'Posthumous privacy not permissible': HC quashes plea against films on Sushant

The Delhi High Court on Thursday declined to stay the release of movie "Nyay: The Justice", purportedly based on the life of late Bollywood actor Sushant Singh Rajput, and scheduled for release on Friday.

A bench of Justice Sanjeev Narula dismissed an application filed by Sushant's father, Krishna Kishore Singh, against the movie and other ventures using his son's name or likeness in the form of a biopic or story.

The court noted the right to privacy has also been invoked not just of the deceased but also of his family. Rajput's father had claimed the deceased celebrity has a posthumous publicity right.

It said that there was no doubt that a limited class of celebrity rights are protected as intellectual property rights under applicable laws, are assignable and licensable under such statutes, and could survive the death of the celebrity, but privacy was not among them.

"Since it is inextricably interlinked to and birthed from the right of privacy, the court prima facie finds merit in the submission of the defendants that the posthumous privacy right is not permissible," said the court.

It held that the right of privacy of an individual cannot be inherited after his death by his legal heirs and that personality right, reputation or privacy enjoyed by a person during his lifetime, come to an end after his lifetime

The court observed the events that form the subject matter of the film are in the public sphere, and it does not find any justification to restrain publication of work claiming to be fictional, which draws inspiration from such events.

"Since the defendants' films are neither portrayed as a biopic, nor a factual narration of what transpired in the life of SSR and are depicted to be complete fictional and inspired from certain events which have occurred in the past and have been widely discussed and are available in public domain, the Court finds no reason to grant a restraining order," said the court.

According to Singh's plea, some of the upcoming or proposed movie projects based on his son's life are -- "Nyay: The Justice", "Suicide or Murder", "A star was lost", "Shashank" and an unnamed crowd-funded film, and expressed apprehension that various plays, movies, web-series, books, interviews or other material may be published which would harm the reputation of his son and his family.

The court noted that the suit was filed close to the release of the film, after substantial time, money and effort have been expended by movie makers on production and promotion. "For this reason, the balance of convenience lies entirely in favour of the defendants," it said.

Rajput's father, represented through senior advocate Vikas Singh and advocate Varun Singh, contended the filmmakers are taking advantage of the situation for commercial gains and therefore, the right to freedom of speech and expression would not apply to them.

The court, however, observed the fictional rendition for dramatic representation based on certain events falls within the scope of artistic freedom of expression and speech.

As long as the name was not used and a disclaimer was published along with the movie, the filmmakers cannot be disallowed from making a movie based on such events it said.

Vikas Singh had fleetingly argued that the right of free speech, in matters of news reporting, does not enjoy the same protection when it comes to matters of commercial exploitation.

But the court said: "The argument is misconceived, and one cannot read this classification of core and non-core rights under Article 19(1) (a) of the Constitution of India. The protection and guarantee provided by the Constitution would apply with equal rigour, even if the publication leads to commercial gain."

As the suit filed by Rajput's father sought damages of over Rs 2 crore from the filmmakers for "loss of reputation, mental trauma and harassment" to Rajput's family, the court said that without knowing the contents of the film and only by relying on some news articles, the plaintiff cannot argue that the depiction in the films is intended to tarnish.

Senior advocate Chander Lall, representing the director of "Nyay...", opposed the plea and argued that Rajput's caricature, name or likeness has not been used in the film.

Actor Sushant Singh Rajput was found hanging in his Bandra apartment under mysterious circumstances on June 14, 2020.

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