The Supreme Court’s Privacy Judgment Elevates Personality Rights to the Constitutional Plane

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In a landmark judgment delivered on August 24, 2017 a bench of 9 judges of the Supreme Court in the case of Justice K. S. Puttaswamy (Retd.) v. Union of India has clarified that all Indians have a fundamental right to privacy under Article 21 of the Constitution. I use the word ‘clarify’ because smaller benches of the Supreme Court have previously proceeded on the assumption that privacy has always been a fundamental right under the Indian Constitution. These judgments were in conflict with a larger bench ruling of the Supreme Court in the case of Kharak Singh v. Union of India (1964), where the court decided that privacy was not a fundamental right under the Constitution. The nine judges have now clarified that privacy is a fundamental right that is subject to reasonable restrictions.

While I am sure much will be written on different aspects of this judgment, I would like to concentrate on one particular aspect of privacy and that is its impact on personality rights of celebrities. Historically in India, celebrities have had a common law right to control the use of their image or personality by any other person. Thus, if a company tries to give an impression that a celebrity has endorsed or associated with a certain brand or product, they could be sued for the tort of passing off by the celebrity if prior permission was not sought. In the last decade, India has seen an explosion of litigation on this issue of celebrity rights, also known as personality rights. We’ve covered several of these cases involving Daler Mehndi, Rajnikanth, Amitabh Bachhan, Sridevi, Sonu Nigam, Cyrus Mistry.

A second line of cases has involved, celebrities invoking the fundamental right to privacy under Article 21 of the Constitution, as articulated by the Supreme Court in the case of Rajagopal v. State of Tamil Nadu (1994). The petitioner in the case was Tamil newsmagazine that intended to publish the revealing autobiography of ‘Auto-Shankar’, a convicted serial killer. The autobiography reportedly had revelations about Auto-Shankar’s connections with senior bureaucrats and the Tamil Nadu government had threatened the publisher with legal action if it proceeded to publish the autobiography. Fearing a raid on its printing press, the editor petitioned the Supreme Court seeking to restrain the Tamil Nadu government. In a landmark judgment, the Supreme Court ruled against the state of Tamil Nadu and reversed the burden of proof for defamation cases filed by public officials. The Supreme Court also for the first time elaborated on the scope of a privacy right and quite surprisingly defined it as a horizontal right i.e. unlike most fundamental right which apply only against the state (because of the state’s ability to curb the freedoms of citizens), a horizontal right applies against both citizens and fellow citizens. Í extract the court’s definition of privacy below:

“The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a “right to be let alone”. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.”

Applying this judgment to the facts, the Rajagopal judgment states “….it must be held that the petitioners have a right to publish, what they allege to be the life story/autobiography of Auto Shankar insofar as it appears from the public records, even without his consent or authorization. But if they go beyond that and publish his life story, they may be invading his right to privacy and will be liable for the consequences in accordance with law….” (para 29)

In other words, anything not on the public record can’t be revealed.

The drawback of such a broad privacy right is that it can have the effect of censoring biographies or biopics that are not authorized by a public figure. To be fair the Rajagopal judgment dilutes the privacy rights for public officials with respect to acts pertaining to their office but this means that public figures and celebrities who are not public officials can still assert their privacy rights. This judgment has been used subsequently by Jayalalitha, Phoolan Devi and Veerappan’s wife to seek injunctions against movies or books based on their lives. Both Jayalalitha and Phoolan Devi were successful, while Veerappan’s wife managed a settlement that required deleting certain scenes.

Thus, the obvious problem with applying privacy horizontally is that it affords public figures a tool of censorship.

Coming to the judgment of the Supreme Court in the case of Justice K. S. Puttaswamy (Retd.) v. Union of India. The court endorsed the definition of privacy as laid down in Rajagopal. In addition, Justice Sanjay Kishan Kaul elevates the issue of personality rights, from its status as a common law right to a constitutional right embraced by the fundamental right to privacy under Article 21 of the Constitution. He states, in pertinent part:

“Every individual should have a right to be able to exercise control over his/her own life and image as portrayed to the world and to control commercial use of his/her identity. This also means that an individual may be permitted to prevent others from using his image, name and other aspects of his/her personal life and identity for commercial purposes without his/her consent”.

“Aside from the economic justifications for such a right, it is also justified as protecting individual autonomy and personal dignity. The right protects an individual’s free, personal conception of the ‘self.’ The right of publicity implicates a person’s interest in autonomous self-definition, which prevents others from interfering with the meanings and values that the public associates with her.”

Given that his discussion is centred on Article 21 of the Constitution, it is reasonable to conclude that he considers this right to personality to be protected under Article 21. Thus  the only logical result of these conclusions is that celebrities now have a fundamental right to their personality and the story of their life and they can enforce such a right against fellow citizens. Theoretically, this would mean that the makers of biographies or biopics will necessarily have to seek permission from a public figure, especially if the venture is a commercial enterprise. Will this open the door to censorship or will lower courts simply ignore Justice Kaul’s statements as obiter?


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6 thoughts on “The Supreme Court’s Privacy Judgment Elevates Personality Rights to the Constitutional Plane”

  1. The notion of a horizontal fundamental right would need to be thought through more carefully than seems (at second hand) to have been the case, though I haven’t personally read the 500-600 page judgement as yet–we may find it as difficult to interpret the prolix judgements of our Courts as they do to interpret the Constitution.

  2. Hi Prashant, certainly an interesting issue. I was wondering if we can see Justice Kaul’s observations as discussing common law privacy protections i.e., saying that the Constitution may *permit* such restrictions to be imposed by common law or legislation (rather than itself creating such restrictions).

    Alternatively, as you suggested, since there is not enough support from the other judges, it can be seen as a non-binding concurrence or perhaps as obiter.

    I’ve discussed some of this here:

    Happy to hear your views.

    1. HI Jaideep,

      Thanks for sharing your piece.

      I’ve written a more detailed piece on the Hoot:

      Maybe we can continue our discussion after you read it. My brief issue on horizontal rights is this – Rajagopal clearly traces the horizontal right to privacy from Article 21. That particular para has been endorsed by 5 judges.

      On this point about ratio and obiter – this judgment is strange in the sense that it was decided without any facts, so I think the only judgment is binding to the extent there are no conflicts. Only Bobde draws the distinction between fundamental right and common law right. So, I would slot him in the minority. Regarding Kaul’s conclusion, we have to accept it as ratio – if the other judges had a problem they would have disagreed with it.

      On the point that only order signed by nine judges is operative – I think that’s going to be a tough argument to make – with 545 pages out there, lower courts are going to presume all 545 pages are binding.


      1. Hi Prashant, thanks for the detailed reply. I’ve finally read your piece. Again, very interesting discussion.

        Re. Justice Kaul’s opinion, we might need more research on whether a single concurring opinion can become ratio if not explicitly disagreed with. Usually, it is the majority view that is binding. Re. your last point, I agree. The view that only the order is binding was made by another commentator and is one that I don’t necessarily agree with.

        Another interesting point to note is that the cases after Rajagopal (Phoolan Devi, Jayalalitha and Veerappan’s wife) are private civil suits. It is almost as though they are enforcing the common law right of privacy against private parties, with the only troubling difference that such right seems to stem from Art. 21.

        It is indeed a muddled position of law at the moment!

        1. Hi Jaideep,

          Kaul’s opinion is in line with the holding in Rajagopal and the opinions by Justices Chandrachud and Nariman clearly approve the relevant paragraphs of Rajagopal which makes privacy a horizontal right. I don’t really buy this argument that only the 2 page order signed by all judges in binding.

          About the civil suit issue – yes, it is strange but is happening more often than we know. I’ve written a bit on this over here:

          I have a feeling that lot of lawyers and judges in India aren’t very aware of the basics of constitutional litigation and how fundamental rights usually apply against the state – hence we see a fair share of poorly argued cases which then, of course, result in poorly reasoned decisions. Very soon, they get the flavour of precedents and the disasters just mount.


  3. Agreed, more than the two page-order will be binding if we can show that a majority subscribe (directly or indirectly) to a given proposition.

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