Hats off to the Kerala Judgement on Right to Forget-4: Need for Transparency in Judiciary

[This is a continuation of our earlier article on the Kerala Judgement on Right to Forget]

The Kerala Judgement on Right to Forget had three conclusions namely

    1. A claim for the protection of personal information based on the right to privacy cannot co-exist in an Open Court justice system.
    2. The right to be forgotten cannot be claimed in current proceedings or in a proceedings of recent origin.
    3. In family and matrimonial cases, arising from the Family Court jurisdiction or otherwise and also in other cases where the law does not recognise the Open Court system, the Registry of the Court shall not publish personal information of the parties or shall not allow any form of publication containing the identity of the parties on the website or on any other information system maintained by the Court if the parties to such litigation so insist.

For arriving at the above conclusions the Court analysed the definition of Privacy and the concept of Right to Forget as distinguished from Right to Anonymity which we have discussed in the previous article.

The Court then went on to reflect on how the Indian Court system has evolved from the days of the East India Company to today to highlight the principle of “Open Court System”. In particular the Court has considered the “Evolving Accountability and Transparency in Judicial function in the era of Digital space” and the need for independence of judiciary to be asserted with Courts being projected as democratic institutions.

The Court also underscored that since “ignorance” of law is not considered a defence in law, there is a greater need for Courts to be open about its functions and pointed out the live streaming practice that is being used in India now.

The Court significantly also alluded to the “Open Data” and said “The court cannot claim a monopoly over data available with the Judiciary…Data analytics can offer solutions to increase accountability and drive social good, welfare policy formulations etc. Withholding data would be detrimental to the public interest….the larger public interest compels the judiciary to share data with the public, stakeholders, researchers, government etc.”

The Court therefore felt that “In the larger interest, the data collected must be shared to benefit governance as well. Therefore, the Court cannot ignore the larger legal ecosystem in which administration of justice operates while deciding a matter of this nature.” and looked at the Right to Forget to be balanced with the need for judicial transparency.

In the context of redaction of litigant’s identity in Court judgement, this principle of “Open Court” is an important basic doctrine that has been highlighted by this judgement.

…to be continued


All articles in the series:

Hats off to the Kerala Judgement on Right to Forget-5: Evolution of the Right to be forgotten
Hats off to the Kerala Judgement on Right to Forget-4: Need for Transparency in Judiciary
Hats off to the Kerala Judgement on Right to Forget-3: Right to Forget is not Right to Anonymity..
Hats off to the Kerala Judgement on Right to Forget..2: Ratio Decidendi in Puttaswamy Judgement
Hats off to Kerala High Court for it’s treatise on Right to Forget

About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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