the necessity of Open Justice to be transparent in terms of legal interpretation and the use of state power. It does not necessitate continued public degradation of people based on what they have done in the past. The restrictions that it imposes allow for contemporary legal practices to guarantee that in an era of technology when the internet is designed to remember, the law provides for a very important human need, which is rehabilitation, preservation of dignity, and moving forward from past legal issues.
Judicial intervention alone will not afford a full solution to these issues; rather, a complete statutory framework, bolstered by technological innovations and concrete administrative structures, will more carefully assure consistent implementation of these principles. Digital technology is changing how people access the law and legal information. As a result, the law must adapt to protect the rights of the public to know and the rights of the individual to enjoy dignity and rehabilitation, and to provide a meaningful chance for the individual to progress. Accordingly, a new legal regime that encompasses an emergent legal paradigm will reflect a contemporary constitutional vision of assuring transparency without sacrificing human dignity while in the digital age.
X. References
1.K.S. Puttaswamy v. Union of India, (2017) 10 S.C.C. 1 (India).
2.The Digital Personal Data Protection Act, No. 22 of 2023, India Code (2023).
3.Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, G.S.R. 139(E)
4.Orla Lynskey, ‘Deconstructing Data Protection: The “Added-Value” of a Right to Data Protection in the EU Legal Order’ (2014) 63(3) International & Comparative Law Quarterly 569.
5.Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González, Case C-131/12, ECLI:EU:C:2014:317 (Ct. Just. Eur. Union May 13, 2014).
6.R. Rajagopal v. State of T.N., (1994) 6 SCC 632.
7.Regulation (EU) 2016/679, art. 17, 2016 O.J. (L 119) 1.
8.K.S. Puttaswamy v. Union of India, (2017) 10 S.C.C. 1 (India).
9.Laksh Vir Singh Yadav v. Union of India, 2026 DHC 4891 (Del. H.C. May 29, 2026).
10. The Constitution of India art. 21; K.S. Puttaswamy v. Union of India, (2017) 10 S.C.C. 1 (India).
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[1] K.S. Puttaswamy v. Union of India, (2017) 10 S.C.C. 1 (India).
[2] The Digital Personal Data Protection Act, No. 22 of 2023, India Code (2023).
[3] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, G.S.R. 139(E)
[4] Orla Lynskey, ‘Deconstructing Data Protection: The “Added-Value” of a Right to Data Protection in the EU Legal Order’ (2014) 63(3) International & Comparative Law Quarterly 569.
[5] Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González, Case C-131/12, ECLI:EU:C:2014:317 (Ct. Just. Eur. Union May 13, 2014).
[6] R. Rajagopal v. State of T.N., (1994) 6 SCC 632.
[7] Regulation (EU) 2016/679, art. 17, 2016 O.J. (L 119) 1.
[8] K.S. Puttaswamy v. Union of India, (2017) 10 S.C.C. 1 (India).
[9] Laksh Vir Singh Yadav v. Union of India, 2026 DHC 4891 (Del. H.C. May 29, 2026).
[10] The Constitution of India art. 21; K.S. Puttaswamy v. Union of India, (2017) 10 S.C.C. 1 (India).