Sanjeev Sirohi
Published on: 25 December 2022 at 18:22 IST
While upholding the right to publish judgments, the Kerala High Court in a most learned, laudable, logical, landmark and latest judgment titled Vysakh K.G. vs Union of India & Anr. And Other Connected Cases in W.P.(C).Nos. 26500/2020 and others and cited in 2022 ruled that reporting and publishing of judgments are part of freedom of speech and expression. It must be mentioned here that while dealing with petitions seeking enforcement of the ‘right to be forgotten’ against uploading of court orders or judgments on the internet, the Division Bench of Kerala High Court comprising of Hon’ble Mr Justice A Muhamed Mustaque and Hon’ble Ms Justice Shoba Annamma Eapen minced no words to hold that, “The Courtroom is open to all. The Court cannot gloss over the protection available to publishers of judgments under Article 19(1)(a) of our Constitution“.
Reporting and publishing judgments are part of freedom of speech and expression and that cannot be taken away lightly without the aid of law.” It must also be mentioned here that the Bench made it clear that the Courts can have no copyright claim over judgments since the same forms part of public records.
At the very outset, this notable judgment authored by Hon’ble Mr Justice A Muhamed Mustaque for a Division Bench of the Kerala High Court comprising of himself and Hon’ble Ms Justice Shoba Annamma Eapen sets the ball in motion by first and foremost to state briefly puts forth in para 1 that, “These cases present a question of seminal importance in judicial information policy followed by the Courts in India.
They have been placed before us on a reference order of the learned Single Judge, Justice Anil K. Narendran in W.P. (C).No.6687/2017, dated 15/3/2021, to determine the questions involved, finally, by an authoritative pronouncement.”
Due to paucity of space, I would mention here very briefly the brief facts of only one case here wherein it is laid down in para 3 that, “W.P. (C) No. 26500 of 2020: Criminal proceedings were initiated against the petitioner for an offence punishable under Section 354-D Indian Penal Code in C.C.No.344/2015 on the file of the Judicial First Class Magistrate Court, Chavakkad. Subsequently, in the Crl.M.C No.5477/2016 filed before this Court, the de facto complainant filed an affidavit stating that she does not wish to pursue the matter and consented to quash the entire proceedings.
“By judgment dated 7/9/2016, Crl.M.C No.5477/2016 was allowed and the proceedings in C.C.No.344/2015 were quashed,”.
“This judgment has been published by Indian Kanoon and indexed by Google. The petitioner submits that the right to be forgotten being recognized as a part of the right to privacy and the judgment being of no public importance, there is no justification for it being in the public domain.”
To put things in perspective, the Division Bench envisages in para 8 that, “The interplay of providing information about the parties and providing information on the contents of the cause in a Court of law requires a balancing exercise.
It is exactly that exercise that has to be considered by this Court in these writ petitions in the absence of any legislation. Anonymity though is different from privacy, it becomes a facet of privacy when the cause and content in a case are identified with the parties in the lis.
The privacy aspect of such information about the identity of the parties cannot be separated from the cause that is being considered by the Court in open transparent court proceedings. The sensitive and personal information of individual parties was exposed to the public when the Court started making judgments available through its web portals. Law reporters beaming court news online, have worldwide online viewers and followers.
The judgments became a gold mine of data for online publishers, to the satisfaction of lawyers, litigants, researchers etc. Such publishers and legal databases developed search tools using algorithms for easy identification of the judgments with reference to the name of parties, subject and text of the judgments. Search engines like Google help users find the information they are looking for, using keywords and phrases.
No one has any grievance against the open, transparent court proceedings and the conduct of cases in the open justice system. The problem for them is allowing their personal and private information to remain permanently in the digital public space, invading their right to privacy and right to forget the past. The task for us, therefore, is to decide not only on the privacy claimed in the present but also in the future.”
Needless to say, the Bench mentions in para 37 that, “Courtrooms by virtue of Section 153-B of CPC and Section 327 of Cr.P.C. are statutorily public spheres where people are allowed to view proceedings and form public opinion. The very idea of keeping Courtrooms open to the public is to safeguard the open Court principle which is a fundamental aspect of the democratic ecosystem.”
Most significantly, the Division Bench then lays down in para 58 very clearly that, “The Case Information System software is a giant move under the initiative of the e-committee to make the Indian Judiciary more transparent and more litigant friendly. The CIS versions are available for District Judiciary and High Courts exclusively.
This Case Information System software for the District Judiciary is created under the guidance of the e-committee, Supreme Court of India through the software team at the National Informatics Center (NIC), Pune.
The whole idea of CIS, in a nutshell, is that the litigant should be able to view the daily status of his case, the orders of the case, hearing dates of his case, the progress of the case on any particular date etc. online from any part of the world. [Source ecommittee Of Supreme Court Of India Website Viewed On 14/12/22] The Judgments are gold mines of data. In a few of the cases, the challenge is in regard to permitting the use of Court Information Systems by technology innovators in the legal domain like Indian Kanoon.
On typing a subject or name of the parties, one can easily search and find out the cases they are looking for on the Indian Kanoon website. Indian Kanoon obtains judgments from the Case Information System of Courts which are accessible and free of cost. The Courts shall have no copyright claim over judgments as the same forms part of public records.
Under the Copyright Act 1957, reproduction for judicial reporting, or reproduction or publication of judgments are not infringements of copyright. Indian Kanoon provides access to different statutes and case laws of various Courts and the Supreme Court of India, free of charge.
The reliefs sought against Indian Kanoon are to block the personal data of the petitioners and also to remove and erase the disclosure of the identity of some of the petitioners herein. Though there was resistance on the side of Indian Kanoon in regard to the maintainability of the writ petition seeking prayers against them, we are not considering the above at this juncture for the simple reason that substantial relief is sought against the publication of the judgment by the High Court on the websites and the portal, and allowing Indiankaoon and other publishers to obtain data from Case Information System.
Advocate Santhosh Mathew, learned counsel appearing for Indian Kanoon further submitted that the law does not prohibit the publication of public records and Indian Kanoon never published judgments with the personal details of the parties in cases where the anonymity of parties is protected. He also tried to distinguish between the right to be forgotten with the right of erasure. The judgments forming part of the Court records are public documents as referable under Section 74 of the Indian Evidence Act.
There cannot be any dispute in regard to publishing the contents of the judgment even if such judgments are ordered to be masked in regard to the details of the parties to protect their identity. We have already overruled the right to claim privacy in the public sphere in an Open Court system. The Courtroom is open to all.
The Court cannot gloss over the protection available to publishers of judgments under Article 19(1)(a) of our Constitution. Reporting and publishing judgments are part of freedom of speech and expression and that cannot be taken away lightly without the aid of law.”
We thus see that the Kerala High Court while declining the prayer dismisses the writ petitions filed as stated in para 65 and it is held in para 64 that, “In summation, we hold as follows:
i. We declare that a claim for the protection of personal information based on the right to privacy cannot co-exist in an Open Court justice system.
ii. We hold that right to be forgotten cannot be claimed in current proceedings or in a proceedings of recent origin. It is for the Legislature to fix grounds for the invocation of such a right. However, the Court, having regard to the facts and circumstances of the case and duration involved related to a crime or any other litigation, may permit a party to invoke the above rights to de-index and to remove the personal information of the party from search engines. The Court, in appropriate cases, is also entitled to invoke principles related to the right to erasure to allow a party to erase and delete personal data that is available online.
iii. We declare and hold that 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.
iv. We hold that the Registry of the High Court is bound to publish privacy notices on its website in both English and Vernacular languages.
In sum, we thus see that the Kerala High Court has made it explicitly clear that the reporting and publishing of judgments are part of freedom of speech and expression and so they cannot be taken away lightly without the aid of law.
The Court said that the identity of the judiciary based on public confidence is not ordinarily possible without there being free flow of information on judicial functioning.
Of course, it definitely merits no reiteration that all the courts must definitely pay heed to what the Division Bench of the Kerala High Court comprising of Hon’ble Mr Justice A Muhamed Mustaque and Hon’ble Ms Justice Shoba Annamma Eapen have laid down so very clearly, cogently and convincingly in this leading case! No denying it!
Sanjeev Sirohi, Advocate