The two plaintiffs are mothers of victims, namely, Ms. Abinta Kabir and Ms. Tarishi Jain, of Holey Artisan (Dhaka, Bangladesh) Terrorist Attack that was carried on 1st July, 2016. The defendants are producers of a movie by the name of “FARAAZ” which according to the plaintiffs may depict the daughters of the plaintiffs in bad light in relation to the Terrorist Attack which would be difficult for the plaintiffs as they would have to revisit the traumatic incident all over again. The plaintiffs sought ad-interim injunction for restraining the defendants from releasing the movie “FARAAZ” and to restrain the defendants from using plaintiff’s daughters’ names and also the name of their best friend Faraaz Ayaaz Hossain and their image/caricature/ lifestyle/likeness in the movie in any manner, amongst other related relieves. According to the plaintiffs, such depiction of the daughters of the plaintiffs or their friend Faraaz amounts to defamation as it indirectly impacts their reputation and further is in violation of fundamental right to privacy. The plaintiffs also alleged that the release of the movie shall influence the trial of the accused being tried before Indian Courts in relation to the same terrorist attacks and shall violate their right to Fair Trial under Article 21 of the Constitution of India. One of the prayers before the court was for the pre-screening of the film ot the plaintiffs in order to determine the extent of violation.
After becoming aware of the movies, the plaintiffs separately sent Legal Notices calling upon the defendants to refrain from production/release of the movie. The defendants declined to comply with the demands of the plaintiffs in their reply.
The plaintiffs approached Hon’ble High Court of Delhi. While relying on the judgment in the case of K.S. Puttaswamy and Ors. v. Union of India (UoI) and Ors. (2017) 10 SCC 1, the main argument of the plaintiffs was that the movie is made in violation of the right of privacy being an inalienable human right and an intrinsic part of right to life and liberty guaranteed under Article 21 of the Constitution of India. As per the judgment in K.S. Puttaswamy, the right to privacy can be claimed both against the State and non-State actors. The plaintiffs have not only right of privacy but also right of being left alone to grieve in privacy of their homes which is superior to the right of the defendant to commercially exploit a tragic incident. It was argued that plaintiffs were private persons living a life away from public glare unlike persons holding public office or celebrities. Further, the right to make a feature film cannot be equated to right to of press to report events.
In their written statement, the defendants argued that the story of the Terrorist Attack has been documented in podcasts and books and has also been made into an awarded motion picture. The material is available in public domain and reveals intricate details of the attack including the identities of all the victims including the daughters of the plaintiffs, their ordeal and the manner in which the terrorists conducted themselves. The defendants pressed their fundamental rights guaranteed under Article 19(1)(a) and 19(1)(g) of the Constitution to create and produce the feature length cinematograph film. Not only did the defendants claimed that the movie is a work of fiction but also that the film is not about the daughters of the plaintiff and no character in the film has the names of the daughters of the plaintiff. The defendants also mentioned that Faraaz Hossain was posthumously awarded the Mother Teresa Memorial International Award for Social Justice in 2016 for his acts of bravery on the day of attack. His bravery has been recognised worldwide. It was further stated that although the Bangladeshi Censor Board may have prohibited the exhibition of the Bangladeshi film on the Terrorist Attack, the laws and constitutional rights in India impose no such restrictions and in any event, the movie shall be released only after the approval from the Central Board for Film Certification in India. Further, the family of Faraaz has already given a “No Objection” to the use of name of Faraaz in the movie.
The Court divided the analysis into three headings. First head was made to see whether there is a prima facie case. In order to further simplify it the Court went into the right to privacy being a right in personam – whether this right extends even after the death of a person and can be agitated by the legal heirs to protect the dignity of the person who is no more in this world? The Court referred to the judgment of Madras High Court in the case of Managing Director, Makkal Tholai Thodarpu Kuzhumam Limited v. Mrs. V. Muthulakshmi, (2007) 6 Mad LJ 1152 wherein it was held that the right to privacy does not subsist after the death and therefore the Court declined to grant interim injunction to restrain the release of the serial ―Santhana Kaadu based on the life of Late forest brigand Veerappan. The Court also referred to Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair, (1986) 1 SCC 118 wherein a broader principle of acto personalis moritur cum persona was discussed. It means a personal action dies with the person. Therefore, on the death of either party extinguishes the cause of action in Tort by one against the other and in a suit for defamation, the cause of action does not survive in favour of the legal heirs and it being the personal right and the suit has to necessarily fail. In a more recent case (Deepa Jayakumar v. A.L. Vijay & Ors. 2021 SCC OnLine Mad 2642), which was filed for grant of ad interim injunction against release of the movie Thallaivi, it was affirmed that “right of privacy of an individual” cannot be inherited by the legal heir after death like other assets and that “posthumous right” is not an “alienable right”. The Court therefore, concluded that “[a]fter the death of a person, the reputation earned cannot be inherited like a movable or immovable property by his or her legal heirs. Such personality right, reputation or privacy enjoyed by a person during his life time comes to an end after his or her life time”. In the light of discussion thus, the case of plaintiffs was squarely covered by the settle law that mothers cannot inherit the right of privacy of the daughters. The Court however, added a general exception to the rule – “The only circumstance wherein the plaintiffs may be able to sustain an injunctive relief is in the case of appropriation of identity as defined by Prosser which means that where one person uses another’s name, the focus is on plaintiff’s name as a symbol of identity and not on the name per se.” This exception was not applicable in the present case.
