POSTHUMOUS RIGHT OF PRIVACY IN INDIA - A FAR FETCHED DREAM?
Authored by Dhruvo Das, a 4th-year law student at CHRIST (Deemed to be University), Bengaluru
On April 16, 2021, the Division Bench of the Madras High Court dismissed an appeal filed by Deepa Jayakumar, the niece of late Dr. J. Jayalalitha seeking an interim injunction against the release of a film titled “Thalaivi” and web series titled “Queen”, based on the life of late former Chief Minister of Tamil Nadu, Dr. J. Jayalalitha. The court, inter alia, examined whether the right to privacy exists after the death of an individual.
In November 2019, Deepa Jayakumar (hereinafter referred to as the “Plaintiff/Appellant”), the niece of late Dr. J. Jayalalitha filed a suit before the Madras High Court seeking an interim injunction to restrain the Respondents from producing any film, serial, drama, web series in respect of Dr. Jayalalitha and/or her family members without the consent of the Plaintiff. The Plaintiff alleged that Mr. A.L Vijay (hereinafter referred to as “Respondent No. 1”) & Mr. Vishnu Vardhan Induri (hereinafter referred to as “Respondent No. 2”) were planning to produce a film titled “Thalaivi” in Tamil and “Jaya” in Hindi and Mr. Gowtham Vasudev Menon (hereinafter referred to as “Respondent No. 3”) was planning to release a web series titled “Queen”, which were all based on the life of late J. Jayalalitha, without the consent of the plaintiff. The Plaintiff contended that aforesaid film and web series would violate her aunt’s personality rights and her family’s privacy.
Demystifying the Verdict of the Madras H.C (Single Judge)
The Single Judge wide his order dated 12.12.2019 refused to grant interim injunction in favour of the Plaintiff. The learned Judge stated that Respondent No. 1 and 2 were producing the film based on a book titled “Thalaivi” and they had acquired the cinema rights of the book. Further, the proposed film would not depict the Plaintiff and thus her right to privacy would not be violated. As regards to the web series produced by Respondent No. 3, the Judge observed that the web series must be permitted to be produced on account of its fictional nature and the massive expenditure incurred by the producer towards the same. The Judge held that Respondent No. 3 shall adhere to the commitment of providing a disclaimer that the web series is a work of fiction and ensure that no character closely resembling the Plaintiff shall be depicted.
The Judge stated that the Plaintiff being a distant relative of the deceased cannot exercise the right to privacy on behalf of her aunt. However, the Judge failed to address the issue of “posthumous right of privacy”.
Proceedings Before the Madras H.C (Division Bench)
Aggrieved by the order of the Single Judge, the Plaintiff filed an appeal before the Division Bench of the Madras H.C. The primary issue before the court was whether the right of privacy of the former Chief Minister of Tamil Nadu is inheritable by the Appellant to restrain the respondents from releasing the web series and film.
(a) Arguments Advanced by the Appellant
(i) The counsel argued that the Appellant being a class 1 legal heir of the deceased is entitled to institute the present suit to safeguard the “posthumous right of privacy” of her late aunt, Dr. J. Jayalalitha. The counsel placed reliance on the observations of the S.C in case of R.Rajagopalwherein the court had observed that “a citizen has the right to safeguard the privacy of his own, his family, marriage, procreation”.
(ii) Further, the counsel argued that the deceased, during her lifetime, always defended her privacy rights when there was a threat to her privacy and has even obtained a restrain order from the Madras H.C in the past. The Single Judge accepted the arguments of the Respondents who had argued that the right to privacy does not exist after death by relying on the Veerapan case. However, this case cannot be relied upon, as Veerapan did not oppose any publication which threatened his right to privacy, whereas Jayalalitha was pro-active in protecting her privacy, dignity and legacy during her lifetime.
(iii) The counsel for the Appellant argued that impugned film “Thalaivi” is not fictional, and is based the information available about late J. Jayalalitha in the public domain. As regards to the web series titled “Queen”, the counsel contended that, under the pretext of fiction, Respondent No.3 has portrayed several personal life instances of late J. Jayalalitha, which are untrue and demeaning to the dignified life led by the Appellant’s aunt.
(b) Arguments Advanced by the Respondents
(i) The counsel for Respondent No. 1 and 2 argued that the movie “Thalaivi” does not invade into the private life of the appellant or her family. The movie is based on the book titled “Thalaivi” authored by Ajayan Bala and they had acquired the cinema rights of the book vide an agreement dated 09.07.2018.
(ii) The counsel for Respondent No. 3 contended that the web series was based on the book “Queen”. The web series is inspired by true events and is a fictional representation of the same. Further, the web series carries a disclaimer that it is not a biography of any character.
(iii) The counsel for Respondent No. 3 further argued that the right to privacy ceases to exist after the death of a human being by relying on the landmark judgment of the S.C in the Puttaswamy case.
Decision of the Madras H.C (Division Bench)
(i) On the question of whether the right to privacy of an individual exists after death and whether the Film titled “Thalaivi” produced by Respondent No. 1 and 2 can be released, the court held that “it is clear that privacy or reputation earned by a person earned by a person during his or her lifetime, extinguishes with his or her death. After the death of a person, the reputation earned cannot be inherited like a movable or immovable property by his or her legal heirs. Therefore, we are of the opinion that “posthumous right” is not an alienable right and the appellant/plaintiff is not entitled to an injunction on the ground that the “posthumous right” of her aunt is sought to be sullied by the respondents by reason of the release of the film titled as Thalaivi”. The court stated that release of the movie is subject to the certification to be given by the CBFC.
(ii) As regards to the web series, the court held that “Queen” is inspired by true events and it is a fictional depiction of the same. Moreover, there is a disclaimer which states that it is not a biography depicting any character. The web series has been already released on an OTT platform and has been viewed by scores of people, thus an injunction cannot be granted against the telecast of the web series.
(iii) As regards to the contention of the Appellant that certain scenes in the web series have portrayed J. Jayalalitha in poor light, the court held that “the right to freedom of speech and expression enshrined under Article 19(a) of the Constitution of India is not conditioned/restricted on the premise that a filmmaker must only portray one particular version of the facts”.
The Division Bench of the Madras High Court dismissed the appeal.
This is not the first time an Indian court has dwelled upon the question of posthumous right of privacy. In the case of M/S.Akshaya Creations v. V.Muthulakshmi, the Madras High Court emphasised on the fact that a citizen has the right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. However, the court rejected the argument that the right to privacy continues and takes a new turn after the death of an individual. This issue has also been dealt with by the Supreme Court in the Puttaswamy case. The court held that “the right to privacy is indeed inseparable and inalienable from a human being. In other words, it is born with the human being and extinguishes with a human being”.
Recently, the Delhi High Court rejected an application or grant of a temporary injunction filed by late Bollywood actor Sushant Singh Rajput’s father seeking to protect the reputation and privacy and rights of his deceased son, which he claimed stand to be violated by movies such as “Nyay: The Justice“, “Shashank“, etc. that are purportedly inspired by SSR’s life. While rejecting the application, Justice Sanjeev Narula stated that “whether commercial celebrity rights, such as personality or publicity rights, would survive or extinguish after the death of the celebrity, requires a deeper probe.” The courts have adopted a negative approach on the issue of post-mortem privacy. Nevertheless, it is apt to point out that this issue has only been dealt with in a handful of cases so far and the courts have not explained at length as to why the right to privacy cannot exist after the death of a person. Thus, this issue clearly requires larger judicial attention in the future.
 Deepa Jayakumar v. A.L Vijay & Ors., O.S.A No. 75 of 2020.  R.Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264.  Managing Director, Makkal Tholai Thodarpu Kuzhumam Limited v. Mrs.V.Muthulakshmi, 2007 (6) MLJ 1152.  K.S.Puttaswamy and Anr v. Union of India and Ors., 2017 (10) SCC 1.  M/S.Akshaya Creations v. V.Muthulakshmi, C.R.P(PD)Nos.3943 and 3944 of 2012.