GANGUBAI KATHIAWADI CASE: ANOTHER CASE ON POSTHUMOUS APPLICATION OF PRIVACY RIGHTS AND DEFAMATION

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In a case filed by Babuji Shah, purported son of Gangubai Kathiawadi seeking injunction against authors of the novel ‘The Mafia Queens of Mumbai’ to restrain them from publishing, selling or creating third party rights on their novel, as well as to injunct Bhansali Productions from producing the film “Gangubai Kathawadi” or airing any promo of the film based on the novel, the Mumbai City Civil Court on February 17, 2021 dismissed the suit and refused to grant any relief to the plaintiff. [Update: Read order here].

The novel ‘Mafia Queens of Mumbai: Stories of women from the ganglands’ is an Indian 2011 non-fiction crime novel written by Hussain Zaidi with original research by reporter Jane Borges. The film ‘Gangubai Kathiawadi’ starring Alia Bhatt, directed by Sanjay Leela Bhansali and produced by Bhansali Productions and Pen India Limited is an upcoming Indian Hindi-language biographical crime film based on a chapter about Gangubai Kothewali from the novel.

Gangubai Kothewali was sold into prostitution at an early age by her male suitor, Ramnik Lal, after running away from home to Mumbai. She came to be known as the Madam of Kamathipura running several brothels in Mumbai. She was also known to fight for the rights of sex workers.

In the case filed before Mumbai City Civil Court, Babuji Shah – who claims to be the legal heir of Gangubai Kathiawadi claimed that the chapters on Kathiawadi in the novel were defamatory, tarnished her reputation and infringed upon the right to privacy and self-respect of his purported deceased mother. Further that the authors of the novel did not seek his permission nor sought any information from him or other family members.

As per reports, an application was filed by the producers of the film for rejection of the plaint, inter alia, on the ground that the suit is barred by limitation since the novel was published in 2011. Further that the Plaintiff had failed to substantiate his claim that he is the adopted son of Gangubai Kathiawadi or array other family members he which he claimed were wronged by the book, thereby Plaintiff not being able to establish his locus standi.

It would be relevant to highlight that in the case of Khushwant Singh and Anr. Vs. Maneka Gandhi [AIR2002Delhi58], Maneka Gandhi had filed a suit for injunction against the autobiography of Khushwant Singh titled ‘Truth, Love and a Little Malice’ claiming that certain extracts therein concerning her were derogatory and defamatory. In an appeal filed by Khushwant Singh against an ex-parte injunction passed by the single bench, the division bench of the Delhi High Court took into account that the portions which Maneka Gandhi had an issue with were matters of public knowledge and had been in public domain for several years to which she had at no stage raised any objections or initiated any proceedings when those publications were brought out and by her silence had acquiesced and accepted the same. The Court had thus refused injunction and stated that Maneka Gandhi would have a right to claim damages in the tort for breach of privacy or defamation.

In addition to the technical grounds taken in the application filed by the Producers (in the instant case )for rejection of the plaint, if one is to apply the principles laid down in the Khushwant Singh case, the court has rightly rejected the injunction plea filed by Babuji Shah, given that the book ‘The Mafia Queens of Mumbai’ has been published for almost a decade without there being any action taken against it. Further, the story of the life of Gangubai has been widely reported and in public domain without there being any action taken in relation to the same.

This case is yet another instance where legal heirs have gone after film makers on grounds of defamation and breach of privacy of the deceased.

Let’s take a look at few such other cases where legal heirs have filed such cases:

  • Content: Thalaivi/ Queen
  • Case Details:  Deepa Jayakumar v/s A.L. Vijay & Others (O.A. No. 1102 of 2019 in C.S. No. 697 of 2019)
  • Madras High Court
  • Read order here
  • This case was covered here by us.
  • Facts: This case was filed by Deepa Jayakumar, the niece of former chief minister of Tamil Nadu Dr. J. Jayalalitaa, before the Madras High Court, seeking a stay on two in-production projects, allegedly based on the former Tamil Nadu Chief Minister’s life –a film “Thalaivi” and a web series “Queen”  An application was filed by the Plaintiff for an interim injunction to restrain the respondents from, directly or indirectly, releasing, publishing or exhibiting a film, drama, serial, tele-serial, web serial, etc. in respect of the life of the late Dr. J.Jayalalithaa, and/or that of her family and their direct descendants without the consent of the Applicant/Plaintiff pending disposal of the suit.
  • Ratio:  The Madras High Court held that the directors of the film had acquired the adaptation rights of the book ‘Thalaivi’ and submitted that the proposed film would not cast a stigma on the Applicant and that she would not be depicted in a single scene in the film, as far as the privacy rights of the Applicant per se are addressed. Release of the film would be subject to certification of CBFC wherein CBFC will be following due process of law and raise objections on any objectionable content. As regards personality rights, the court noted that even on a prima facie basis, it is difficult to accept that the Applicant/Plaintiff has inherited the personality rights of her aunt. The question as to whether such rights are capable of being inherited would have to await trial and final disposal. The question as to whether the Applicant is entitled to restrain the public exhibition of the web series in exercise of the posthumous right of privacy remains to be considered. However, the Court was of the view that the web series should not infringe the privacy of the Applicant (i.e. by demarcating and differentiating it from the assertion of posthumous rights) pending determination of the suit. Subject to the rider as regards the privacy rights of the Plaintiff, the court found the balance of convenience in favour of the respondents. The Court further asked the Respondent to adhere to the commitment of providing a disclaimer that it is a work of fiction and that resemblance to real persons is coincidental and not intentional and also ensure that no character closely resembling the Applicant is depicted in the web series pending adjudication of the suit.
  • Content: Kamaraj
  • Case Details: A.Balakrishnan Vs. R.Kanakavel Kamaraj, 1999 SCC Online Mad 563
  • Madras High Court
  • Read order here
  • Facts: The legal heir and grandson of Perunthalaivar Kamaraj of Mr. K. Kamaraj, a national leader, filed a suit for permanent injunction restraining A. Balakrishnan from producing TV Film or Video film or regular movie in any language without the consent and knowledge of the plaintiff in any manner and in any capacity whatsoever about late Kamaraj.
  • Ratio: The Court held that the makers of the film cannot be restrained since the history of a National Leader is not an asset which could be inherited by any person, nor can the plaintiff say that what late Kamaraj did for the nation was for himself or that he is the sole beneficiary. The Court held that since the makers of the film had a definite case that the film or televising a serial is based on various reports which were already published in journals, weeklies and newspapers, and since legal heir had no case that these publications have affected the reputation of the family of the great leader till date, the makers of the film cannot be restrained.
  • Content: Bhagat Singh
  • Case Details: Paramjit Kaur and Ors. v Union of India (UOI) and Ors, Civil Writ Petition No. 8820 of 2002
  • Punjab & Haryana High Court
  • Read order here
  • Facts: The Petitioners were the relatives of martyr Bhagat Singh. They filed a petition to stop the screening of the film allegedly containing distorted versions of the life of Bhagat Singh. They further sought a stay on all the new films which were to be released based on the life of Bhagat Singh during the pendency of the petition. The alleged distortions, like a heroine being shown as Bhagat Singh’s fiancée, showing him as a turbaned Sikh, etc., were observed from the promotional campaigns of the films and various media reports.
  • Ratio: The court dismissed the petition stating that film was certified by the CBFC, which consisted of historical experts and the objectionable scenes found in the films were already censored. The court observed that the distortions claimed by the Petitioners were based on the excerpts from various sources. The court held that, “The profit making or at least running the films without any loss, has to be the natural aim of story writers, producers or directors in making the films for public viewing and if while keeping intact the basic character of National Hero, some glamourisation or addition to the main events, which may not be derogatory or offending as such has been made, nothing wrong can be found with the same.”
  • Content: Mangal Pandey: The Rising
  • Case Details: Raghu Nath Pandey And Anr. Vs Bobby Bedi And Ors. CS (OS) No.1212 of 2005
  • Delhi High Court
  • Read order here
  • Facts: The Appellants-Plaintiffs, descendants of Mangal Pandey family, filed a suit for civil defamation in respect of movie, Mangal Pandey -The Rising, alleging that the Respondents-Defendants had defamed and mutilated the character for commercial purposes. The Appellants-Plaintiffs alleged that the character of Mangal Pandey was distorted and falsely depicted with the introduction of some of the characters and scenes in the film and association of Mangal Pandey with them which had brought both Mangal Pandey and his entire family to disrepute. The Appellants-Plaintiffs sought for the deletion of those portions which were not in conformity with Mangal Pandey’s character.
  • Ratio: The court observed that the scenes to which the Appellants-Plaintiffs objected to were to be judged from morality and obscenity point of view and held that there was nothing objectionable in the same. The court held that the grievance of the Appellants-Plaintiffs could be addressed by giving the following statement/announcement at the end of the movie in English as well as in Hindi: “The character of Heera is fictionalised. There was no such Heera in the life of Mangal Pandey. Mangal Pandey died a bachelor.
  • Content: Once Upon A Time In Mumbai
  • Case Details: Bharatiya Minorities Suraksha Mahasangh & anr v Balaji Motion Pictures & ors, Appeal from Order No. 813 of 2010 with Civil Application No. 1015 of 2010
  • Bombay High Court
  • Read order here.
  • Facts: An appeal was filed against the judgment of the city civil court in the Bombay High Court by Haji Mastan’s adoptive son Sundar Shekhar, who had filed a suit seeking permanent injunction against the release film ‘Once Upon A Time In Mumbai’ and a preview screening.
  • Ratio: The court disposed of the application and allowed the release of the film on the ground that the producers of the film give a disclaimer in the beginning of the film that this film has absolutely no resemblance with the life of the late Haji Mastan Mirza. In addition, the Respondents agreed to issue press release stating: “It is denied that the film Once Upon A Time in Mumbai-When It All Started, is based on the life of the late Mr. Haji Mastan Mirza. The Respondents have never represented before anyone including the press that the film is based on the life of the late Mr.Haji Mastan Mirza. This film is purely a work of fiction and the characters in the film are fictional and do not represent any individual, whether living or dead.”
  • Content: The Dirty Picture
  • Case Details: Vadlapadla Naga Vara Prasad v Chairperson, Central Board of Film Certification, Bharat Bhavan, Mumbai and seven others, Writ Petition No. 30376 of 2011
  • High Court of Andhra Pradesh
  • Read order here.
  • Facts: The Petitioner, who is the brother of the deceased south Indian actress Vadapatla Vijaya Lakshmi (aka Silk Smitha), filed a writ petition on the grounds that the film, The Dirty Picture, portrays his sister in a defamatory and obscene manner. The Petitioner had learned through television and newspapers about a film, The Dirty Picture, being made on his sister.
  • Ratio: The Court observed that the said film was not a biopic or a fictional representation of the life of the Petitioner’s sister and therefore there is no violation of any right of privacy or reputation of the deceased actress or her family including the Petitioner. The Court held, “Newspapers and other sources were not valid and further held that anybody is allowed to make a movie on the life-story of a person relying on facts which appear in the public records, even without his consent or authorization. But if they go beyond that then they may be invading his right to privacy and will be liable for the consequences in accordance with law.” The Court observed that at that time as the film was yet to be released the allegation relating to defamation was to be viewed from the Respondents stand that the said film was only a work of fiction and also carries a specific disclaimer to the effect that the said film was a work of fiction and that all characters are fictitious and any resemblance to real persons living or dead would be purely co incidental. The Court, therefore, dismissed the petition.
  • Content: Veerappan
  • Case Details: Akshaya Creations vs V.Muthulakshmi; C.R.P(PD)Nos.3943 and 3944 of 2012)
  • High Court of Madras
  • Read order here.
  • Facts: This suit was filed by the wife of Veerappam for the relief of injunction, restraining the defendants from in any manner, exhibiting, releasing or exploiting the film named Vana Udham” in Tamil and “Attakasa” in Kannada or in any other name, in any other language, portraying the life of the wife and her husband, late Veerappan, in any form, whatsoever. It was submitted by the defendants that the film was taken on the basis of the public records, viz., various FIRs filed against the late Veerappan, the late husband of the first respondent and no scene in the picture was without any basis and every scene is based on the FIR and other public records.
  • Ratio: The movie was allowed to release except the scenes relating to the marriage of Muthulakshmi with Veerappan and her escape from the task force and her arrest by the Police.
  • Content: Hawaizaada
  • Case Details: Ajit Pramod Talpade and Ors. Vs Rajesh Banga and Ors., Writ Petition (L) NO.199 OF 2015
  • Bombay High Court
  • Read order here.
  • Facts: The Petitioners sought an order directing the respondents not to release the film Hawaizaadaon the ground that the movie is based and inspired by the real life story of Pandit Shivkar Bapuji Talpade and that the movie depicts the said Pandit Shivkar Bapuji Talpade in rampant style and a strong impression is created of the said person.
  • Ratio: The Bombay High Court dismissed the petition after taking into consideration the fact that disclaimer was being shown in the film due to which the grievance of the petitioners appeared to be misconceived. The disclaimer read as under:- “While suggested by actual events, this motion picture is in its entirety a work of fiction. Some character names have been invented, some character names have been composited or invented and some incidents have been fictionalised”. The Court held that since the film is a work of fiction, the apprehension expressed by the petitioners in this petition is totally misconceived. The Court however observed that the petitioners had alternative remedy of filing a suit for defamation.
  • Content: 72 Hours – Martyr Who Never Died – based on Jaswant Singh Rawat, a 1962 Sino-India war martyr
  • Case Details: Vijay Singh Rawat v Sandhya Entertainment and Ors; Citation:  (W.P.(C) 1317/2018 & CM Nos.5512 & 5513/2018
  • Delhi High Court
  • Covered here.
  • Facts: The brother of Jaswant Singh Rawat, a 1962 Sino-India war martyr, moved the court against the releasing of the film 72 Hours – Martyr Who Never Died”, a biopic on Jaswant Singh Rawat, claiming copyright violation and breach of Jaswant Singh Rawat and his family’s privacy. Besides, he also sought royalty from the producers of the film, and demanded that the actor playing Rawat’s role be changed, since the actor was accused in a rape case.
  • Ratio: The Delhi High Court allowed the release of the film and said that there were no reasons to interdict the release of the film as the family members could not claim breach of their privacy as they had consented to the making of the film and to the role being played by the actor in 2015.

It has been contended in several cases that since defamation is a personal wrong,  the legal right does not survive and is not actionable after the death of the person in view of principle laid down in the maxim ‘actio personalist monitor cum persona’.

In M.P.Raju and others Vs. T.G.Chacko and others, 2005 SCC Online 430, the Kerala High Court observed “Defamation is actionable both under the civil law and under the criminal law. The expression “person” appearing in the body of Sec.499 of the IPC would not normally cover a deceased person and that obviously is why Explanation-1 has been added to the Section. A claim for compensation for defamation under the civil law may not be maintainable in respect of defamation of a deceased person on the principle that a personal right of action dies with the person. (Action Personalis Moritor Com Persona). But still the law makers felt that defamation of a deceased person can legitimately give rise to a criminal prosecution for the offence of defamation against a deceased person. It is easy to understand the rationale behind the law. Defamation is made punishable as a crime only because of the potential of such offence to endanger law and order. The criminal law endeavours to maintain peace, tranquility, law and order in society and anything which is likely to threaten them and result in breach of peace is made actionable under the criminal law. This rationale underlies Explanation-1 of Sec.499 IPC also. Any person may get triggered to commit offences and thus cause breach of the peace if a deceased member of his family or other near relative of his were defamed. Accepting this reality in life, Explanation-1 has been added to Sec.499 IPC to ensure that defamation of a deceased person is also culpable. But the law is very careful. The offending publication should not only be defamatory to the deceased. It must also be intended to be hurtful to the feelings of his family or other near relative, it is stipulated. Every lineal descendant or every person interested in the deceased cannot complain of defamation against the deceased. Firstly, such complainant must be a member of the family of the deceased or must be a near relative of his. The words “family or other near relative” significantly are not defined in Sec.499 IPC. Such expressions are not defined in the Indian Penal Code. The expressions “family” and “other relative” are expressions which can have different shades of meaning depending on the circumstances and the purpose which a statutory provision is intended to achieve. Any attempt to understand the sweep, width and amplitude of the expressions “family or other near relative” must certainly be made conscious of the purpose which Sec.499 IPC and Explanation-1 thereto have got to achieve. Prevention of breach of peace is the signature tune underlying the law of crimes. It is the same when it concerns Sec.499 and Explanation-1 thereto. The members of the family are assumed to be near relatives going by the language in Explanation-I. It is, however, stipulated that there can be other near relatives also. It is not every one who can complain of the defamatory imputations made against the deceased. A smaller group or class of persons are specified. By nature of their relationship with the deceased or by their peculiar proximity to the deceased certain persons may be triggered to threaten law and order when a deceased person is defamed. The law assumes that members of the family may be so triggered. It is not every distant member of the family who can justify such improper triggering. They must be sufficiently close and proximate to the deceased. This is the statutory rationale underlying Sec.499 of the IPC and Explanation-1. Therefore, according to me, the expressions “family or other near relative” must receive a stricter and narrower construction. Judicial interpretation of the expressions ‘family’ or ‘other near relative’ in other statutes or in different contexts may not be of crucial assistance. The meaning that is to be assigned in the given context is important. One must hence remember the purpose – abating any threat or danger to peace and tranquility in the society on the apprehension that a person other than the deceased may be triggered to commit breach of the peace, in mind while ascertaining the sweep of the expressions. The family in the Indian context, generally stated, may include a large number of persons. The understanding of the concept may also have to be in the background of the given social realities and norms prevailing in the society. Community of interests as members of the family may have to be taken into account. In these circumstances, I am satisfied that the expression ‘family’ can be understood to mean only the nuclear family namely, husband, wife and children. Any attempt to widen the scope of the expression ‘family’ would not be conducive to the purpose which Sec.499 and Explanation-1 are expected to serve. I find no precedents on the point. The learned counsel for the rival contestants are unable to place before me any binding or persuasive judicial thought on the subject. So, construing from first principles, I take the view that a limited narrow circumference has to be fixed for the expression ‘family’ and I reckon the expression ‘family’ to include only husband, wife and children.”

Since the current case involved a civil suit for defamation of the deceased, one could argue that the principle of ‘actio personalist monitor cum persona’ applies and the action on defamation is not maintainable.

The Supreme Court of India in Justice K.S Puttaswamy (Retd.) v. Union of India and Ors (WP (C) 494/2012) was of the view that right to privacy is a pre- constitutional right, which has been preserved and recognized by the Constitution of India, not created by it. This right provide individuals with the ability to command control over various aspects of their personal life for the purpose of not only controlling the manner in which these aspects are portrayed to the world at large but also controlling the commercialization of one’s identity. The right to privacy also necessarily includes the right to prevent others from using his/her image, name and other aspects of his/her personal life and identity for commercial purposes without his/her consent. 

The Veerappan case touched upon the issue and held that the right to privacy of Veerappan did not subsist post his death subject to the undertaking that right the right to privacy of his wife and daughter would in no way be affected. However, the issue of whether right to privacy can be posthumously applied to legal heirs in such a case as this yet to be properly tested by the courts and probably the Deepa Jayakumar v/s A.L. Vijay & Others once decided would lay the jurisprudence on the issue.

Another relevant issue which does not seem to have been prayed for in this litigation is on publicity rights. There are several jurisdictions which recognize post martem publicity rights though there is no specific law in India recognizing post martem publicity rights and its inheritance. However, the jurisprudence on this subject is still at a nascent stage in India. With rising number of audio visual content across the globe based on real life incidents and people, the issue of publicity rights and its succession are bound to increase.

[Interesting read : here].

Image source: here

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