Codifying a balancing test for the right to be forgotten in India

Abstract

India’s right to be forgotten has developed twice, first on paper and then in the courtroom, and the two versions no longer align. The Justice B.N. Srikrishna Committee, in 2018, proposed a right to erasure structured around a five-factor balancing test and overseen by an independent Adjudication Wing. Five years later, the Digital Personal Data Protection Act, 2023 preserved the label of erasure in Section 12 but discarded the mechanism: there is no statutory balancing test and no independent adjudicator. The decision whether to erase data now rests with the data fiduciary alone. High Courts have since filled that vacuum, most notably in Laksh Vir Singh Yadav v. Union of India (2026), through a judicially crafted regime of de-indexing and masking that Parliament never enacted. This article traces how these two tracks have diverged and argues that India’s right to be forgotten is now half statute and half judgment, imperfectly stitched together. The result is unequal protection for individual litigants and a right that remains substantively uncodified