Explained: In light of PIL against Dulquer Salmaan's Kurup, do proclaimed offenders also enjoy right to privacy?

A public interest litigation has been filed by a city lawyer of Kerala against Dulqueer Salmaan-starrer Kurup . The petitioner claims that the movie is exploiting Sukumaran Kurup’s right to privacy, and such portrayal of his personal life with ingredients of fiction could be detrimental to him and may even deny him justice before a court of law.

The petition seeks to stop the release of the motion movie. It is a compelling crime drama based on India’s most wanted fugitive, Sukumaran Kurup, who after reading about a crime involving embezzlement of insurance money in Germany, got motivated to fake his own death and took the life of a lookalike, Chacko, for life insurance money. To understand the whole controversy around Kurup, and why it landed in a legal soup, it is pertinent to understand how the right to privacy works, and whether such rights are accorded to proclaimed offenders. For this, let us first rewind to 2017, when the Supreme Court passed a historic judgment in the Puttaswamy Case, and gave legitimacy to the right to privacy under the Constitution of India. The court said that every citizen has a right to safeguard the privacy of their own, their family, marriage, procreation, motherhood, childbearing, and education among other matters. None can publish anything concerning the above matters without their consent — whether truthful or otherwise, and whether laudatory or critical. Conviction of a person does not strip them of their fundamental rights. The right to privacy forms an intrinsic part of the Right to Life and Personal Liberty as held by the court of law in various judgments. There is, however, only one expectation to the rule that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. When a flick is based on a true crime, filmmakers often blend truth and fiction, and essentially capitalise on the exploitation of individuals’ personhood. To take an example, Meghna Gulzar’s  _Talvar_  (2015),which was faithful to the real crime case (the 2008 Noida double murder case), was still marred by the larger narrative envisioned by the directors. This leads us to question whether a cinematic representation of an actual case that openly takes sides, considering the matter is subjudice before the court, should be allowed? Is it justified for such reenactments to give up on the privacy rights of the offender/victim for telling a great yarn? The exception to Sukurmaran’s case is the fact that in the past, already two movies, NH 47 (1984) and Pinneyum (2016), have been made, and of course, his case makes part of the court record. If we look at the Telangana High Court judgment in Super Cassettes Industries Pvt Ltd. (T-Series) & Anr v Nandi Chinni Kumar & Ors, the court pointed out “once the matter becomes a matter of public record, the right to privacy is no longer subsisting, and it becomes a legitimate subject for comment for press and media among others. It noted that when the events which occurred in the life of the respondent are already in the public domain, they cannot plead any violation of the right of privacy by the appellants in making a movie based on such events.” Even if we consider the instance of Bad Boy Billionaires, there were multiple lawsuits that were filed for stalling the release of the series. However, Netflix India argued that since the docu-series consists of facts, information, footage, and snippets pertaining to the billionaires, which is already available in the public domain and/or is in the public knowledge, the question of privacy does not sustain. In the present case of Kurup, titled as Sebin Thomas v Union of India & Ors, the Kerela High Court has issued notice to the respondents — the producers, the Central and state (Kerala) governments, and National Central Bureau (NCB) Interpol. The court is likely to hear the case again within 10 days. It is thus in the background of the growing popularity of true crimes that the case of Sukumarna Kurup has taken even more prominence. This PIL creates dialogue and discourse around the importance, impact, and rights of people on whom a  true-crime movie is based.

The court must take this as an opportunity to define the contours of the right to privacy vis-a-vis biopics/true-crime narratives. While filmmakers can take a lot of creative liberty, and attain artistic interpretation of life, do they also need to be cognizant of individuals’ personality rights?

True-crime media has a disproportionate influence over public opinion. Inadequately informed consensus can have disastrous consequences, such as waves of hate mail directed at unfortunate individuals linked to a criminal investigation. In the present case as well, Shahu, Kurup’s friend who became an apology witness in the case, said that he had changed his name 37 years ago, and is now being remembered by people again. He also said that he could not even go out to work now. Even when the information is in the public domain, there should be an ethical responsibility of a filmmaker to weigh the impact on all stakeholders. Long story short, this PIL marks the fortification of the recurring message that, “the Court is under an obligation to maintain a balance between all the stakeholder and safeguard the interests of the victim, accused, society, and the state.” Kurup is playing in cinemas. Vanita Bhatnagar is a graduate of Symbiosis Law School. She is currently working as a Director for Operations & Research at She For Change