Maharashtra National Law University, Mumbai

LAW OF TORTS

Case Commentary: Ruba Ahmed v/s Hansal Mehta

Submitted by

Triya Ghosh

2022105

Section B First Year

Submitted on: 16/11/2022

Submitted To

Asst. Prof. Amana Khare

 ABSTRACT

This case highlights the loopholes and the possible changes that could be inculcated into the
current defamation laws in India. For the purpose of this project, it will be restricted to Civil
Defamation. This project studies the appropriateness of the judgement, whether the rights of
the parties were infringed upon/not infringed upon and how the law can advance further.

I. INTRODUCTION

The most recent step towards the development of Defamation laws, was the Sri Lanka
symposium of September 1999. Defamation laws were created to protect reputation and
prohibits one from making comments that would make a reasonable man think less of their
subject. While it is widely used positively, political parties, public figures and institutions
often use it to abuse the freedom of speech of their critics. 1In India especially, the iron hand
of the censorship board over movies has been a bone of contention between filmmakers and
the government. Thus, it is imperative to develop defamation laws that suit the current
context of rising censorship and curtailment of freedom of speech.

Why is defamation wrong?

In principle, everyone has a right to their good name and the respect they have from others.
They also have a claim that their reputation won't be damaged by false claims made about
them to a third party without a valid defence or explanation. The right to reputation is
covered under Article 8 of the European Convention on Human Rights of 1950 as a part of
the right to respect for a person's private and family life.2

To understand civil defamation, it is important to define it.

A public statement that tends to harm another person's reputation is called defamation. It
encompasses both slander and libel (written defamatory assertions) (oral ones). There is
widespread agreement that a statement that is just ugly, irritating, troublesome, or unpleasant,
or that only affects the plaintiff's feelings, is not actionable. However, the definition of
defamation varies from jurisdiction to jurisdiction.

Defamation case are common in Bollywood, there is an increasing amount of film litigation
related to defamation. With the advent of OTT platforms, with less censorship, the audience
1
Bonnie Docherty, Defamation Laws: Positive Jurisprudence, 13 Harvard Human Rights Journal 25 (2001),
https://harvardhrj.com/wp-content/uploads/sites/14/2020/06/13HHRJ263-Docherty.pdf.
2
Defamation in Civil Courts-An analysis #indianlaws – The Chambers of Law, New Delhi,
https://www.tclindia.in/defamation-in-civil-courts-an-analysis-indianlaws/ (last visited Nov 16, 2022).
is taking issue to content that is being displayed to millions of people3. Commercialising
trauma is nothing new in Bollywood, but when does freedom of expression infringe the rights
of someone else? Can family members get defamed on behalf of the deceased? Do they have
the right to be left alone?

II. RUBA AHMED VS HANSAL MEHTA

Description and Background Information

The plaintiffs who alleged defamation in this civil suit were, Ruba Ahmed (mother of Ms.
Abinta Kabir), and Tulika Jain (mother of Ms. Tarishi Jain), and the defendant is Hansal
Mehta the Director of the movie FARAAZ which is the main contention in this case.4 The
case was decided in Delhi High Court by Neena Bansal Krishna J, on October 14, 2022. The
plaintiffs objected to the release of the movie FARAAZ on the grounds that it may depict the
daughters of the plaintiffs in a bad light in relation to the Terrorist Attack on 1st July 2016, in
Dhaka Bangladesh. This attack is known as the Holy Artisan Bakery which led to the loss of
many lives, and was traumatic to the global community, given that the place targeted was
frequented by tourists of many nationalities.

The plaintiffs took issue to the fact that Faraaz Ayaaz Hossain was shown as a protagonist of
the attack, given the movie is titled after him. They claim that they had been one of the firsts
to speak to survivors of the attack who recounted a different story. Painting only one man as
the hero is a gross misinterpretation of facts.

Faraaz was the friend of the plaintiff’s daughters, and the terrorists had allowed him to walk
freely out of the café (where they had taken hostages), and he refused to leave his two friends
behind. In fact, the actual facts pertaining to the event are still under investigation and
pending in an ongoing case that is pending in the courts of Bangladesh.

Even though the disclaimer of the movie states that it is a work of fiction, the cast and crew
of the film asset in several interviews and public appearances that it is a true story.
Additionally, the names of the plaintiff’s daughters weren’t used, however, there is enough
information available in the public domain to insinuate that it was in fact them.

3
Aamir Khan, Rights, sensitivity and publicity: The ever-changing landscape of film litigation in India, Bar and
Bench - Indian Legal news, https://www.barandbench.com/columns/rights-sensitivity-and-publicity-the-ever-
changing-landscape-of-film-litigation-in-india (last visited Nov 16, 2022).
4
Bollywood director sued for “dishonouring” Bangladesh’s terror victims, Bollywood director sued for
“dishonouring” Bangladesh’s terror victims, https://www.trtworld.com/magazine/bollywood-director-sued-for-
dishonouring-bangladesh-s-terror-victims-49967 (last visited Nov 16, 2022).
Arguments made by the Defendant
The defendants have collectively participated in the creation and production of the feature-
length cinematograph film "FARAAZ" in the exercise of their fundamental rights under
Articles 19(1)(a) and 19(1)(g) of the Constitution. It is a fictitious work that draws inspiration
from publicly available materials and depicts the July 2016 incident with the utmost tact. The
daughters of the plaintiff are not the subject of the movie, and their names are not mentioned
by any characters. It doesn't make any mention of the daughters' names or personalities. The
defendants have never asserted that the movie is an accurate recreation of the attack from
July 2016.

On the contrary to what the plaintiffs claim (that Faraaz was not a protagonist or a hero of the
attack), For his bravery on the day of the attack, Faraaz Hossain received the Mother Teresa
Memorial International Award for Social Justice in 2016, which has been widely published
and about which information is easily available in the public domain. From 2016 forward,
PepsiCo INC. will annually present the "Faraaz Hossain Courage Award." The award comes
with a certificate of recognition and a monetary prize worth 10,000 Taka ($10,000). (Ten
Thousand US Dollars). It is also explained that there is a wealth of information on this attack
that is in the public domain.

There is no restriction on the creation and distribution of any feature film pertaining to
various topics, such as terror attacks. In the past, a number of films have been made about the
attacks and similar incidents that have occurred, including "The Attacks of 26/11," "Madras
Café," "Neerja," "The Stoneman Murders," "United 93," "World Trade Center," "Patriots
Day," "Stronger," "Utoya-July 22”.

The film will be duly submitted to the censor board of India before its release. Although the
Bangladeshi Censor Board may have forbidden the screening of the Bangladeshi film on the
incident, this is a completely internal matter and shouldn't be brought before the court
because different constitutional protections are provided in India and Bangladesh,
respectively.

The defendant also duly pointed out that the plaintiffs are also asking for a court order barring
the defendants from using Mr. Faraaz's name, despite the fact that they lack the authority to
claim to speak for Mr. Faraaz because they are neither his legal heirs nor, have they been
given any other authority to act in his place.
Arguments by the Plaintiff
All people have the right to privacy according to the Universal Declaration of Human Rights,
and although the information is available online, there needs to be some exceptions like:

 When a female is taken hostage by terrorists and brutally murdered as a result, her
name, picture, and character shouldn't be further humiliated by being made public in
the press or media. (See, for instance, Phoolan Devi v. Shekhar Kapoor, (1995) 57
DLT 154 and R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632: AIR 1995 SC
264.
 Decency and a sincere gesture demand that the defendants contact the plaintiff as
soon as they have an idea for a movie that has their children and their parts in it, or
any other character similarities.

Furthermore, it is contended that the plaintiffs' "right to be left alone" overrides the
defendant's ability to profit from a terrible event. The plaintiffs, who are the distraught
mothers of the daughters who perished in this awful tragedy due to unforeseeable
circumstances, lead private lives that are very different from those of public officials or
celebrities. The plaintiffs made the decision to mourn the loss of their respective daughters in
private even after the attack, avoiding media attention or any other unwelcome publicity. No
one has the right to violate their right to privacy, then or now.

The plaintiffs also requested for pre screening of the movie which the defendants disagreed
to, however they pre-screened the movie for the British Film Institute’s festival. The courts
have given pre-screening to the injured parties in a number of cases, including RG Anand v.
Delux Films (1978) 4 SCC 118 and Essel Vision Productions Ltd. v. Manisha Kulshreshtha
Order dated April 13, 2018.

No reliable, public record of the events of the night of July 1, 2016, including the manner,
timing, and order in which the victims were murdered by the terrorist, exists. Even if the
terrorists were willing to let Faraaz escape or if he opted to stay behind with his buddies, as
some of his family members believe, is not confirmed.

The defendants further argue that their movie is not defamatory, and since there is no fact that
there was defamation, rather there is only an apprehension, their case for defamation doesn’t
stand.

For the plaintiffs to be entitled to any interim injunction there must be a triple test
  Prima Facie Case the plaintiffs would have to prove that there is an obligation
existing in their favour, and there is right of theirs that has been infringed
 Balance of Convenience The defendants have the balance of convenience as the
injuction was sought 8-9 months after the making of the movie, and a significant
amount of funds were exhausted in its making. After the film has been released, the
plaintiffs may still seek redress if any component of it turns out to be defamatory
despite the defendants' guarantees and disclaimers. There is no balance of
convenience in the plaintiffs' favour.
 Irreparable loss and injury Because the plaintiffs have not been able to show what
irreparable damage and injury will be caused to them if the movie is played, the
defendants would suffer irreparable loss and harm if they were prohibited from
exhibiting the film after spending money on its production.

III. DEFAMATION LAWS, RIGHT TO PRIVACY (Including the RIGHT

TO BE LEFT ALONE), RIGHT TO FAIR TRIAL

The plaintiffs argued that they had a prima facie case and claimed that the three
aforementioned rights had been infringed upon.

Defamation
A civil cause of action and common law in favour of the surviving family or relatives who
are not themselves defamed are not created by the defamation of a deceased person. Libel
against a deceased person's memory is not considered to cause the living family the same
kind of legal harm as would result from a civil defamation lawsuit. The plaintiff's name must
be mentioned in the published defamatory material. The law does not consider the offence as
causing any special harm to another, but malicious defamation of a deceased person's
memory is condemned as a matter of good public policy because it offends the general
sentiments of morality and decency, and the interests of society demand its punishment
through the criminal courts.

In this case it was established that there cannot be a prima facie case of defamation because
the movie was never released, and they are unable to point out (without watching the film)
what content they found defamatory. In this case it was also established that libel on the
memory of a deceased person, doesn’t inflict harm on the surviving members.
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. Further, the defamation was not intentionally inflicted.

Having a law that burgeons the ability of filmmakers to bend true stories, and commercialise
sensitive societal narratives is imperative with our country becoming exceedingly volatile and
prone conflicts and riots. The Indian state and judiciary have always taken a disproportionate
interest in cinema as an art form. The following passage from the seminal S. Rangarajan v. P.
Jagjivan Ram case, which involved the last significant constitutional challenge to a
censorship legislation, nearly 50 years ago, best captures their strategy: "Movies inspire
action and thought, guaranteeing a high level of focus and memory. It affects both the
auditory and visual senses at the same time. The concepts are more powerful when facts and
opinions are dramatized and focused in a bright light on a screen. A lasting impression on
viewers will result from the integration of word and action, sight and sound, and semi-
darkness in the theatre5. Thus, the plaintiffs could seek for damages once the movie was
released once they had concrete proof that the producers had deviated from facts and shown
their daughters in the wrong light. Further, the defendant’s argument about the disclaimer is,
in my opinion, redundant. An audience member while watching a movie rarely pays attention
to long winded disclaimers. However, the assertion of the filmmakers that the movie is
inspired by true events, contradicts their disclaimer which states that no identification should
be inferred.

Throughout history, the balance between reputation and expression has swung back and forth,
but the past fifteen years have seen a global trend toward the liberalisation of defamation
legislation. In the courts, a body of "positive" jurisprudence has emerged. Despite the global
reach of this case law, the majority of these rulings on political speech are from democratic
nations. The instances serve as a warning that free speech is threatened even in generally
open societies while highlighting the crucial role that freedom of expression plays in
democracy. Although major violations of the right to free speech continue to occur in many
nations, this legal precedent shows an effort to provide protection for political criticism and
serves as a guide for future global reform.

5
Do we need a film censor?, The Hindu, April 13, 2017, https://www.thehindu.com/opinion/op-ed/do-we-need-
a-film-censor/article17993092.ece (last visited Nov 16, 2022).
Right to Privacy
The first argument made by the plaintiffs was that there must be dignity to those that are no
longer in this world, and this dignity should extend to their legal heirs (which in this case
were the mothers). This is manifested into their right to privacy, however according to
jurisprudence and the maxim acto personalis moritur cum persoma, states that the right of
personal action dies with the person themselves. This extinguishes their right to privacy.

In the landmark KS Puttaswamy case, it was clearly described how natural rights and
constitutional rights differ. It has been noted that everyone's right to privacy is essentially a
natural right that they are endowed with at birth. Until a person breaths their last, this right
remains theirs.

This law holds good on paper, but knowing the nature of the Indian press, and the press in
general, it is imperative that we protect grieving families from being dragged into the public
eye. It is obvious from the arguments of the plaintiffs that the movie doesn’t talk about the
identity of the plaintiffs’ daughters, however, in their arguments they mentioned they created
this movie based on public information. If the information is public, it will take little time for
the media to connect the dots and harass the families of the two girls, who are very close to
the focal point of the film.

A relative of the person in question cannot assert their relative's right to privacy because that
relative must be exposed to unwarranted publicity in order to do so. The cause of action
cannot remain after death since it cannot outlive the person. Unfortunately, this right was not
infringed upon by the defendants and thus did not extend to this case.

Right to be Left alone

The reach of a movie is significantly greater than that of any literature, essays, or other
writing that may be in the public domain. Even though there is a wealth of printed material in
the public domain, the plaintiffs would continue to experience trauma and emotional distress
every time the movie is displayed or seen. The two plaintiffs, it is said, have a right to privacy
and the freedom to grieve without being subjected to emotional harm by repeated movie
viewings.

“…To say that screening of a movie would cause any kind of trauma and upheaval may not
be correct...”, this is what the judgement states. However, I disagree with this point. Stating
that due to the existence of plethora of material, means that it will not cause emotional
upheaval is wrong. It has been 6 years since the incident and the incident hasn’t been so
widely publicised. Launching it to people who have never read the extensive reports, who
will after the movie read the reports and find the families, and this will rehash their trauma.
The existence of reports and documentaries doesn’t justify the release of a commercial big
budget film into the mainstream media, which will retraumatise the victims families and
thrust them into the public eye.

According to the judgement the right to be left alone isn’t established because the plaintiffs
do not have any mention in the case. In my opinion this part of the judgement is incorrect.

Right to Fair Trial

With regards to the ongoing case in Bangladesh investigating this incident, the judgement
stated that the courts and the investigating agencies do not rely on films to gain facts.
However, it is widely known that this will contaminate the investigation and the public will
react negatively which will make it harder to investigate without obstacles.

Any type of injustice has an effect on both the victim and the accused in the same way.
Although a right to a fair trial has been argued in the current case, it has not been made clear
who is asserting that right or how the movie will affect the rights of any parties involved to a
fair trial. Hence, I think this point stands, but the judgement discusses differently.

IV. CONCLUSION

There are strong arguments on both sides, however the ethics and morality that the
filmmakers should have exercised come into picture. While all questions of law were
adequately answered, in the defendant’s favour, there comes the moral question of whether
someone should be subjected to their trauma all over again, for another’s commercial gain.
Often filmmakers argue that these films are to create awareness, however, there are more
authentic forms of creating awareness when it comes to such sensitive issues. Additionally,
there is a need to create a separate legislation that deals with cases of filmmaking on true
events, and regulating the right to privacy that is awarded to the subjects of those events. It is
paramount to support the victims’ families, who never wanted to be in the spotlight but were
thrusted into it due to a re-enactment of their trauma.