Balancing the Right to be Forgotten and Freedom of Speech under the Constitution of India: A Legal Dilemma

Ms. Ekta Chandrakar, Assistant Professor of Law
Kalinga University, Naya Raipur
Email Id: ekta.chandrakar@kalingauniversity.ac.in
The concept of the Right to be Forgotten, which is gaining popularity worldwide, poses a special issue when considering India’s constitutional structure. Article 19(1)(a) of the Indian Constitution provides freedom of speech and expression. However, Article 21 of the Constitution recognizes the right to privacy as a basic right, as established by the Puttaswamy case. As a kind of privacy protection, the right to be forgotten gives people the ability to ask for their personal information to be taken down from the public domain if it is no longer relevant or is damaging their reputation. In light of the public’s right to information access, journalistic independence, and openness, this right may, nevertheless, collide with the freedom of speech. This article explores the legal dilemma of balancing right to be forgotten with freedom of speech in India, constitutional principles, and the implications of this evolving right.
Right to be Forgotten in India: Legal Framework
Although not expressly stated in Indian statutes, the right to be forgotten has become a topic of discussion in the legal community, especially when it comes to court interpretations of privacy rights. The Supreme Court of India upheld the right to privacy as a basic right in the Justice K.S. Puttaswamy (Retd.) v. Union of India decision, which paved the way for conversations about the right to be forgotten. There is no comprehensive data protection law that codifies the right to be forgotten in the Indian legal system. Nonetheless, measures for the right to be forgotten are proposed in the Personal Data Protection Bill, 2019 (currently known as the Data Protection Bill, 2022). Section 20 of the bill establishes the right to limit or stop the ongoing sharing of personal information when the individual withdraws consent or the purpose for which it was obtained has been satisfied. This right, however, is contingent upon the adjudicating authority’s determination based on the information’s relevancy, the public interest, and the freedom of speech.
Freedom of Speech and Expression Under Indian Constitution
Every Indian citizen has the right to freedom of speech and expression under Article 19(1)(a) of the Indian Constitution. These rights serve as the cornerstone of India’s democratic system, guaranteeing that people and the media can freely express their thoughts, ideas, and criticism without worrying about censorship. Article 19(2), however, states that the right is not unrestricted and is subject to reasonable limitations, such as those pertaining to public order, defamation, and national security.
Freedom of expression is essential to the public’s right to information access in the context of the right to be forgotten. In situations involving journalism, where deleting specific material could conceal investigative reports and public records, it becomes very pertinent. Determining the point at which personal privacy trumps the public’s right to know is thus central to the conflict between the right to be forgotten and the freedom of speech.
The Legal Tension: Right to be forgotten vs. Freedom of Speech
The legal conflict between right to be forgotten and freedom of speech in India arises from the following key points:
Privacy and Dignity
Individuals seeking right to be forgotten often base their claims on the need to safeguard their privacy and dignity, especially when the information is outdated, irrelevant, or harmful. This is particularly relevant in cases involving personal controversies, criminal acquittals, or past actions that no longer serve public interest but continue to affect the individual’s reputation.
Public’s Right to Know:
Freedom of speech, particularly the right to access information, is a collective right that promotes transparency, accountability, and democratic functioning. When right to be forgotten is invoked to remove online content, it could impede the public’s ability to scrutinize past events, hold individuals accountable, or understand societal issues.
Journalistic Freedom and Historical Records:
The press often faces challenges in maintaining public archives when individuals invoke right to be forgotten. Journalists argue that right to be forgotten could lead to a “whitewashing” of public records, allowing individuals to erase unfavorable information that may be in the public interest. For instance, removing news reports of past criminal activity, political controversies, or corporate scandals could dilute accountability and hinder informed decision-making.
Balancing the Two Rights: Judicial and Legislative Considerations

Indian courts have typically taken a case-by-case stance when weighing the freedom of speech against the right to be forgotten. A number of variables are taken into account, including the information’s applicability, the passage of time, the level of public interest, and the nature of the person’s position in society (e.g., public personalities). While preserving an individual’s privacy is vital, courts recognize that this protection cannot unnecessarily restrict the public’s right to know. Most right to be forgotten cases are decided by courts emphasizing the relevancy and public interest test. Public domain information may continue to exist if it serves a substantial public interest, such as criminal histories, political scandals, or business wrongdoing. In the event that the material is judged to be unimportant, out-of-date, or harmful with no public benefit, courts may decide to approve petitions to be forgotten.
When the Data Protection Bill, 2022 is passed into law, it will provide more precise instructions on how the right to be forgotten should be used. It suggests a legislative framework that balances the rights to privacy and free speech in deciding when personal information can be deleted. But how the adjudicating authorities interpret the law will determine how effective it is, especially when it comes to instances involving media content and public data. The legal framework needs to make sure that historical records and journalistic archives are not violated by the right to be forgotten. Clear guidelines should be provided for exemptions related to journalism, academia, or history to avoid the right to be forgotten from being used as a means of obstructing important public documents.
Challenges and Implications

In India, the right to be forgotten is still in its infancy, and its application is made ambiguous by the absence of established legal precedents. The cautious stance taken by the judiciary highlights the necessity for all-encompassing regulations that strike a balance between public interests and individual privacy. There’s a chance that influential people or businesses would abuse the freedom to forget in order to suppress negative information, which would impede openness. The difficulty is in making sure the right to be forgotten is implemented in a way that preserves individual privacy while upholding democratic ideals like accountability and free expression. National boundaries no longer apply to content published online in the international digital landscape. The efficacy of the right to be forgotten in a cross-border setting is called into doubt since, even in the event that Indian courts allow requests to be forgotten, the same material might still be available on foreign platforms.
Conclusion
Under the Indian Constitution, striking a balance between the right to be forgotten and the right to free speech creates a difficult legal conundrum. The public’s right to knowledge, transparency, and journalistic independence must be balanced against the fundamental rights of privacy and dignity. Legislators and courts need to strike a careful balance so that no right is unnecessarily restricted. The right to be forgotten law in India is still developing, and the next Data Protection Bill will probably provide further details on how this equilibrium should be struck. Until then, courts must continue to use a case-by-case judicial approach, taking into account the public interest, the significance of the evidence, and the larger consequences for democracy. In the end, striking the correct balance necessitates a strategy that protects personal privacy without eroding the fundamental tenets of free expression and transparency in a democratic society.