Delhi HC refuses to stay release of Hansal Mehta’s ‘Faraaz’ based on 2016 Dhaka terrorist attack

The plaintiffs argued that they are grieving mothers of daughters who died in a tragic incident and chose to mourn their loss in private. They argued that their “right to be left alone” supersedes the filmmakers’ right to commercially exploit the incident at the expense of the fundamental rights of the plaintiffs under Article 21 of the Constitution.

The defendants, the filmmakers, argued that information on the incident was already in the public domain and the names of the plaintiffs’ daughters were not used. Moreover, a disclaimer has been put that the film is a fictional piece of work inspired by a true incident, which prima facie takes care of the plaintiffs’ concerns. Furthermore, the characters of the two daughters have been fictionalised, they said. The movie, in no way, insensitively depicted the incident in which the two daughters of the plaintiffs were also involved, they added.

On the point of the right to privacy, the court held that it was that of the two daughters who died in the attack. Observing that the right to privacy is not inheritable by the mothers of the deceased girls, the court noted, “As already discussed above, right to privacy is essentially a right in personam and is not inheritable by the mothers/ legal heirs of the deceased persons.”

The court further held that the mothers’ right to privacy was not impinged by the movie nor was it compromised nor was there any affront to their dignity. The court noted that the makers of the film had explained and assured that the names of the two girls have not been used and that the identity of the two girls was not disclosed in any form.

The court observed that the ‘right to be left alone’ is an aspect of right to privacy but in the given case, it cannot be termed as a ‘right to be left alone’, especially when the two plaintiffs get barely any mention in the entire movie. “The plaintiffs have not been able to make out any case of ‘being left alone’ once breach of privacy itself has not been established,” the court held.

On the point of the right of a fair trial, the court observed that there was no explanation of whose right to fair trial has been claimed and in what manner the movie would impact the right of fair trial of any of the stakeholders.

On the issue of defamation, the court was of the view that defamation is a “personal right and is not pre-emptive in nature”. The court held that plaintiffs had not seen the movie and they were unable to explain as to which aspect of the movie is defamatory. The defamation essentially can be asserted only after the movie has been released, the court held.

“Defamation of a deceased person does not give rise to a civil right of action and common law in favour of the surviving family or relatives who are not themselves defamed…In this context it may be observed that emotional trauma per se may be relevant as a component of defamation, but cannot be the sole basis for making a prima facie case in favour of the plaintiffs,” the court held.

The court also noted that if the plaintiff finds any aspect of the movie defamatory despite the disclaimer given by the filmmakers, the remedy can still be sought after the movie is released. But if the filmmakers are injuncted from screening the film, that will cause irreparable loss and damage after having invested their money in preparing the movie essentially when the plaintiffs were unable to demonstrate what irreparable loss and injury is caused to them if the movie is screened.