Prof(Dr).Debarati Halder*

On October 3, 2021, India woke up to the big news of celebrity drug on cruise case where the key accused was a 23 year old young adult man, Aryan Khan. The news media revealed that Khan, the elder son of Bollywood superstar Shahrukh Khan, had been arrested by the officer of the Narcotics Control Bureau (NCB), Mumbai and was charged for knowingly consumption, sale and purchase   of narcotic substances under the Narcotic Drugs and Psychotropic Substances (NDPS) Act. The family of the arrested immediately tried for bail, but was not successful. The legal technicalities revealed that Khan had to approach the special NDPS court for bail once the judicial magistrate who was hearing the matter of arrest of Khan rejected the bail plea on ground of non-maintainability of such bail matter in courts other than NDPS courts. Khan was first put in the custody of  NCB for a brief period after which he was sent for judicial custody, which in plain words may mean that he was put up in a regular jail meant for accused who has not yet been convicted by the courts. The NCB reportedly argued against his bail stating that being the child of a celebrity father, Khan may have every opportunity to access to narcotics, he may be able to get involved in the selling and purchasing of the prohibited substances.  Later when the matter went to Bombay High Court for appeal against the rejection to bail, the WhatsApp chats between Khan and his friends were also pulled in as the defense in the High Court wanted to establish that Khan was already discussing about the selling, purchasing, consuming etc. of drugs over WhatsApp chats. The Bombay High court however, granted him bail and he was released from judicial custody after two days of the passing of the order.

My concern here centers around the concept of privacy and confidentiality of the accused which flows from the Universal Declaration of Basic Principles of Human Rights,[1] adopted by the Indian Constitution[2] and which to a certain extent, reflects in the Criminal Procedure Code, 1973 especially with the courts increasingly accepting the Right to be forgotten jurisprudence. We must not forget that an accused is innocent until proven guilty. Given the case of Khan, it may be seen that his arrest and then judicial custody in the jail in Mumbai became an open ‘document’ which has been consumed by public at large. Narcotic Drugs and psychotropic substance abuse cases may not be the regular criminal cases involving the offender and the victims unless otherwise proven where the substance consumer had been forced to consume such substances following several illegal mechanisms, or where the accused is found to have been involved in the drug peddling racket. Such cases may typically fall within the meaning of victimless crimes where ‘offenders’ themselves turn into victims of substance abuse. Such cases must be dealt with extreme care by the judiciary and the correctional administration where the offender-victim may need rehabilitation.  Such cases however are extremely complicated as it may often be seen that substance abusers may be involved in the drug peddling rackets too. But the central point here is, unless proven, the accused can not be considered as guilty even in such cases as well. Then why such cases of celebrity accused persons attract so much public attention and why certain media channels make such news items as matters of national level concern? One of the reasons for this in my understanding is, the inquisitiveness of the public regarding the life style of the ‘celebrity accused’. Several news channels shared the contents of arrest memo of Aryan Khan which in reality should not be shared unless it is considered as a public document by the courts. Some other news media channels shared stories as what should be Khan’s daily food routine as a detainee in the jail, [3] what did Khan read inside his prison cell, [4] etc.

We must understand that while the courts may make certain orders publicly accessible for ensuring transparency of the judicial proceedings, the same cannot and should not be misused for media trials.[5] The Bombay High court order for releasing accused Aryan Khan on bail is available on several legal news platforms.[6] But Khan’s Day to day to affair in the jail is a matter which must have been given a confidentiality cloak. Right to be forgotten is a protection against further victimization of the accused by the society at large and is an integral part of reformative justice jurisprudence whereby the accused may be given a new opportunity to join the mainstream society as a reformed and positive individual.  The case is not closed now and Khan is neither convicted, nor acquitted of the case. But when the prosecution may establish that he is guilty, and in such case once he finishes his sentence period, or when the defense may establish that he is not guilty, Khan may consider to request the court to exercise his Right to be Forgotten and the court may then consider directing different digital platforms to restrict public access to the bail orders and remove the contents about him which shows him as an accused from the digital platforms of different news media channels. Interestingly, Part III of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021(IT Act Rules, 2021) may offer some solace if Khan or any other person who may establish a proper locus standi, wishes to approach the court or the news media channels directly for applying Right to be Forgotten or for removing contents that may be misleading, damaging the reputation of the accused. Rule 8 of the IT Act, Rules, 2021 extends the application of the Rules to the publishers of the news and current affairs contents and of online curated contents and the application of these Rules for Part III is administered by the Ministry of Information and Broadcasting, Government of India. The Rule suggests that any one who is aggrieved by any news content may directly contact the grievance mechanism cell established by the publisher of the news media portal/channel/paper. If the problem is not solved, then the aggrieved can reach out to the next level, i.e., self-regulatory body.[7] If the aggrieved is not satisfied with the decision of the self-regulatory body, then he/she can further approach interdepartmental committee which is considered as level III grievance redressal mechanism for the purpose of maintaining code of ethics, and which works for the oversight mechanism by the central government. In short, this Rule makes it easier for the aggrieved party   to approach the concerned authorities for removing or blocking an unwanted content which may be misleading, defamatory, damaging the reputation of some one etc. One may not approach the higher courts through Writ Petitions.  We must acknowledge that many female professionals including actors, models, athletes, journalists, writers and YouTubers etc., are constantly targeted in several news media channels for their daily activities , expression of thoughts or even cases of victimization of different sorts. If such women are held as accused or had become victims, they may also consider for applying for their Right to be Forgotten, they may also approach the concerned forums under the above mentioned Rule to remove unwanted news contents which are no longer relevant   But it must also be seen that application of Part III of the IT Act, Rules, 2021 should not pose a bar against judicial transparency and freedom of speech and expression.

 We must not forget that Right to be Forgotten is an extension of the right to privacy which every accused must have. Given the fact that the news stories about the accused in the Cruise drug case may remain floated on the information super highway for a long time, it is expected that the news media channels and their publishers may consider restricting further infringement of privacy of the accused.

Please note: The views expressed in the writeup are that of the author’s.  Please cite it as “Halder Debarati (2021) The celebrity ‘Drug on Cruise case’ of  2021 and the ‘may be considered’ Right to be Forgotten. Published in https://wordpress.com/post/internetlegalstudies.com on 06.11.2021”

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*Prof(Dr) Debarati Halder, Ph.D(Law) is working as Professor of Law, Parul Institute of Law, Parul University, Vadodara, Gujarat. She is also the founder of Centre for Cyber Victim Counselling (www.cybervictims.org) . She can be reached @debaratihalder@gmail.com

[1] See Articles 11 (right to be presumed innocent until proven guilty), and 12 right to privacy against arbitrary interference with his privacy, family, attack upon his honour and reputation etc) of the Universal Declaration of Human Rights.

[2] Even though the scope of Article 21 of the constitution of India has been expanded to include right to privacy due to the landmark cases including Justice Puttaswamy vs Union of India & others, Writ Petition (Civil) No 494 of 2012; (2017) 10 SCC 1; AIR 2017 SC 4161

[3] Outlook Web Bureau (2021). Lunch At 11 Am, Dinner At 6 Pm: Aryan Khan’s Daily Routine In Arthur Road Jail. Published in   https://www.outlookindia.com/website/story/entertainment-news-breakfast-at-7am-dinner-at-6pm-what-n956-aryan-khans-life-in-arthur-road-jail-looks-like/397783 on 16-10-2021. Accessed on 02.11.2021

[4] Livemint (2021). Aryan Khan reading religious books in Jail, say authorities. Published in   https://www.livemint.com/news/india/aryan-khan-reading-books-on-lord-ram-sita-in-jail-say-authorities-11635060965958.html on 24-10-2021. Accessed on 02.11.2021

[5] For more understanding, see The Chief Election Commissioner of India v M.R. Vijayabhaskar & Ors , Civil Appeal No. 1767 of 2021 (Arising out of SLP (C) No. 6731 of 2021). Available @https://main.sci.gov.in/supremecourt/2021/11474/11474_2021_35_1502_27915_Judgement_06-May-2021.pdf Accessed on 02.11.2021

[6] For example, see ARYAN SHAH RUKH KHAN. V/s THE UNION OF INDIA & ANR.CRIMINAL APPELLATE JURISDICTION,  CRIMINAL BAIL APPLICATION NO. 3624 OF 2021 Available @https://www.livelaw.in/pdf_upload/aryan-khan-case-bail-condition-403194.pdf, accessed on 02.11.2021

[7] Rule 12(2) of the IT Act Rules, 2021 states as follows:

(2) The self-regulatory body referred to in sub-rule (1) shall be headed by a retired judge of the

Supreme Court, a High Court, or an independent eminent person from the field of media, broadcasting,

entertainment, child rights, human rights or such other relevant field, and have other members, not

exceeding six, being experts from the field of media, broadcasting, entertainment, child rights, human

rights and such other relevant fields.

(3) The self-regulating body