Sakina Tashrifwala
Published on: October 16, 2022 at 21:23 IST
The Delhi High Court has declared that the right to privacy is primarily a right in personam and so cannot be inherited by the deceased’s mothers or legal heirs.
The statement was made by Justice Neena Bansal Krishna while declining to grant temporary relief in a complaint brought against Bollywood Filmmaker Hansal Mehta and others for preventing the release of their film ‘Faraaz.’
The film is inspired by the terrorist incident that occurred on July 1, 2016 in Holey Artisan, Dhaka, Bangladesh.
A family that lost two daughters in the incident filed the lawsuit. They were concerned that their daughters would be portrayed negatively, so they requested an injunction in their favour.
The film was accused of violating their rights to privacy and fair trial under Articles 14 and 21 of the Indian Constitution.
Denying the plaintiffs interim relief, the court stated that while the ‘right to be left alone’ is a part of the right to privacy, it “can also operate” within its bounds and cannot be referred to as a right to be left alone, especially as the plaintiffs are barely mentioned in the film.
The plaintiffs have been unable to demonstrate any incidence of “being left alone” since a breach of privacy has not been established, according to the court.
The court determined that preventing the defendants from screening the film after they had spent money preparing it would result in irreparable loss and damage, mainly because the plaintiffs were unable to demonstrate what irreparable loss and injury they suffered as a result of the screening.
“As a result, the plaintiffs have failed to demonstrate any of the three limbs, namely prima facie case, balance of convenience, or irreparable loss or injury, in their favour. As a result, the plaintiffs are not entitled to an injunction. The interim stay order has been lifted,” the court stated this while dismissing an application for an ad interim injunction.
The court remarked that the sphere of privacy extends from one end to those personal things to which a reasonable expression of private may attach, and from the other end to matters of anonymity.
“On the one hand, there is a divide between anonymity and privacy. Anonymity and privacy both prohibit outsiders from having access to personal information, but in opposing ways. Privacy entails concealing information, but anonymity entails concealing what makes something personal,” according to the court.
The court also stated that the right to privacy, as a fundamental human right, is entitled to be protected under common law by injunctive relief.
The right to privacy of the mothers of the two girls killed in the incident was not violated in any way by the film.
“The mother’s/privacy plaintiff’s is not in any way jeopardised, nor is there any affront to their dignity and privacy just because their two daughters were victims of the terror act. The plaintiffs might have been successful if their personal right to privacy had been invaded in any manner by the making of this film, but no such condition has been asserted by the plaintiffs,” according to the court.
It was discovered that claiming that a movie screening would cause pain and unrest was incorrect, especially because the occurrence occurred in 2016 and the movie in question was scheduled to be played in 2022.
“The plaintiffs’ trauma may also be proportionate to their closeness to the incident. The proximity to the incident is an important factor to consider when deciding whether or not to enjoin the screening of the film,” according to the court.
The court also stated that the disclaimer provided by the defendants in the film appears to address the plaintiff’s concerns.
The plaintiffs were assured that the names of the two girls were not used in the film, and that their identities were not revealed in any way.
In this context, the court stated, “Merely because the two girls may be identified from the material already available and the extensive reporting of the incident, would not be a sufficient ground to create fear of a laudatory role given to Faraaz and rise into a higher level of humanity by sacrificing his own life to save the life of the two girls, which is intended to be brought into the public domain.”
Concerning the plaintiffs’ right to a fair trial, the court stated that no explanation was provided as to whose right to a fair trial was asserted or how the movie would affect the right to a fair trial of any of the stakeholders.
While ruling on the issue of defamation and emotional trauma, the court stated that defamation of a deceased person does not give rise to a civil or common law cause of action in favour of the surviving family or relations who are not defamed themselves.
According to the court, “The plaintiff’s defamatory statement must be disseminated. Malicious defamation of a deceased’s memory is condemned as an affront to general sentiments of morality and decency, and the interests of society demand its punishment through the criminal courts;”
“However, the law does not consider the offence as causing any special damage to another individual, even if related to the deceased, and thus it cannot be made the basis for recovery in a civil action.”
It was added, “Where one is expected to stand on his own merits and where success or failure is totally based on the coincidences of position and family connection A slander of such character, no matter how heinous or upsetting, can do no monetary harm.”
As a result, the court noted that, while emotional trauma may be relevant as a component of defamation, it cannot be the sole foundation for establishing a prima facie case in favour of the plaintiffs in the case.
“As previously stated, defamation is a personal right that is not pre-emptive in character. The plaintiffs have been unable to identify whatever component of the film is defamatory without having watched it and without any grounds. Defamation can effectively be claimed only after the film has been released,” according to the court.