In a significant Delhi High Court judgment last week, litigants acquitted in legal proceedings were granted their 'right to be forgotten' as a facet of the fundamental right to privacy. The court ordered search engines and public databases to 'de-index' names.So, judgments and news reports mentioning that these litigants were involved in certain legal proceedings containing the litigants' names will not be displayed in response to certain keyword online searches. This judgment is worrying for multiple reasons.The court grounds this right as declared by Supreme Court's 2017 Puttaswamy judgment, in which 9 judges delivered 5 different verdicts declaring that the Constitution recognised a 'fundamental right to privacy', including informational privacy, grounded in the notion of dignity and reputation. But that verdict was ambiguous on whether this fundamental right to privacy could be enforced against only the state, or could extend to non- state actors. In the latest judgment, the high court offers no reason for choosing to go with one judge, while ignoring the equally binding dictate of the other.The court's willingness to go beyond the legislative mandate on privacy is problematic. When Parliament enacted Digital Personal Data Protection Act (DPDPA) 2023, to regulate the relationship between citizens and companies processing their personal data, it didn't provide for a 'right to be forgotten'. In fact, an earlier Bill containing it was withdrawn from Parliament. This elicits confusion on boundaries between free speech and privacy that could lead to damaging consequences for innovation and journalism.The court's framing as a right to restrict access to information 'no longer relevant or serves no legitimate public purpose' inverts the notion of fundamental rights. It is up to the person seeking restriction to justify its need. This is difficult especially when the fundamental right to privacy clashes with that of free speech.It is the duty of the court to provide reasons why this right may be curbed. Its reasoning that the information in question has no 'legitimate public purpose' is vague and opens the door to arbitrary censorship.Arbitrary outcome of this approach is evident in the test formulated by the court, in which persons convicted of crimes against women and children, and also cases of public officials breaching public trust, are excluded from 'right to be forgotten'. But cases where a person has been acquitted or discharged without a trial can seek to exercise the same right. This instrumentalist logic collapses when presented with a scenario in which a person is acquitted of sexual offence or violating public trust because of a botched investigation, witnesses turning hostile or a judge found to be biased. Why should the public be denied this information? The judgment is silent.The verdict ignores that Parliament has already acted to mask the identity of litigants due to privacy concerns. These include laws for juvenile crime, sexual offences and matrimonial proceedings, which either mandate or offer the option of 'in-camera' proceedings.Finally, there's the issue of evidence. The court has ordered global de-indexing of search engines and databases identified by litigants, based on nothing more than the latter's assertion that news of their acquittal is harming them. There is no evidentiary fact-finding by the court regarding these claims of 'harm' made by litigants.The court may explain this away by claiming that it cannot get into evidentiary questions in proceedings for a writ petition under Article 226. But, then, it must turn away such litigants and direct them to approach civil courts for declaratory relief. This would enable the courts to parse through evidence of harm while adjudicating claims.There's an existing appeal before Supreme Court on the contours of the 'right to be forgotten'. But the declaration by the apex court that privacy, especially informational privacy, is a fundamental right, has opened the door for GoI to amend RTI Act, and for the judiciary to 'shrink' the internet via this order. Reopening that privacy question is now paramount, if India seeks to preserve the right of every citizen to access public records.The writer is co-author of Tareekh Pe Justice: Reforms for India's District Courts(Disclaimer: The opinions expressed in this column are that of the writer. The facts and opinions expressed here do not reflect the views of www.economictimes.com.)