Karthick
Theodore v The Registrar General, Madras High Court
|
Name |
Karthick Theodore v The Registrar General |
|
Citation |
W.P.(MD) No.12015
of 2021 |
|
Date of Judgement |
03.08.2021 |
|
Appellant |
Karthick Theodre |
|
Respondent |
TheRegistrar General,
Madras High Court,Chennai. |
|
Bench |
Justice N Anand
Venkatesh |
|
Statues/Constitutional Provisions |
Constitution of India, Code of Criminal
Procedure, Juvenile Justice Act 2015. |
|
Relevant Sections |
Article 21 and Article 226 of the Indian
Constitution, Section 232, 248 and 255 of CrPC |
Abstract
Recently,
the Madras High Court was asked to use its writ authority to order that the
identity of an accused person whose accusations against him were dismissed in
the appellate stage be redacted from the initial judgement of conviction. The
petitioner had pushed for Article 21 of the Constitution's "right to
privacy" to be expanded to include his "right to be forgotten"
as a subset of that right. In its judgement titled "Karthick Theodore v.
Madras High Court and Ors," handed down by the honourable Mr. Justice N.
Anand Venkatesh on August 3, 2021, the Madras High Court declined to issue the
writ.
Introduction
This
legal issue is not the first time it has come up. It has been brought up in a
number of Indian high courts, most recently the Delhi High Court. In some
regions of the world, such as Europe, where the Right to Erasure is recognised
under the GDRP, the issue has been resolved. Relevantly, with the sophisticated
search engines currently in vogue, anyone can easily get information on any
individual through the electronic media, seriously harming that person's
reputation and right to privacy. The boundaries of this right in India are
still up for debate, with various high courts coming to various conclusions on
it.
The
Right to Be Forgotten is a voyage of inconsistencies due to the lack of data
protection legislation in India, which is still being discussed by the
Legislature. Relevantly, the main issue at hand is whether or not this right to
privacy can be exercised in the context of decisions and orders made by Indian
courts.
Facts
of the Case
The
petitioner faced criminal proceedings foran offence under Sections 417 and 376
of I.P.C., and hewas convicted and sentenced by the Trial Court by
Judgment dated
29.09.2011. The petitioner took thisJudgment on appeal before this Court and
this Courtafter dealing with the merits of the case and exhaustivelydealing
with the law governing the case, acquitted thepetitioner from all charges in a
Judgment made in Crl.A.(MD).No.321 of 2011, dated 30.04.2014. By virtue ofthis
Judgment, the petitioner has been acquitted from allcharges and the petitioner
can no more be identified asan accused in the eye of law.
Even
though the petitioner had been acquittedfrom all the charges, his name gets
reflected in theJudgment rendered by this Court and unfortunately,
whoever types the
name of the petitioner in Googlesearch is able to access the Judgment of this
Court. Inthe entire Judgment, the petitioner is identified as an accused even
though he has been ultimately acquittedfrom all charges. According to the
petitioner, this causesa serious impact on the reputation of the petitioner in
theeyes of the Society and therefore, the petitioner wants his name to be
redacted from the Judgment of this Court.
Registry is directed to post this case for finalarguments on
28.07.2021 at 2.15 P.M.. Registry isfurther directed to publish this order in
the AdvocateAssociations and Bar Associations both in the PrincipalBench and
Madurai Bench. The members of the Bar arerequested to assist this Court in this
issue.
The above order was circulated widely to all the Advocate
Associations
and Bar Associations and many advocates positively responded to the call made
by this Court resulting in a five hour “marathon”hearing on 28.07.2021. Submissions
were made from various perspectives and the effective submissions that emanated
from a vibrant bar made it an enriching experience. This Court with all
humility must acknowledge the factthat if not for the assistance of the members
of the Bar, this Court could not have gained insight into the various facets of
this issue to come to a fair conclusion.
Issue
Raised before the court
1. Whether anaccused person who on being
charged for committing an offence and havingundergone trial and ultimately been
acquitted of all charges by a Court ofcompetent jurisdiction, has the right to
seek for destruction or erasure redaction of their personal information from
the public domain.
2.
If
such a right is traceable toArticle 21 of the Constitution of India (“the
Constitution”) as a right to privacywhich is an intrinsic part of the right to
life and personal liberty, and hence anenforceable right as held by the Hon'ble
Supreme Court in K.S.Puttaswamy andAnother v. Union of
India Others[1]
3.
Whether
inlight of the same, this Court can set out guidelines in exercise of its
jurisdiction under article 226 of the Indian Constitution?
Arguments
from the Appellant side
If
the principles of this judgement[2]
are applied to the situation at hand, it stands to reason that even someone who
was accused of committing a crime and afterwards cleared of all charges will be
entitled to have his name redacted from the court's decision in order to
protect his right to privacy.
A new Rightcalled as Right to be Forgotten is sought to be
includedin the list of Rights that are already available underArticle 21 of the
Constitution of India.
Under the Code of CriminalProcedure, 1973 (“the Code”),the
Criminal Court after taking the evidence,examining the accused, hearing the
prosecution and the defence, considers thatthere is no evidence that the
accused committed the offence and finds theaccused not guilty, records an order
of acquittal. The language used underSection 232, 248 and 255 of the Code, was
relied upon to add strength to thisargument. To explain the phrase “The Judge
shall record an order of acquittal”,the judgment of the Hon'ble Supreme Court
in Dilip Kumar Sharma AndOthers v. State of Madhya Pradesh[3]
It
was further argued that an acquittal verdict grants the accused the right to
have his name automatically expunged from all records, particularly those that
are in the public domain.
Since
the orders and judgments are easily available on the publicdomain and can be conveniently
accessed by the touch of a button, it is causinga serious impact on the
reputation and privacy of a personas even after being exonerated in a criminal
trial, a person's name appears in the order or judgement as an accused, an
identity they want the world at large to forget.
If
there is a genuine and significant risk that revelation would jeopardise a fair
trial, it may also be important to take note of the High Court's authority
under Article 226 to issue appropriate instructions for non-disclosure
throughout the course of the trial. The High Court may issue "postponement
orders" in these circumstances, but only temporarily during the trial[4].
The crux of the petitioner’s case is that in light of the
continued reflection of his
name as an accused in the judgment of this Court in Cr.A (MD) 321 of 2011, The
right to be forgotten, a component of Article 21 of the Constitution, was
violated.
Arguments
from the Respondents side
The moment Judge records an order of acquittal, the identity of a
person as an accused is completely wiped out. This effect takes place due to
the operation of law. However, a Court is required to figuratively strike off
the name of the person from the order or judgement that documented the person's
acquittal from the criminal proceedings when engaging in the redaction process.
In other words, wherever the name is mentioned in the order or judgement, it is
tried to completely erase an identity that has already been erased by the
operation of law. This Court is also interested in learning at what level of
jurisdiction the redaction procedure should be carried out. When should it be
done in cases that have already been resolved? Is it at the trial court stage,
the appeal stage, or the revisional stage?
The
moment a complaint is made, a FIR is filed, an accused person is placed in
remand, and when they go to trial, the damage to reputation or dignity begins.
There are publications at every level, and while redaction is sought, none of
these publications will be impacted as it is focusing on the end outcome that
is acquittal.
Only
an order or judgement of acquittal can restore the honour that has already been
damaged by the availability of numerous articles on search engines.
Viscount Haldane pointed out that the general principle is that
Courts must administer justice in public[5].
There were, however, some instances that called for a departure from this rule,
such as marriage disputes, cases involving minors, etc. The justification for
the exceptions was based on the more basic tenet that the primary goal of
courts of justice must be to uphold justice between parties. Therefore, the
ideal of open justice must give way to the even more important obligation to
execute justice in situations involving kids and marriage conflicts, when
publicity may harm the subject matter of the lis. After all, publicity is just
a tool to achieve a goal.
In Swapnil Tripathi v. the Supreme Court ofIndia[6], D.Y
Chandrachud, Jidentified the following:
“Public confidence in the judiciary and in the process of judicial
decision making is crucial for preserving the rule of law and to maintain
the stability of the social fabric. Peoples' access to the court signifies
that the public is willing to have disputes resolved in court and to obey
and accept judicial orders. Open courts effectively foster public
confidence by allowing litigants and members of the public to view
courtroom proceedings and ensure that the Judges apply the law in a fair
and impartial manner.”
It is a settled positionof law that a judicial order of a Court
cannot violate fundamental rights underPart III of the Constitution[7].
The petitioner is requesting that his name be removed from an
order made by a bench of this Court that was part of a regular criminal appeal.In
effect, the prayer isthat a writ of mandamus must be issued against a judgment
and order passed bythis Court in exercise of its criminal appellate
jurisdiction to alter the description of the petitioner in the cause title and
the body of the judgment. In Naresh Sridhar Mirajkar v State of Maharashtra[8], it
was definitively determined that a writ does not lie to an order of a Court
placed on an equal footing in the field of jurisdiction.
The High Court is a Court of Record under Article 215 of the
Constitution. As a superior Court of Record, it is entitled to preserve theoriginal
record in perpetuity. Thus, the sanctity of an original record cannot be altered
or otherwise dealt with except in a manner prescribed by law. No judgment of
any Court has been cited to show that the prerogative power of this court under
Article 226 extends to direct alteration of its own records.
Related
Provisions
1.
The Code of
CriminalProcedure, 1973
Section
232: Acquittal. If, after taking the evidence for the prosecution, examining
the accused and hearing the prosecution and the defence on the point, theJudge
considers that there is no evidence that the accused committed the offence, the
Judge shall record an order of acquittal.
Section
248: Acquittal or conviction.
1. If, in any case under this Chapter in
which a charge has been framed, the Magistrate finds the accused not guilty, he
shall record an order of acquittal.
2. Where, in any case under this Chapter,
the Magistrate finds the accused guilty, but does not proceed in accordance
with the provisionsof section 325 or section 360, he shall, after hearing the
accused on the question of sentence, pass sentence upon him according to law.
3. Where, in any case under this Chapter,
a previous conviction is charged under the provisions of sub- section (7) of
section 211 and the accused does not admit that he has been previously
convicted as alleged in the charge, the Magistrate may, after he has convicted
the said accused, take evidence in respect of the alleged previous conviction,
and shall record a finding thereon: Provided that no such charge shall be read
out by the Magistrate nor shall the accused be asked to plead thereto nor shall
the previous conviction be referred to by the prosecution or in any evidence
adduced by it, unless and until the accused has been convicted under sub-
section (2).
Section
255: Acquittal or conviction.
1. If the Magistrate, upon taking the
evidence referred to in section 254 and such further evidence, if any, as he
may, of his own motion, cause to be produced, finds the accused not guilty, he
shall record an order of acquittal.
2. Where the Magistrate does not proceed
in accordance with the provisions of section 325 or section 360, he shall, if
he finds the accused guilty, pass sentence upon him according to law.
3. A Magistrate may, under section 252 or
section 255, convict the accused of any offence triable under this Chapter,
which from the facts admitted or proved he appears to have committed, whatever
may be the nature of the complaint or summons, if the Magistrate is satisfied
that the accused would not be prejudiced thereby.
2.
Article
21 in The Constitution Of India 1949
Protection of life and personal
liberty: No person shall be deprived of his life or personal liberty except
according to procedure established by law
3.
The
JuvenileJustice [Care and Protection of Children] Act, 2015
Section 3(xiv) - Principle of fresh start: All pastrecords of
any child under the Juvenile Justice systemshould be erased except in special
circumstances.
2. 24. (1) Notwithstanding anything contained in anyother law for the time
being in force, a child who hascommitted an offence and has been dealt with
under theprovisions of this Act shall not suffer disqualification, ifany,
attached to a conviction of an offence under such law:
Provided that in case of a child who has completed or isabove
the age of sixteen years and is found to be in conflictwith law by the
Children’s Court under clause (i) of subsection (1) of section 19, the
provisions of sub-section (1)shall not apply. (2) The Board shall make an order
directing the Police, or by the Children’s court to itsown registry that the
relevant records of suchconviction shall be destroyed after the expiry of
theperiod of appeal or, as the case may be, a reasonable period as may be
prescribed.
Judgement
The
writ petition is dismissed because this Court is unwilling to award the remedy
requested in it in light of the aforementioned arguments. This Court must once
more thank the Bar for its aid in resolving this delicate and complicated
matter or it will be failing in its responsibility to draw the curtains. No
charges. Consequently, the related other petition is dismissed.
Conclusions
The
court's caution in ordering the petitioner to refrain from removing the
petitioner's name from the judgement is a noteworthy action taken to prevent
the opening of a floodgate of similar instances and represents a substantial
deviation from its own interim ruling. In order to broaden the scope of
acquittals, the courts used the comparison that whereas women and children in
India have protection for their reputations and privacy, acquittals generally
do not have the same level of protection.The public interest in having access
to the information that has become public domain despite the acquitted person's
right must be balanced with the protection provided under the "Right to be
Forgotten" principles. By comprehending the nature and seriousness of the
offence, the age and intent of the petitioner, and the principle of open
justice, the court would have to strike a balance between the right to be
forgotten exercised by the acquitted on the one hand and the interest of the
general public on the other.
[1](2017) 10 SCC 1
[2] KS Puttaswamyand Another
vs Union of India
[3](1976) 1 SCC
560
[4]Sahara India
Real Estate Corpn. Ltd. v. SEBI, (2012) 10
SCC 603
[5]Scott v Scott
[1913 A.C 417]
[6](2018 10 SCC
639)
[7]Rupa Ashok
Hurra v. Ashok Hurra, (2002) 4
SCC 388
[8](AIR 1967 SC
1)
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