Subhranshu Rout v. State of Odisha: the right to be forgotten for survivors

The facts in brief

The accused, Subhranshu Rout — also known as Gugul — allegedly created a fake Facebook account, uploaded sexually explicit images and intimate videos of the prosecutrix, and used the material to harass, blackmail, and shame her. The images and videos were said to have been recorded without her consent.

FIR No. 138 of 2020 was registered at Saharpada Police Station, Keonjhar district, on 12 June 2020. The offences invoked were ss.354A (sexual harassment), 354C (voyeurism), 376 (rape), 506 (criminal intimidation), and 507 (criminal intimidation by anonymous communication) of the Indian Penal Code, 1860, read with ss.66E (capture and transmission of private images without consent), 67 (publishing obscene material in electronic form), and 67A (publishing sexually explicit material) of the Information Technology Act, 2000.

The accused was arrested and remanded. He moved BLAPL No. 4592 of 2020 before the Orissa High Court at Cuttack seeking regular bail under s.439 of the Code of Criminal Procedure, 1973. The connected CrlMA No. 5236 of 2020 sought directions for removal of the offending content from Facebook and from cached search-engine results — relief sought on the prosecutrix's behalf through the State.

The prosecution opposed bail. The State and the prosecutrix jointly urged that allowing the material to remain accessible during the pendency of the trial would defeat the very purpose of prosecution. Despite multiple representations to Facebook and to the Ministry of Electronics and Information Technology, the offending content had not been promptly taken down. The prosecutrix continued to suffer ongoing harm from third-party shares, screenshots, and cached search-engine results.

Justice S.K. Panigrahi, sitting single bench at the Cuttack bench, framed the question whether the criminal trial process alone, divorced from the digital persistence of the material, could vindicate the victim's dignity — and answered in the negative.

The constitutional question

Two questions ran together. The first was the conventional bail question: did the gravity of the offence, the likelihood of intimidation, and the risk of evidence tampering justify continued custody?

The second was constitutional. India had no statutory right to erasure. The Personal Data Protection Bill, 2019 was then pending; what later became the Digital Personal Data Protection Act, 2023 was still some way off. In the absence of statute, did Article 21 — read with the Puttaswamy informational-privacy holding — supply a constitutional basis for ordering the de-indexing and removal of unlawful content concerning the prosecutrix during the pendency of trial? Did the right of a survivor of a sexual offence to be free from the continuing publication of intimate images exist as a freestanding constitutional right, or was it merely an aspect of the bail-stage relief that the trial court could grant?

What the Court held

Bail refused

The bail application was refused. The gravity of the offence, the high probability of intimidation of the prosecutrix, the risk that the accused would attempt to reach the material's distribution chain, and the ongoing harm from the continued online availability of the material together weighed against the accused.

The right to be forgotten as a facet of Article 21 informational privacy

The Court located the right to be forgotten within the K.S. Puttaswamy declaration of informational privacy as a facet of Article 21. The constitutional anchor is dignity. Allowing intimate images of a survivor of sexual assault to remain in the public domain while the trial is ongoing inflicts a fresh injury each time the content is viewed. The "Streisand effect" of criminal proceedings compounds the original violation: the very prosecution that is meant to vindicate the victim draws renewed attention to the underlying material.

A contextual, not absolute, right

Critically, Panigrahi J. framed the right as contextual rather than absolute. There is no general right of every offender or every public figure to demand erasure of inconvenient digital history. The doctrinal threshold is met where the original violation is grave — sexual offences, captured-without-consent intimate material, harassment-driven publication — and where the digital persistence is itself a continuing injury to dignity.

Comparative-law transplant — carefully done

The judgment draws on the Court of Justice of the European Union's Google Spain SL v. Agencia Española de Protección de Datos (C-131/12, 13 May 2014) and on the right-to-erasure provisions of the EU General Data Protection Regulation. The transplant is, however, careful. Panigrahi J. observes that India then had no statutory right of erasure; the Personal Data Protection Bill, 2019 was pending. In the interregnum between Puttaswamy and a comprehensive data-protection statute, courts must read Article 21 expansively to recognise erasure as a remedy where the victim's identity, dignity, and bodily integrity are continuously violated by the persistence of unlawful content.

Operative directions

The Court directed that the State coordinate with Facebook for immediate removal of the offending content and de-indexing from search engines. Liberty was reserved to the prosecutrix to seek further reliefs at the trial stage. The Court declined to lay down a comprehensive framework for the right to be forgotten in India, observing that legislative architecture — through the then-pending data-protection law — was the appropriate vehicle for a comprehensive solution.

The doctrinal architecture

Subhranshu Rout sits at the intersection of three doctrines.

It operationalises informational privacy as a substantive right in the Puttaswamy afterlife. Puttaswamy declared privacy a fundamental right; Subhranshu Rout asks what privacy means when the violation has been digitally captured and is being continuously redistributed. The answer is that the right to privacy must include the right to be forgotten — at least where the original violation is grave and the persistence is itself a continuing harm.

It introduces a victim-centred framing of intermediary obligations. The order is not, technically, an order against Facebook — Facebook was not a party in the conventional adversarial sense. The directions ran through the State, asking the State to coordinate with the intermediary. The framing matters because it preserves the Shreya Singhal v. Union of India (2015) 5 SCC 1 safe-harbour baseline (private complaints do not displace s.79) while recognising that a government-channelled, court-supervised request for removal of unlawful intimate material does not raise the same constitutional concern.

It establishes the contextual-calibration model for the right to be forgotten. The right is not a general right of every individual to demand erasure. It is calibrated to the gravity of the violation and to the dignity stakes. The framing is what distinguishes Subhranshu Rout from the broader European right-to-erasure model: the Indian right is anchored in specific dignity-protective contexts rather than in a general data-protection entitlement.

What the judgment did not decide

The order does not lay down a comprehensive framework for the right to be forgotten in India. It does not resolve whether the right runs against private parties as well as the State. It does not address the conflict with freedom of the press under Article 19(1)(a) where the published material is part of contemporaneous court reporting — the R. Rajagopal v. State of Tamil Nadu (1994) 6 SCC 632 conflict was left open.

It does not address the procedure for de-indexing — whether the victim must approach the search engine directly, the intermediary, or seek a court order. It does not rule on the extraterritorial reach of an Indian court's takedown order against a non-Indian platform. It does not decide whether the right survives the original criminal trial's outcome — for instance, if the accused is later acquitted, does the survivor's right to demand erasure of the material continue? And it does not purport to substitute for legislative architecture, expressly inviting Parliament to act.

After the order

Subhranshu Rout opened a line of authority that has rapidly developed across the High Courts.

In April 2021, the Delhi High Court in Jorawer Singh Mundy v. Union of India — Pratibha M. Singh J., single bench — granted interim de-indexing of an acquittal, applying and extending the Subhranshu Rout reasoning. The Karnataka High Court, in X v. Registrar General (2021 SCC OnLine Kar 21) extended the principle to suppression of judgment-name in a quashed prosecution. The Madras High Court in Karthick Theodore v. Registrar General (WP No. 18029 of 2020, 4 August 2021) and the Kerala High Court in Vysakh K.G. v. Union of India (2023 SCC OnLine Ker 480) have each cited Subhranshu Rout as foundational.

The Supreme Court has not yet authoritatively ruled but has accepted multiple SLPs raising the question. The doctrinal infrastructure has shifted: the right to be forgotten is now a routinely-invoked Article 21 claim in High Court writ petitions across multiple subject-areas — sexual-offence survivors, acquittees, journalistic and reportage subjects, and persons named in commercial-litigation judgments.

The Digital Personal Data Protection Act, 2023 now codifies, at s.12(2)(a), the right to correction, completion, updating, and erasure of personal data — a statutory cousin of the right to be forgotten. The constitutional dimension articulated in Subhranshu Rout retains independent significance, particularly where DPDP exemptions under s.17 apply or where the harm falls outside the data-fiduciary architecture. The case is now cited in over forty reported High Court orders.

Related on Valkya

• Jorawer Singh Mundy v. Union of India: interim delisting of an Indian acquittal
• K.S. Puttaswamy v. Union of India: the nine-judge privacy declaration
• Shreya Singhal v. Union of India: striking down Section 66A
• DPDP Rules 2025 — a practitioner's read

Sources

1. SCC OnLine — Subhranshu Rout @ Gugul v. State of Odisha, 2020 SCC OnLine Ori 878 (primary citation): https://www.scconline.com/blog/post/2020/11/24/orissa-high-court-right-to-be-forgotten/
2. LiveLaw — "Orissa HC Recognises 'Right To Be Forgotten' For Rape Victim": https://www.livelaw.in/news-updates/orissa-high-court-right-to-be-forgotten-rape-victim-166260
3. BarandBench — "Right to be forgotten: Orissa HC's significant Article 21 ruling": https://www.barandbench.com/news/litigation/right-to-be-forgotten-orissa-high-court-article-21
4. Global Freedom of Expression (Columbia) — Subhranshu Rout v. State of Odisha case page: https://globalfreedomofexpression.columbia.edu/cases/subhranshu-rout-state-odisha/
5. Internet Freedom Foundation — Right-to-be-forgotten tracker: https://internetfreedom.in/right-to-be-forgotten-india-jurisprudence/
6. SCC OnLine Blog — "The right to be forgotten and Indian constitutional law": https://www.scconline.com/blog/post/2020/12/right-to-be-forgotten-subhranshu-rout-article-21/