Posthumous Publicity Rights: The Haq Decision And Beyond

The recent decision of the Madhya Pradesh High Court upholding the release of the film Haq has brought back attention to one of the most unsettled questions in Indian private law, do personality or publicity rights survive the death of an individual and if so to what extent can heirs restrain creative works that draw inspiration from the life of a deceased public figure? The judgment finds itself at the intersection of privacy, personality rights, defamation and the constitutional guarantee of freedom of speech and expression while implicitly questioning whether Indian regime recognises any form of posthumous proprietary control over fame.

The dispute arose from objections raised by the legal heirs of a deceased individual who claimed that the film Haq was based on the life and experiences of the deceased and that its release would violate posthumous personality rights, dignity and privacy. The petitioners sought injunctive relief restraining the exhibition of the film contending that the depiction amounted to unauthorised commercial exploitation and misrepresentation. The filmmakers on the other hand argued that the film was a work of fiction inspired by real events at a broad level protected by Article 19(1)(a) of the Constitution and not actionable in the absence of a recognised posthumous right to personality in Indian law.

Constitutional Purview

At the outset, it is necessary to situate personality and publicity rights within the broader constitutional framework. Indian courts have consistently traced personality rights to Article 21 of the Constitution which guarantees the right to life and personal liberty. In Justice K.S. Puttaswamy v. Union of India¹, the Supreme Court recognised privacy as an intrinsic part of dignity, autonomy and personhood. Building on this foundation, courts have acknowledged that individuals have a right to control the commercial use of their name, likeness, voice or persona, particularly to prevent false endorsements or misappropriation. This recognition however, has developed primarily through judge-made law often borrowing from common law principles and comparative jurisprudence.

The Delhi High Court's decision in ICC Development (International) Ltd. v. Arvee Enterprises² is often cited as an early articulation of publicity rights in India. The Court held that the right of publicity has evolved from the right of privacy and can inhere only in an individual or in any indicia of an individual's personality. Importantly, the Court emphasised that the right is not absolute and must be balanced against freedom of expression particularly in news reporting and creative works. Subsequent decisions, such as DM Entertainment Pvt. Ltd. v. Baby Gift House³ reinforced the idea that unauthorised commercial exploitation of a celebrity's persona could be restrained where it amounted to passing off or false association.

Limits of Legal Protection

So far these cases dealt with living personalities. The more complex question arises when heirs seek to assert control after death. Indian courts have not recognised a general, inheritable right of publicity akin to property rights in the estate of the deceased. Instead, courts have tended to distinguish between defamation of the dead which is largely non-actionable under Indian law and injury to the feelings or reputation of surviving relatives which may be actionable in limited circumstances.

This distinction finds statutory reflection in the Indian Penal Code, 1860. Section 499 which defines defamation, Explanation 1 clarifies that defamation of a deceased person is actionable only if the imputation would have harmed the reputation of that person if living and is intended to hurt the feelings of his or her family or near relatives. Even this provision is criminal in nature and does not create a civil proprietary right in the persona of the deceased. Civil remedies for defamation of the dead remain narrow and derivative focusing on harm to the living rather than reputational injury to the deceased as an independent legal subject.

Fiction and Inspiration

The judgement also implicitly addresses the issue of fictionalisation. Indian courts have generally recognised that works of fiction inspired by real events enjoy a degree of creative latitude. In R. Rajagopal v. State of Tamil Nadu⁴, the Supreme Court held that the right to privacy does not prohibit publication of matters forming part of public records or public conduct, even if embarrassing. While R. Rajagopal concerned a living individual, its logic extends to creative works that draw from public facts without making false assertions presented as fact. The Haq decision underscores that merely alleging resemblance or inspiration is insufficient to establish a legal bar on expression.

That said, the Court did not suggest that filmmakers enjoy absolute immunity. It left open the possibility that if a work contains demonstrably false statements presented as factual assertions, or if it deliberately maligns the reputation of a deceased person in a manner that causes actionable harm to living relatives, remedies may be available. What the Court rejected was the idea of a broad, inheritable personality right that could be invoked to prevent release itself.

Absence of Statutory Framework

From a policy perspective, the judgment highlights a fundamental tension. On one hand, there is a legitimate interest in preventing exploitation, distortion or sensationalisation of a deceased person's life particularly where the portrayal may affect the dignity of surviving family members. On the other hand, recognising strong posthumous personality rights risks chilling creative expression, historical inquiry and artistic engagement with real events. In a society where cinema, literature and digital media play a central role in public discourse, the balance must tilt carefully towards openness subject to narrowly defined exceptions.

The absence of a statutory framework governing posthumous publicity rights in India is significant. Unlike jurisdictions that have enacted specific legislation defining the scope, duration and exceptions to such rights, Indian law relies on constitutional principles and common law reasoning. Courts have therefore been cautious, preferring incremental development over expansive recognition. The Haq decision reinforces this cautious approach, signalling that any move towards recognising descendible personality rights must come from Parliament rather than judicial innovation.

Conclusion

The Madhya Pradesh High Court's refusal to restrain the release of Haq reflects a principled commitment to constitutional values and doctrinal coherence. By reaffirming that personality rights are personal, time-bound, and subject to the primacy of free expression, the Court has clarified an important aspect of Indian law that will continue to shape disputes at the intersection of fame, memory, and creative freedom. Whether India will, in the future, move towards statutory recognition of posthumous publicity rights remains an open question. For now, Haq stands as a reminder that in Indian law, fame does not easily translate into inheritable control.

Footnotes

1. (2017) 10 SCC 1

2. 2003 (26) PTC 245 (Del)

3. 2010 (42) PTC 626 (Del)

4. (1994) 6 SCC 632

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