They say that the first draft of history is written by journalists. This is mostly true, except perhaps in the case of legal history where the first draft is written in the records of the courts by its stenographers and judges. It is these records which capture the present and preserve it for posterity in public and private archives for historians of the future.

As the world moved into the digital age, the information technology revolution promised to make it easier than ever to store, index and organise records. The information revolution also converted much of the internet into an archive which was meticulously indexed by search engines for the common citizen to use for free. So much so that the first draft of history today depends upon the first page of search results displayed by Google’s algorithm.

All of this is at risk today because of a string of judgements tumbling out of the High Courts across India which have weaponised the fundamental right to privacy against journalism, databases and search engines. Two recent judgments on the right to be forgotten from the Delhi High Court and Bombay High Court present the dangers of this approach. The judgement of the Delhi High Court which decided a bunch of more than 30 cases together, invoked the “right to be forgotten” to allow many litigants acquitted or discharged in criminal proceedings and involved in matrimonial proceedings to scrub the internet of their past.

As a remedy, the court ordered private search engines and databases to “de-index” certain links to news reports and judgments on the websites of the courts. While this “de-indexing” exercise will not interfere with the content of the news report or judgment on the websites of their respective institution, it will impede the ability of citizens to search for the same information on search engines or databases.

The Bombay High Court has gone a step ahead and ordered the masking of the name of a litigant on its website after the court quashed a criminal case against him. Once the name is redacted on the website, the search engine will not display the case in response to a search conducted with the name of the litigant. On the consequences for journalists who publish the names of these litigants, the judgement is silent but the threat of litigation will likely pre-empt such publication.

The rich and the powerful are already lining up before the courts with petitions invoking this new “right to be forgotten” against search engines like Google and databases like Indian Kanoon, to scrub their past from our collective memory. The smarter ones will get the High Courts to scrub even the court’s own websites of any identifying details. The fallout is obvious. In the short term, journalists and other professionals who rely on search engines to conduct research for the purpose of journalism or due diligence will simply not be able to access any unflattering information about the rich and powerful unless they get convicted by India’s sclerotic courts.

The more troublesome outcome is that the custodians of this information, be it the media houses or the courts, will eventually decide to alter their information recording practices. For example, editors deluged with “right to be forgotten” litigation, may change the “house rules” for their journalists when it comes to reporting on the rich and powerful. Court registries may decide to anonymise litigant names and release their names only if they are convicted and not when they are acquitted, even if such an acquittal is due to a botched prosecution.

In the long term, this information once archived will be ridden with digital holes which will complicate the job of future historians. If nothing else, this will make it easier for history to be revised by the rich and powerful.

How did we get here? The rather dubious “right to be forgotten” was derived from the “right to privacy” by one of the nine judges who decided the Puttuswamy case almost a decade ago. The “right to be forgotten” was never at issue before the judges hearing this case but as often happens in India, judgement writing becomes a creative essay writing exercise without the restraints of judicial discipline expected of the Supreme Court. And so, one of the nine judges waxed eloquent about the “right to privacy” including the “right to be forgotten”.

On the other hand, a different judge on the same bench had concluded that the fundamental right to privacy applies only against the state and not, non-state actors (eg, search engines and the media). Against the latter, he concluded, a person can at most assert a common law right to privacy, which is far narrower than the fundamental right to privacy.

There are already pending appeals before the Supreme Court on the breadth of the “right to be forgotten” but its outcome will depend essentially on which bench of judges hears the final arguments in this case.

Over the last two decades as the Indian media became increasingly noisy, the court has also become more censorious. It once invented, out of thin air, a doctrine like “postponement of speech”. On another occasion it declared the right to reputation as a fundamental right. Hopefully, the appeals lands before a liberal bench who can discern the long-term consequences of enforcing the “right to be forgotten” in India on our collective memories and histories.

Prashant Reddy T writer is the co-author of Tareekh Pe Justice: Reforms for India’s District Courts (2025).

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