-Akshat Agarwal* and Aditya Bhargava**
Abstract
In this piece, we explore the inconsistencies in the Indian jurisprudence on personality rights with emphasis on the recent case of T-Series (Super Cassettes) v Dreamline Reality. We argue how the Punjab High Court in this case has relegated the status of personality rights from a constitutional right to a common law right. This is in contrast to the Supreme Court’s observations in Puttaswamy v UOI and subsequent Delhi High Court decisions. We further argue how the Punjab High Court has limited the scope of personality rights by holding that they are exclusively available to celebrities. This piece throws light on how such inconsistencies can impact the rights of a person claiming personality rights.
Introduction
With the development of privacy jurisprudence, personality rights have gained traction in India. Recently, the Delhi High Court ('HC') recognised the personality rights of Anil Kapoor and granted an interim injunction against their unauthorised use. The court recognised how attributes of one’s personality have elements of intellectual property and privacy. Personality rights allow an individual to profit from the attributes of his persona such as his name, image, voice, peculiar mannerisms, catchphrases, etc.
The legal basis of personality rights in India has been unclear. There is no legislation on this subject, and they are not explicitly covered by the existing intellectual property laws. Due to this, courts have assumed the existence of personality rights without explaining the legal basis of personality rights. In several cases, they have failed to explain from which statutory provision or common law right personality rights originate.
A seemingly conclusive answer can, however, be inferred from Puttaswamy v UOI which elevated the status of personality rights to a constitutional right under Article 21. The court observed that under the right to privacy, every person has the right to control the commercial use of their image or persona. The Puttaswamy judgement has been relied on in Krishna Kishore v Sarla Saraogi and the Anil Kapoor case to link personality rights with privacy rights.
This position, however, has been recently unsettled by the Punjab and Haryana High Court in T-Series (Super Cassettes) v Dreamline Reality. In this case, T-Series bought rights over a book that covered the life of Jaswinder Singh who was subjected to honour killing. T-Series intended to make a film adaptation. Sukhwinder Singh, Jaswinder’s husband, claimed a violation of his personality rights because the attributes of Sukhwinder’s personal life will also be involved in a film adaptation based on his wife’s honour killing. The court held that the observation in Puttaswamy that recognizes personality rights under the right to privacy is merely advisory and not binding law. The court further held that personality rights are specifically available to celebrities. These rights are not available under the right to privacy which applies to all regardless of whether they are celebrities. Thus, Sukhwinder was denied relief on grounds of violation of personality rights. More importantly, the Super Cassettes case demonstrates that the judge-made law on personality rights is inconsistent and conflicting.
In this piece, we argue that the Super Cassettes judgement has given birth to significant inconsistencies in personality rights jurisprudence in India. We focus on two inconsistencies: first, the source of personality rights, that is, whether personality rights are rooted in common law or constitutional law; and second, who can claim personality rights, that is, whether personality rights are available to all or exclusively to celebrities.
The Source of Personality Rights
Given that there is no legislation on personality rights in India, the law around personality rights is judge-made. As early as 1994, the Supreme Court in the case R. Rajagopal v Tamil Nadu recognized that the infringement of personality rights is an infringement of privacy which gives a cause of action in tort law. In other words, the court grounded personality rights in common law. This position changed with the Puttaswamy judgement where J. Abhay Sapre in his concurring opinion held that:
“[F]rom the right to privacy in this modern age emanate certain other rights such as the right of individuals to exclusively commercially exploit their identity… 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.”
Thus, Puttaswamy recognized personality rights as a subset of the right to privacy enshrined under Article 21. This impliedly elevated the status of personality rights from a common law right to a constitutional right because personality rights could be sourced from Article 21.
In Super Cassettes, however, the Punjab HC refused to acknowledge that personality rights are a subset of the right to privacy under Article 21. The court held that the observation contains the views of only one judge and is advisory in nature. Thus, the relevant paragraph quoted above from J. Sapre’s opinion is not a binding law. The court based its reasoning on the language used by J. Sapre which, in the court’s opinion, was ‘inflectional and colloquial.’
We argue that this reasoning is legally unsound and the court has relegated the status of personality rights. Firstly, an observation does not lose its binding force merely because it has been given by one judge. In Mahendra Thakar v S. P. Pande, the court held that the law declared by the Supreme Court can be gathered even from the minority or dissenting opinion of the judgement. Article 141 of the Constitution does not say that the law declared by the Supreme Court can only be inferred from the majority opinion.
Secondly, admittedly the other judges in Puttaswamy do not offer any opinion on including personality rights under the ambit of right to privacy. However, they do not explicitly disagree with J. Sapre’s observations either. In such a scenario, the concurring opinion by one judge can be binding. This is because while giving concurring opinions, judges have read the judgements of each other. If they intend to disagree with each other then they shall do so explicitly in their opinions. However, if they don’t, the logical implication is that each of them agrees with the judgement of the other.
Thirdly, even if J. Sapre’s observations are mere obiter and not ratio decidendi in stricto sensu, high courts can be bound by the obiter dicta of the Supreme Court. The Supreme Court has held that normally, even obiter dicta are binding unless compelling reasons can be given to not follow them. Further, in Mohandas Issardas v A.N. Sattanathan the court held that in the interest of judicial uniformity, high courts must accept the obiter dicta of the Supreme Court as binding. The obiter dictum of a Supreme Court judgement is a judicial opinion expressed by the judge of the highest constitutional court. Therefore, it will be in the interest of judicial discipline if the high courts treat such an opinion as binding unless strong and compelling reasons exist to suggest otherwise.
The Punjab HC has failed to provide compelling reasons behind considering J. Sapre’s opinion as non-binding. The court’s reasoning is largely based on technicalities such as the language used, and the fact that it was the opinion of a single judge which we have argued are not sufficient to hold the observations of a Supreme Court judge as non-binding. For argument’s sake, the court’s reservations about J. Sapre’s opinion may be justified by the consequences of giving a very liberal interpretation to personality rights, especially in the context of biographical works.
Assume that Sukhwinder was allowed to claim monopoly over his persona as it appears in Jaswinder’s life. It may be argued that if all characters of a biographical work were given personality rights over their persona, then it would become almost impossible to produce biographical works. A producer may have to obtain the consent of and possibly pay remuneration to every person involved in that person’s life whose biographical work is being produced. We argue that even then, the court was not justified in holding that J. Sapre’s opinion was not binding.
If granting excessive monopoly were the court’s concern, we argue that such concern is already accounted for because privacy rights, and by extension personality rights, are not absolute. Personality rights, even as a subset of privacy, do not survive when the matter enters the public domain. Privacy rights themselves are balanced against the interests of the public. Generally, the life events of well-known persons are already known to the public through media and thus, this information forms part of the public domain. Even in the factual scenario of Super Cassettes, Jaswinder’s life story about her honour killing was widely commented on by the media and was part of court records. Sukhwinder could not have claimed exclusive rights over his role in his wife’s life because their life story had already become a legitimate subject of public commentary. In other words, even if the court had held J. Sapre’s opinion to be binding, it could have still denied Sukhwinder exclusive rights over his persona in the film and could have balanced the interests of the public. Thus, in Super Cassettes, the court deviated from the constitutional status given to personality rights in Puttaswamy without sufficient legal reason.
This position further conflicts with the position of the Delhi HC post-Puttaswamy vis-à-vis personality rights. In Krishna Kishore, the court acknowledged that there is a constitutional aspect of privacy, and personality rights are a subset of privacy under Article 21. Further, in Anil Kapoor, the court explained how personality rights stand at the intersection of intellectual property rights and constitutional rights. The court held that:
"[E]lements of intellectual property that protect the attributes of an individual, in fact have other dimensions including rights protected by the Constitution of India."
Therefore, with the Super Cassettes judgement, the legal basis of personality rights has again become unclear. Whether personality rights are sourced from common law or from constitutional law will have a wide impact on how personality rights jurisprudence develops. As a subset of the right to privacy under Article 21, the scope, extent, and limitations of personality rights will be governed by the principles enunciated in Puttaswamy. The nature of relief as a constitutional right will also differ as compared to relief under a common law right. Under common law, a claim for personality rights will have a tortuous action for damages and injunction cannot generally be claimed as remedy. An injunction, however, may be available as a constitutional remedy.
In addition to the source aspect of personality rights, the Punjab HC has also complicated another aspect: who can claim personality rights. As a constitutional right, personality rights could be made available to all persons. However, in Super Cassettes, because the court did not treat personality rights as a constitutional right, the court held that personality rights vest only in celebrities.
Who can claim personality rights?
Personality rights have closely been associated with celebrities. The object of personality rights is to protect the commercial value in a person’s identity. A celebrity constructs his image through skill and hard work over time and thus, they should exclusively reap the commercial benefits of their fame. However, scholars have argued that the concept of ‘celebrity’ has undergone expansion and is not just limited to traditional categories like sports stars, movie actors, political figures, etc. Fame can also be developed overnight with one video of the person going viral over social media. Personality rights can be violated when there is unauthorized commercial exploitation of one’s identity regardless of whether they are a ‘celebrity’ in the classical sense.
In Super Cassettes, however, the Punjab HC took a different position. The court held that one must qualify as a ‘celebrity’ to exercise personality rights. The Punjab HC confused the broader concept of personality rights with the rights exercised by celebrities over the commercial value of their persona. While it is true that most claims of personality rights in Indian jurisprudence have been initiated by or with respect to celebrities, this does not mean that personality rights are restricted to celebrities. Celebrities are only a class of persons who exercise these rights but they are not the only class of persons in whom these rights vest. We argue that this diminution of the scope of personality rights and limiting them to celebrities is legally unsound for two reasons.
Firstly, this goes against the principles of privacy enumerated in Puttaswamy. J. Sapre’s observations with respect to personality rights do not apply only to celebrities. The court did not interpret Article 21 to give rise to two sets of privacy rights: one available to everyone in general and an extra bundle of rights available only to celebrities. This position was also taken by the Delhi HC in Krishna Krishore where the court rejected the idea of an exclusive bundle of rights available to celebrities:
“It does not appear permissible, in our constitutional scheme… to countenance an “extra” bundle of rights which would be available for enjoyment only to celebrities… Rights which emanate from one's personality, and persona, would be available to one and all, and not only to celebrities.”
While the Punjab HC attempted to circumvent the reasoning of J. Sapre, we have already argued how such circumvention is not well-reasoned.
Secondly, even if personality rights vest only in celebrities, the court does not explain who qualifies as a ‘celebrity’. The court stated that the claimant in this case, Sukhwinder, did not have a ‘celebrity’ status to assert personality rights. However, the objective of personality rights is not to protect celebrity status per se. The objective is to protect the right of a person to exclude others from exploiting the commercial value of their persona. Commercial value can exist in the attributes of a person even if they do not have a traditional ‘celebrity’ status. In Titan Industries v Ramkumar Jewellers, the Delhi HC held that what is required for claiming personality rights is that the person in question should be identifiable with the unauthorized use of the defendants. While the ‘celebrity’ status of a person may be sufficient to create a strong inference of identifiability, the court did not indicate that celebrity status is sine qua non of personality rights. In Super Cassettes, Sukhwinder was the husband of Jaswinder on whose honour killing the movie is based. Thus, Sukhwinder is identifiable from the movie as the husband of the protagonist.
For argument’s sake, assume that the court’s position in ultimately denying relief to Sukhwinder on the grounds of personality rights is correct. Even then, the court does not justify how Sukhwinder’s persona does not have commercial value to merit the protection of personality rights given that the movie is also based on his life and has been produced for a commercial purpose. The court seems to proceed on the assumption that because Sukhwinder is not a ‘celebrity’, his persona does not, ipso facto, have commercial value. Thus, in Super Cassettes, the court imposes celebrity status as a precondition to claiming personality rights. This conflicts with the observations of Puttaswamy and Krishna Kishore.
Therefore, the Super Cassettes judgement has given rise to these inconsistencies in the personality rights jurisprudence. However, we do not argue that the court’s ultimate decision to deny relief to Sukhwinder would have changed in the absence of these inconsistencies. Even if personality rights are vested in Sukhwinder, they perish when the matter enters the public domain. This is because the right to privacy itself is not absolute, therefore, personality rights are also not absolute. When the matter is based on public records such as court judgements and media, personality rights get extinguished because then people can legitimately comment on the matter. Even in Super Cassettes, the story of Jaswinder’s honour killing was widely published by the media. The story has also been part of Indian and Canadian court records. While the Punjab HC does acknowledge that Jaswinder’s story was already in the public domain, we argue that this alone would have been sufficient to deny personality rights to Sukhwinder. Thus, the court unnecessarily gave birth to the aforementioned inconsistencies.
Conclusion
In this piece, we have argued how the Super Cassettes judgement has given rise to major inconsistencies in the personality rights jurisprudence in India. Understandably, the concept of personality rights is nascent in India, however, their importance as a distinct intellectual property has been recognized by several scholars and even by Indian courts. Therefore, such inconsistencies will continue to muddle the principles behind personality rights, making it difficult for people to enforce such rights and get relief. While this piece has focused on the Super Cassettes judgement, we do not argue that before this judgement personality rights jurisprudence was lucid. Given the judge-made nature of personality rights, there is bound to be inconsistencies in the judgement delivered by various high courts. Perhaps, it is time that India considers enacting a sui generis legislation to provide clarity and consistency on this subject.
*Akshat Agarwal is a second-year B.A., LL.B. (Hons.) student at NLSIU, Bengaluru, India.
**Aditya Bhargava is a second-year B.A., LL.B. (Hons.) student at NLSIU, Bengaluru, India.