Privacy, defamation and stigma

Courts need to balance the right to privacy of the deceased’s family and freedom of expression of moviemakers

A two-judge bench of the Telangana High Court recently granted permission for the release of the movie ‘Murder’, being produced by director Ram Gopal Varma (RGV). The movie allegedly is based on the ‘honour killing’ of a young man, who married an upper-caste girl, reportedly by the goons hired by the girl’s father, in Miryalaguda town in 2018. The father reportedly committed suicide thereafter. This film allegedly depicts the girl’s love marriage, killing of her husband and her father’s suicide.

RGV is also releasing a movie on the brutal gang-rape and murder of Disha, a veterinary doctor, in November 2019 and the death of the four accused in an alleged police encounter. He informed a TV channel that the movies ‘Murder’ and ‘Disha Encounter’ will be released in December. As regards ‘Murder’, the young widow first approached a civil court and obtained an interim injunction, restraining RGV from releasing, publishing, exhibiting publicly or privately, selling, promoting, advertising or recreating it in the forms of drama or serial or any other literary or artistic expression in respect of Pranay (her slain husband), particularly, the proposed motion picture in the name of ‘Murder’ made on her life, till the disposal of the suit.

She contended that the movie violates her and her family’s privacy and reputation. The high court, which heard the appeal filed by RGV against the lower court order, while allowing the release of the movie, relied upon the judgment of the Supreme Court in ‘R Rajagopal v State of TN’ (1994), wherein the SC held that although “right to privacy” has to be assured, the publication can be allowed if the work is based upon “public records”. In this case, the HC observed that the life of the woman and his family is now in public as the FIR was filed before the police by the deceased’s wife, and that there was wide coverage in the media.

Judging it Right

Did the Telangana HC apply the law properly while allowing the release of the movie? Firstly, the Supreme Court’s judgement in the ‘R Rajagopal’ case, relied upon by the HC, can be distinguished on facts because in that case the SC dealt with the publication of a life-story of a jail convict in a weekly magazine, whereas this case relates to the release of a movie in theatres, that too of a woman and her deceased husband who was a victim of ‘honour killing’. In ‘KA Abbas v Union of India’ (1970), the SC rightly observed that “motion pictures must be regarded differently from other forms of speech and expression. A person reading a book or other writing or hearing a speech or viewing a painting or sculpture is not so deeply stirred as by seeing a motion picture”.

Secondly, in the ‘R Rajagopal’ case itself, the Supreme Court observed that “the right to privacy in any event will necessarily have to go through a process of case-by-case development”. It means that based on facts of each case, “right to privacy” has to be decided. In this case, the issue directly relates to the private married life of a woman. The Central Board of Film Certification is required to ensure that the medium of film remains responsible and sensitive to societal values.

Thirdly, the HC failed to consider the reputation of the woman and her family, because “right to reputation” is a fundamental right flowing from Article 21. The SC in ‘Vishwanath Agrawal v Sarla Vishwanath Agrawal’ (2012) observed that “reputation is not only the salt of life, but also the purest treasure and the most precious perfume of life”. The woman and her family have to live their entire life in society, hence, depiction of their private life in public against their will clearly violates their “right to reputation”.

Finally, the HC’s permission for the release of the movie on the grounds that the incident became part of “public record” is untenable, because, by default, if any crime occurs, the victim has to lodge a police complaint. Of course, police records form part of public records but that does not mean it permits anyone to release a movie from such records. This kind of interpretation by the court will have far-reaching consequences in violation of privacy and abuse of women. It is exactly to stop these abuses on women that Section 228A of the Indian Penal Code, 1860, prohibits the disclosure of the identity of rape victims. And the HC cannot say that just because the incident was hyped by the media, it became public record, because such interpretation will lead to encouragement of “media trial”.

Privacy and Reputation

There is right to privacy and reputation of the deceased’s family on the one hand, and on the other, there is freedom of expression of the movie presenters. The courts have to balance these rights based on peculiar facts of each case. While allowing movies on real-life incidents of living persons against their will, due care has to be taken by courts because movies have a high degree of attention and retention as compared with printed words. The courts also ought to caution themselves that “right to freedom of expression” does not go to the extent of depicting one individual’s life in the public, against her/his will, just because they form part of “public record”, even if the person is a dreaded criminal. This is because reputation of an individual is sacrosanct to herself/himself.

As ‘honour killings’ are on the rise, it is pertinent to refer to the apex court’s decision in ‘Shafin Jahan v Asokan KM’, (2018) which unequivocally declared that “right to marry a person of one’s own choice is an integral part of Article 21 of the Constitution”. The third estate of democracy, ie, the judiciary and the fourth estate, ie, the press and the media are expected to be more sensitive to the need to protect privacy and reputation of citizens. Samuel D Warren and Louis D Brandeis in their thought-provoking article published in 1890 wondered: “Common law has always recognised a man’s house as his castle, impregnable, often, even to its own officers….Shall the courts close the front entrance to constituted authority, open wide the back door to idle or prurient curiosity?”

(Dr GB Reddy is Professor, University College of Law, Osmania University, Baglekar Akash Kumar is a student at the college)

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