116 B, Mittal Towers, Nariman Point, Mumbai, India

Background Of the Case
A Madras High Court Bench led by Justice R. Subbiah & Justice Sathi Kumar Sukumar Kurup on 16th April 2020, delivered the judgement in the light of the present case dealing with right to privacy and freedom of speech and expression, enshrined in the Constitution of India.

In this case Deepa Jayakumar (“Appellant”), the niece of the former Chief Minister of Tamil Nadu, late Dr. Jayalalitha sought to exercise the right to privacy on behalf of her late aunt. The Appellant was concerned about the authenticity of two projects that were based on the life of the late CM, a film titled “Thailavi” in Tamil and "Jaya" in Hindi (“the film”), as well as the web series “Queen” and sought an injunction against the release of both. Late Dr. Jayalalitha was a public personality who was well known in Tamil Nadu and a reputable figure in Indian Politics. The original application was dismissed and, aggrieved by the order passed by the Learned Single Judge, the applicant filed an Original Side Appeal before the Madras High Court with the intent to protect the dignity of her late aunt after death, as a way to safeguard and claim posthumous privacy.

Facts Of the Case

In the present suit, the Appellant was the legal heir and niece of the late Dr. Jayalalitha. She claimed to have played a crucial part in the deceased’s life. The submission of the Appellant was that Respondents 1 and 2 were involved in the production of the film based on the biography of her late aunt. Respondent 1 was the director and Respondent 2 the producer of the contested film. Respondent 3 was the director of the web series "Queen". The Appellant argued that the film and web series were being produced with the intent of commercial and monetary gain and no prior consent had been obtained from the Appellant.

The film was based on the book “Thalaivi”, copyright in which was obtained by Respondent 2 from the Publisher of Saaraansh Media Solutions Pvt. Ltd. The web series involved a dramatisation and fictional recreation of events mentioned in the book titled "The Queen" authored by Ms. Anita Sivakumaran.

Arguments Made by the Appellant/Plaintiff
  • The Appellant contended that Dr. J. Jayalalitha’s personality rights and her family’s privacy rights should be protected. The Appellant was not aware of the story, script, screenplay, and dialogue prepared by the Respondents.
  • The Appellant also apprehended that the portrayal of Dr. J. Jayalalitha’s life, as well as the Appellant’s part in the said productions, might be incorrect and misleading due to the use of the Respondents’ portrayal of their own narrative.
  • The Appellant requested for an interim injunction restraining Respondents 1 to 3 from releasing or publishing in any form, any film, drama, serial, teleserial, web series, or any other literary or artistic expression concerning the life of Dr. Jayalalitha, or her family members without the consent of the Appellant.
     


Arguments made by the Respondents
  • The Respondents argued that the suit filed by the Appellant was ‘vitiated by multifariousness’ & was ‘legally impermissible’ as it was instituted in respect of three different and distinct causes of action against three different parties.
  • The production of the biopic was done from the information available in the "public domain" such as books, interviews, and such.
  • That Respondent 2 held copyright in the book “Thalaivi” as the publisher had assigned and transferred the copyright and all accompanying rights in the book in his favour.
  • The Respondents submitted that they had incurred huge expenses in the production of the film.
  • Respondent 3 contended that the Appellant had falsely identified him as the producer of the web series, whereas, he was only the director and not the producer.
  • That there was an unreasonable delay in the filing of the plaint.
  • That the suit was an abuse of the legal process as the Appellant was not in close contact with the late Dr. Jayalalitha during her lifetime and their relationship had been strained, as admitted by the Appellant in an article dated 18th December 2016.
     
Observations of the Court

  1. Whether the posthumous right of late Dr. Jayaliltha could be inherited by the Appellant and whether in furtherance of the same the Appellant could request the Court to restrain the respondents from releasing the web series or film
    After hearing the submissions of both the parties the Court opined that the private life of the Appellant was not being invaded since the film was based on the book “Thailaivi” which was directed and produced by Respondents 1 & 2. Similarly, it was noted that the web series "Queen" was authorised, adapted, and commercialised based on the book "Queen" and contained a “disclaimer” stating that is not a biography of any character. The Court cited several decisions, including K.S. Puttaswamy vs. Union of India 2017 (10) SCC 1, Managing Director, Makkal Tholai Thodarpu Kuzhumam Ltd. vs. Mrs. V. Muthulakshmi 2007 (6) MLJ 1152, Melepurath Sankunni Ezhuthassan vs. Thekittil Geopalankutty Nair 1986 (1) SCC 118.

    Employing the rules laid down in the aforementioned cases, the Court stated thatwith the death of a person, the privacy, reputation, or the personality, that the person is entitled to enjoy during his or her lifetime extinguishes. Unlike property, reputation cannot be inherited by legal heirs of a person. Therefore, it was held that "posthumous right" is not an "alienable right" and the Appellant was not entitled to an injunction on the grounds that her aunt’s "posthumous right" would be sullied by the release of the film and web series.

    Moreover, in the earlier order passed by the Learned Single Judge Bench, it was observed that Appellant was not a near relative of the deceased. Thus, it was difficult to accept that the Appellant had inherited the personality rights of the deceased, and such rights appear prima facie to be insubstantial. In this regard, the bench cited “The Veerappan Case” (2007) 6 MLJ 1152. In this case, the Madras High Court had held that Veerappan’s right to privacy did not subsist pursuant to his death and that the right to privacy of his wife and daughter would in no way be affected. An interim injunction restraining the release of the serial "Santhana Kadu" was not granted since the serial was based on public records and field information.
     
  2. To what extent the Freedom of Speech and Expression is enjoyed by the Filmmakers?
    The Court further stated that the right of freedom of speech and expression enshrined under Article 19 (1) (a) of the Constitution of India is not conditional/restricted on the premise that a filmmaker must only portray one particular version of facts.” Therefore, there was no obligation on the part of the Respondents to take prior consent from the Appellant. The Court cited several precedents, including F.A. Picture International vs. CBFC AIR 2005 Bombay 145. In this case, the Bombay High Court had held that artists, filmmakers, and playwrights are entitled to portray incidents that have previously taken place and to present their narrative of such incidents, as long as it is a “balanced portrayal of social reality”. The Bombay High Court further stated that the Constitutional protection under Article 19(1)(a) enjoyed by a filmmaker is not conditional since it is up to their discretion whether they are willing to depict something which is not true to life. Additionally, influential personalities holding important positions must gracefully accept criticism as any filmmaker cannot be compelled to portray only a particular version of reality in a web series or movie. The Court also cited cases such as S. Rangarajan vs. Jagjivan Ram 1989 (2) SCC 574 & Ramesh Pimple Vs. CBFC (2004) 5 Bombay CR 214 which focused more on the objective of the constitutional protection offered by Article 19(1). It held that inability to handle the “hostile audience problem” cannot be pleaded and any sustainable democratic society and government must respect and be tolerant towards diversified viewpoints.
     
  3. In whose favour does the balance of convenience lie?
    The learned Single Bench Judge had stated that the balance of convenience was in the favour of the Respondents. The Court noted that it had been nine months since Respondent 3 had commenced the production of the web series and an amount of INR 20 crores had been invested in the production. Thus, if an interim order was granted it would be difficult to compensate the Respondent. With regard to Respondent 1 and 2, the Court stated that the requirement of certification would serve as sufficient protection to the Appellant.

    The Respondents were to apply to the Central Board of Film Certification (CBFC) for certification. The CBFC would go through the contents of the film and only if it is found appropriate, release would be permitted. With regard to the web series, the Court observed that if under any circumstance the Appellant felt aggrieved by the depiction of the deceased or her family, she could apply to the Court for damages. Since the web series had already been released on the OTT platform and viewed by a sizeable audience an injunction could not be granted.

Key Takeaways
Post humous rights cannot be inherited. Filmmakers cannot be expected to portray only one version of facts. The balance of convenience for grant of an injunction did not lie in favor of the Appellant.


CONCLUSION
The Supreme Court held in Ram Sharan Autyanuprasi Vs. Union of India AIR 1989 SC 549 that “the right to life enshrined in Article 21 of the Constitution would include all that gives meaning to a man’s life namely, his tradition, culture, heritage and protection of that heritage in its full measure.”

The Madras High Court in this order had stated that the existence of a posthumous right to privacy is ‘tenuous and amorphous’ while refusing to grant an injunction against the Respondents. It cited K.S. Puttaswamy Vs. Union of India 2017 (10) SCC 1. The relevant portion of the judgment cited is: “The right to privacy of any individual is essentially a natural right, which inheres in every human being by birth. Such right remains with the human being till he/she breathes last. It is indeed inseparable and inalienable from the human being. In other words, it is born with the human being and extinguishes with the human being." On the contrary, in Pt. Parmanand Katara Vs. Union of India 1995 (3) SCC it was held that, “the petitioner’s that right to dignity and fair treatment under Article 21 of the Constitution of India is not only available to a living man but also his body after his death.” Hence, it can be said that the lack of a particular statute with regard to the post-mortem rights of an individual in India makes the stance on inheritance of these rights obscure.

The Hon’ble Court also emphasized the need for the Freedom of speech and expression of filmmakers to be well protected and safeguarded. This need was also highlighted by the Supreme Court in LIC v. Manubhai D.Shah1992 SCR (3) 595 where it was held that “the print media, the radio, and television are vital public educators in a democracy, the freedom to air one's views is the lifeline of every democratic institution and any attempt to stifle, suffocate or gag this right would be inconsistent with a democratic set up”.

The grant of an injunction is in the nature of equitable relief, and the court has undoubtedly the power to impose such terms and conditions as it thinks fit. Additionally, three conditions must be satisfied before granting the injunction- firstly, a prima facie case must be made out in favor of the plaintiff; secondly, it should be established that if the plaintiff would suffer irreparable injury if the injunction was not granted and thirdly, the balance of convenience must lie in favor of the plaintiff. These conditions were not satisfied. Considering the given facts and circumstances, it seems that the Madras High Court rightly denied the grant of an injunction to the Appellant and dismissed the suit. However, there is a growing discussion regarding the need for post-humous privacy and it needs to be reconsidered in light of the emergence of ‘digital remains’ and ‘digital legacy’ and further analysis is required.