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 publication.
Inthis case, [Selvi. J. Jayalalithaa vs. 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 privacy.
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.
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