From Privacy to Erasure: Expanding the Horizons of Article 21 in the Digital Age

This essay examines how the constitutional right to privacy under Article 21 of the Constitution of India has, within less than a decade, expanded from a right to be shielded from state intrusion into an emerging right to erasure – the ability of an individual to disappear from the searchable memory of the internet. It traces this evolution from the nine-judge decision in Justice K.S. Puttaswamy v Union of India through a fragmented line of High Court decisions, into the Digital Personal Data Protection Act, 2023, and culminates in the Delhi High Court’s 2026 ruling in Laksh Vir Singh Yadav v Union of India, which for the first time constructs a comprehensive constitutional framework for de-indexing and masking judicial records. The essay argues that India’s right to be forgotten has developed backwards: courts have built doctrine before Parliament built law, producing a right that is available in some High Courts, while absent in others, and dependent on which litigant reaches which forum. It contends that this judicial improvisation, however necessary given legislative silence, sits uneasily with open justice, press freedom, and the discipline against ad hoc constitutional lawmaking, and that continued reliance on Article 21 alone without any legislative right to erasure enforceable against private search engines risks producing a right whose availability depends on postal codes rather than the principle. The essay closes by proposing a modest legislative amendment, informed by comparative experience under the General Data Protection Regulation, to anchor the emerging right on a durable statutory footing.