Two judgments, one by the Delhi High Court and the other by the Supreme Court, illuminate different aspects of the right to privacy. In India, the general attitude to privacy is often simplistic or superficial, perhaps because earlier it found little accommodation within traditional social and familial structures. The 2017 Supreme Court judgment on privacy as a fundamental right integral to the right to life and liberty enshrined in Article 21 was of overwhelming importance in impelling changes in thinking. But an understanding of the nuances and the depth of the right still remains inadequate. On May 29 this year, the Delhi High Court ruled that the right to be forgotten was part of the right to privacy. This would allow the names of persons who have been acquitted, or had their cases quashed or dismissed, or parties whose disputes had been settled to be digitally protected in order that their dignity is preserved and that the harm to their reputations is not perpetual.

The high court laid out a detailed framework of the way the principle would work: easy searchability of names should be changed on private platforms and personal identifiers in settled cases masked in judicial records. The substance of the judgments would remain. These two methods, de-indexing and masking, had exceptions. They would not be permitted in the cases of offences against women and children and the breach of public trust by public servants. The framework turns on the principle of balance, especially in retaining the substance of judgments for reference and in detailing the exceptions. That was also the basis of the Supreme Court’s ruling in which the highest court professedly balanced a man’s right to privacy against another’s search for identity. The Supreme Court dismissed the man’s appeal in which he refused a DNA test to preserve his privacy while a young man wished to know if the former were his biological father. The court directed a DNA test. The issue was a matter of competing rights where closure to a lifelong search for identity overrode a man’s right to privacy.

In the light of these two judgments, the right to privacy can be seen as a matter of balance, the delicate weighing of issues and a deeper understanding than is accorded to it by society. It is not just a matter of protecting the names of the survivors of sexual assault, although that is, undoubtedly, an absolute necessity. What is alarming is the institutional violation or dismissal of the right to privacy as is often exemplified in the kinds of information demanded on, for example, application forms for welfare schemes. This is particularly confusing for the people. The rulings of
the Delhi High Court and the Supreme Court look at all sides of the right
to privacy and place it in the context of each case. It is a deeply sensitive issue that cannot be treated as if one size fits all.