When The Algorithm Remembers What The Court Has Forgotten

**Amitabh Kumar Saxena and Vibha Patel

Abstract

This article examines the Right to be Forgotten in Indian Constitutional Law, focusing on the conflict between the right to privacy (Article 21) and freedom of expression (Article 19). It explores how algorithmic stigma harms individuals who have been cleared of crimes and evaluates the judicial shift from High Court de-indexing orders to the Supreme Court’s more cautious approach toward open justice..

Introduction

In today’s digital world, a single Google search can profoundly affect a person’s life. While print media once limited the spread of criminal allegations, search engines now ensure old information remains permanently accessible. This creates a constitutional challenge; when courts later dismiss serious charges as false or malicious, the original accusations often continue to dominate online searches undermining the acquitted person’s reputation, employment, and dignity. 

The persistent algorithmic amplification of dismissed allegations causes lasting reputational harm. It affects chances of employment, social relationships, and the right to live with dignity under Article 21. At its core, this raises a classic clash between the fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution which includes the press’s role in informing the public, versus the right to life and personal liberty under Article 21, which the Supreme Court has interpreted to include dignity, reputation, and informational privacy. The real question is no longer whether these rights exist, it is how courts should balance them when old allegations, once newsworthy, become stale, irrelevant, and disproportionately harmful.

The Constitutional Foundations: Privacy, Reputation, And Expressive Freedom

The foundation for this debate lies in the landmark nine-judge bench decision in K.S. Puttaswamy v. Union of India (2017), which recognised the right to privacy as a fundamental right under Article 21. In his concurring opinion, Justice Sanjay Kishan Kaul examined the Right to be Forgotten (RTBF), as an aspect of informational privacy. He rejected a broad “right to forget the past” as impractical, but described the right to be forgotten as the ability to erase or limit personal information that is no longer relevant, necessary, true, or serving any legitimate purpose. Importantly, Justice Kaul noted that this right to be forgotten is limited, and must be balanced against competing interests, particularly freedom of expression. 

This builds on the earlier ruling in Subramanian Swamy v. Union of India (2016), where the Supreme Court held that reputation forms an integral part of the right to life and dignity under Article 21. The Court upheld the validity of the criminal defamation laws under the IPC, observing that the State has a duty to protect citizens from speech that harms another’s moral character, professional standing, or creditworthiness in the eyes of reasonable members of society. Free speech does not include the right to defame; it protects truthful speech made for the public good and fair comment on matters of genuine public interest.

Algorithmic Stigma And The Insufficiency Of Journalistic Updates  

To understand why outdated online news causes so much harm, we need to look at how digital search results are delivered. These platform prioritise engagement, metadata, URL structure, and original headlines. When journalists face demands to remove or correct old articles, they often argue that adding a clarification or update at the bottom is sufficient. This approach is inadequate both legally and practically. 

In IE Online Media Services Private Limited v. Nitin Bhatnagar (IE Online Media Case) (2025) the Delhi High Court rejected this argument. The Court found the journalists’ argument to be without merit, stating, “The mere addition of a brief clarification at the bottom of the offending article does not eliminate the dominant narrative or the continued impact of the original publication”, because the original accusatory headline and URL remain, a simple name search still surfaces the old allegations rather than the discharge. This technological process creates “algorithmic stigma”, whereby an individual remains associated with a crime even after judiciary has found no prima facie case, such amplification effectively imposes ongoing extra-judicial punishment and hinders rehabilitation, even if minor unrelated charges linger. Accordingly, the Court held that the continued online circulation of arrest reports after discharge violates the right to dignity, and therefore upheld interim de-indexing directions against the media house.

Judicial Trends: From Acquittal To De-Indexing

High Courts have increasingly translated abstract privacy rights into concrete relief in criminal matters. An important precedent is the Delhi High Court’s interim order in Jorawar Singh Mundy v. Union of India (2021). The petitioner, who had been acquitted of serious offences, sought removal of the judgment from prominent online search results because it harmed his social and professional life. Justice Pratibha M. Singh directed Google and legal databases to de-index the judgment, recognising that the “right to be left alone” justified interim relief to prevent irreparable harm. The order did not touch court records themselves, which remain sacrosanct but limited unnecessary online visibility where no continuing public interest existed.

The Kerala High Court in Dejo Kappan v. Deccan Herald (2024) provided further guidance. While initial reporting on arrests and investigations serves the public interest, continued or distorted circulation after acquittal or discharge can cause unwarranted harm to dignity. The Court highlighted the key difference between print and digital media: digital content can be preserved and resurfaced indefinitely. Once charges are dropped, the repeated resurfacing of old headlines can disproportionately damage reputation and social standing. In such cases, the balance often tilts in favour of the individual, as reputational harm cannot easily be compensated by money.

Open Justice And The Boundaries Of Prior Restraint

While several High Courts have issued targeted de-indexing orders to advance the Right to be Forgotten, the Supreme Court has adopted a more cautious approach, stressing the principles of open justice and press freedom.

This caution was evident in the IE Online Media case. In February 2026, a Division Bench comprising Justices B.V. Nagarathna and Ujjal Bhuyan stayed the Delhi High Court’s de-indexing directive. The media house argued that privacy cannot be turned into a “right to erase history.” The Supreme Court expressed concern that widespread court-ordered removal of news reports could undermine transparency and democratic accountability. It clarified that the stay should not be treated as a precedent.

A similar concern appeared in Wikimedia Foundation Inc. v. ANI Media Private Limited). The Supreme Court (Justices Abhay S. Oka and Ujjal Bhuyan) set aside a High Court order directing deletion of a Wikipedia page concerning an ongoing defamation suit. The Court reaffirmed that courts are “open institutions” and that even sub-judice matters can be subject to public and media scrutiny. Any restriction on speech must satisfy the twin test of necessity and proportionality and demonstrate a genuine risk of prejudice to the administration of justice.

These Supreme Court observations highlight the central tension: ordering deletion or broad de-indexing of original news reports, especially when serious charges are dropped mid-trial risks amounting to prior restraint and sanitising public records, which could undermine the open court principle.

Striking The Balance: Public Interest, Proportionality, And The Fading Shadow

Courts have applied a proportionality test with three key questions: (i) Is there any continuing public interest in the material’s visibility? (ii) Does the harm to reputation outweigh that interest? (iii) Is de-indexing from search results (rather than deleting the original article) the least restrictive and necessary remedy?

In cases where charges are struck down as malicious or baseless, the balance increasingly favours relief. The original reporting’s truth defence weakens once a court has discharged the accused. The public’s right to know about the initiation of proceedings does not automatically justify perpetual online memorialisation. As noted in Dejo Kappan, continued circulation may operate as a source of unwarranted reputational harm. Justice Kaul’s framework in Puttaswamy supports de-indexing (or limited erasure) where the data no longer serves a legitimate purpose. Monetary damages cannot undo the damage caused by a harmful Google search result.

Critics rightly warn against judicial overreach. Press freedom remains essential to democracy. Investigative journalism, whistle-blowing, and proper archival records deserve strong protection. However, Article 19(1)(a) has never been absolute. Reasonable restrictions under Article 19(2) include defamation, and courts have long recognised that reputation is vital to ordered liberty. The fine line lies in intent and context: good-faith reporting on genuine public concerns must be protected, while reckless or outdated amplification aimed mainly at clicks should not.

Lingering Uncertainties And The Road Ahead

The internet has fundamentally changed the problem. In the pre-digital era, a defamatory or outdated news article had a natural life cycle. This leads to perpetual stigmatisation that is difficult to measure but clearly damages the accused’s moral character, professional suitability, and social standing. Even after judicial exoneration, a “persistent digital version” of the original accusations remains online. This undermines the constitutional values of rehabilitation and dignity. Under Section 12 of the Digital Personal Data Protection Act, 2023, data subjects can seek correction or deletion once the original purpose ceases. However, broad exemptions for journalistic expression and public order largely leave media archives untouched. In the absence of clear statutory procedures, constitutional courts must continue to strike the balance through Article 21. 

The Supreme Court’s stay in the IE Online matter reflects healthy caution. It signals that any RTBF jurisprudence must develop incrementally, with due regard to open justice and the practical difficulties of policing the internet. At the same time, the stay does not negate the persuasive force of High Court reasoning grounded in Puttaswamy. Until Parliament enacts a comprehensive data-protection regime that expressly codifies RTBF, something the Digital Personal Data Protection Act, 2023, has only begun to sketch, courts will continue to fill the void through Article 21.

Conclusion

The tension between reputation and free speech is not new, but the internet has made it far more acute. When criminal charges collapse under judicial scrutiny yet digital headlines refuse to fade, the Constitution requires more than vague calls for balance. Courts must ask a direct question: Does continued visibility serve any legitimate public interest, or does it simply punish the innocent with perpetual stigma?

In most such cases, the scales tip toward targeted de-indexing proportionate, respectful of press freedom, and protective of human dignity. Indian jurisprudence is still developing in this area. The core principles are clear, but their application continues to evolve. What remains beyond doubt is this: a citizen exonerated by the court should not continue to be condemned by the search engine.

In the digital age, the right to be forgotten is not about erasing history. It is about ensuring that history does not unfairly repeat itself and destroy one person’s future. Courts must ensure that justice is not only done, but that its effects can eventually fade, allowing the individual to rebuild a life with dignity. Until Parliament provides clearer statutory guidance, Article 21 will require judges to protect dignity without rewriting the past.

**Amitabh Kumar Saxena is a fourth-year B.A., LL.B. (Hons.) student at the National Law Institute University (NLIU), Bhopal. He has interned with leading law firms, including Shardul Amarchand Mangaldas, Saraf and Partners, and Luthra and Luthra Law Offices, where he gained experience in corporate law, arbitration, and commercial litigation. He has published on contemporary legal issues and has actively participated in moot court competitions and other academic engagements.

**Vibha Patel is a third-year B.Com., LL.B. (Hons.) student at Tamil Nadu National Law University (TNNLU), Tiruchirappalli. She has cleared Group I of the Company Secretary (CS) Executive Programme examination. She has interned with reputed law firms and chambers, including Vaish Associates Advocates, Karanjawala & Co., and the Chambers of Mahesh Jethmalani, gaining experience in corporate law, arbitration, and commercial litigation.

**Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.