India, being the world's largest democracy, is also perhaps
one of the richest cultures where literature, fine arts and the
performing arts have had great prominence since time immemorial.
While enjoying creative freedom, the law of the land has time and
again also taken steps to measure and mend any damage that has or
is likely to be caused through works, likely to hurt sentiments of
its people. The 1988 ban of Salman Rushdie's The Satanic
Verses, might be the most famous example of censorship in
India, but there are many other freshly brewed instances of
contemporary India too.
The most recent of Court deliberations, was with regard to the
biography of Tamil Nadu CM, Jayalalitha called Jayalalitha: A
Portrait. Upon the publication of an excerpt in the Outlook,
Jayalalitha moved to Court to acquire an injunction against its
Inthis case, [Selvi. J.
Jayalalithaavs.Penguin Books India (O.A.No .417
of 2011 and Application No.2570 of 2011 in C.S.No.326 of 2011],
Jayalalitha found that her upcoming biography would show unverified
facts, pretentious and false particulars and comprised of malicious
content. She alleged that publication of such content would invade
her right of privacy granted under Article 21 of the Constitution
of India. She further averred that such publication may amount to
her defamation by entering into the private matters without consent
her and verification. The Publishers however contended that the
book was only an assembly of facts, which were already available in
the public domain and that by recapitulating those facts in the
form of a book, the compilation would not amount to invasion of
The court reciting the principles laid down in Phoolan
Devi's case, stated that "the publications
concerning the citizen's own life, his family, marriage,
procreation, motherhood, child-bearing and education among other
matters become unobjectionable, if such publication is based upon
public records including court records, which excludes the news
items in newspaper and articles in magazines". In this
view, the court appears to clarify that information culled out from
the magazines and other journals or memoirs cannot be taken as a
credible and authentic source of information to publish against any
personality. The Court also found that the information acquired
from apparently "close" associates of Jayalalitha were
not supported by affidavits and therefore, reasonable verification
could not have been said as done, in accordance with the principles
laid down by the Hon'ble Apex Court. The Court found that the
excerpts themselves were derogatory in nature and could not be used
as part of a biography.
The court recognizing the right of freedom and expression
available under Article 19 of the Constitution of India to the
author, cautioned that such a right should always be exercised very
carefully, balancing the right of privacy guaranteed to any
individual under Article 21. The Court observed that constitutional
recognition given to the right to privacy protects personal life
and privacy against unlawful invasion whether it is laudatory or
critical without his or her consent. In recognition of the required
balance, the Court passed an ad-interim injunction order.
While the Court's decision here seems to have safeguarded
the "right of consent" and "right to privacy"
of famous subjects of these books, the issue of free speech in
matters surrounding public personalities, still appears to take a
restrained approach. Further, the Court elaborating on the balance
between the two rights, stated that there is no doubt that there
are competing interests to be balanced, that of the author to write
and publish and the right of an individual against invasion of
privacy and threat of defamation. However, the court viewed that in
the current circumstances, the prima facie balance lay in favour of
protecting the right to privacy.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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