New Delhi: The upcoming Yami Gautam Dhar and Emraan Hashmi-starrer Haq, slated for release Friday, has reignited the debate on a complex and still-developing legal issue: whether the dead have the right to privacy, and if such a right can be violated after death.
The matter is now being litigated before the Madhya Pradesh High Court, even as various courts have held in previous cases that there exists no right to privacy or personality after the death of an individual.
Haq is said to be inspired by the landmark 1985 case of Shah Bano, a divorced Muslim woman who had won a legal battle for maintenance in the Supreme Court.
Siddiqua Begum Khan, daughter of the late Shah Bano, has approached the HC claiming that the movie violates her mother’s right to privacy and distorts her public image and must not be released. The film affects the personality rights of her mother and depicts her in a derogatory manner, she has argued.
Advocate Tousif Warsi, appearing for Bano’s daughter, reportedly told the court that the producers cannot escape liability merely by changing character names.
“The right of privacy applies to the present petitioner under the Puttaswamy judgment. It becomes their responsibility to demonstrate the identity in a proper manner… there is a restriction under Article 19(2); they cannot harm my reputation, my family’s reputation,” Warsi argued in court Tuesday. Article 19(2) of the Constitution allows “reasonable restrictions” on the fundamental right to freedom of speech and expression.
The producers, for their part, have maintained that the movie draws from the Supreme Court judgment of 1985 in the Shah Bano case and Jigna Vora’s book Bharat Ki Beti.
Also Read: From Shah Bano to marriage laws: What SC said about maintenance for Muslim women
The Shah Bano case
In 1985, Shah Bano, a 62-year-old Muslim woman from Indore, sought maintenance from her husband, who had divorced her through triple talaq. The Supreme Court, in a landmark verdict, ruled in her favour under Section 125 of the Code of Criminal Procedure.
The court ruled that a divorced Muslim woman was entitled to maintenance from her former husband if she could not support herself, even after the iddat period (Islamic waiting period of three months after divorce). The decision held that the secular law of Section 125 CrPC overrides Muslim personal law in matters of maintenance, sparking widespread debate.
It eventually led to the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986, which diluted the Supreme Court’s ruling under political pressure.
Shah Bano’s name over the decades thus became synonymous with a woman’s fight for dignity within the bounds of personal law, but also with the political firestorm that followed.
Right to privacy & past cases
The right to privacy was recognised as a fundamental right under Article 21 of the Constitution in the Supreme Court’s K.S. Puttaswamy vs Union of India (2017) judgment. The nine-judge bench declared privacy as intrinsic to life and liberty encompassing personal choices, bodily autonomy, and control over personal information.
But what happens when the person is no longer alive? Can privacy, reputation, and personality rights extend beyond death?
The question of posthumous rights has surfaced repeatedly in Indian courts, from the Veerappan case to J. Jayalalithaa’s and Sushant Singh Rajput’s.
In Makkal Tholai Thodarpu Kuzhumam Ltd vs V. Muthulakshmi (2007), popularly known as the Veerappan case, the Madras High Court dealt with the portrayal of the late forest brigand’s wife in a television serial. It observed that unauthorised depictions, if defamatory or invasive, could be restrained, but the claim must show actual harm to the living person’s reputation or mental peace, not merely the deceased’s.
A similar controversy emerged in 2019 when the Madras High Court heard petitions challenging films and web series based on the life of late Tamil Nadu chief minister Jayalalithaa, including The Iron Lady, Thalaivi, and the web series Queen.
Jayalalithaa’s niece, Deepa Jayakumar, had approached the court seeking a stay on these portrayals, arguing that they violated her aunt’s posthumous right to privacy and could distort her public image.
The court refused to impose a blanket restraint. It observed that while the right to privacy ends with the individual’s death, family members could still claim protection under defamation or reputation grounds if the depiction cast aspersions that directly harmed their own dignity.
Similarly, in 2021, the Delhi High Court dismissed a plea filed by late actor Sushant Singh Rajput’s father seeking to stop the release of the film Nyay: The Justice. The court made it clear that “the right to privacy, the right to publicity and personality rights which (were) vested in Sushant Singh Rajput were not heritable. They died with his death”.
It further noted that the right to free expression under Article 19(1)(a) protects the publication or dramatisation of information available in the public domain, as long as it does not infringe the restrictions of Article 19(2).
Publicity & personality rights
Publicity rights in India are not codified in a single statute but are derived from tort law, contract law, and intellectual property principles. An action for protecting publicity or personality rights may take the form of defamation, breach of privacy, unfair trade practices, or violation of moral and economic rights.
For instance, using a celebrity’s image or name for advertising or product packaging without consent could amount to misappropriation of their identity. The line between public interest and commercial exploitation often becomes the battleground in such cases.
However, as the Delhi High Court observed in Sushant Singh Rajput’s case, freedom of expression prevails so long as the depiction relies on information already available in the public domain and does not cause tangible harm.
The Shah Bano controversy reopens a deep constitutional and ethical debate: whether filmmakers should have unfettered creative freedom to reinterpret real lives, or whether the dignity of individuals, living or dead, must impose reasonable limits.
(Edited by Nida Fatima Siddiqui)
Also Read: ‘Not just a Muslim woman, I am an Indian.’ Shah Bano movie has Emraan Hashmi, Yami Gautam