Whose intellectual property?
Can 'Gulaab Gang' makers say that it does not have any reference to the life of Sampat Pal?
It has to be left to the people to watch, discuss and decide, says MADABHUSHI SHRIDHAR. PIX: A scene from the movie ~Gulaab Gang~
Legal controversy over the movie Gulaab Gang raises questions about the freedom of expression, intellectual property and reputation rights. Soumik Sen’s film features Rajjo (played by Madhuri Dixit-Nene) as the leader of a gang of women wearing pink sarees and wielding lathis, strikingly similar to Sampat Pal’s Gulabi Gang organisation that is famous for working towards empowering women. Leader of the gang, Sampat Pal raised objections in the media when the movie was first announced, but she filed a petition in the Delhi High Court just a day (on March 5) before its release, accusing its producers of intellectual theft and using her story without permission.
It was also contended that certain scenes in the movie would affect her reputation, for which she sought financial compensation. After watching the promos of the movie submitted by her, the Court was convinced that the film depicted Pal "in the negative light and gave her a fresh cause of action".
However, the stay was vacated by the Division Bench of Delhi High Court on March 6, 2014, facilitating its release in theatres on March 7, as scheduled, synchronizing with International Women’s Day on March 8. There is no intellectual property as such in one’s own social life which prevents others from referring to it, using it as a theme of a story or a movie or following it as a model for social good and permission to do so is not a legal requirement. However, no one has the authority to defame the personalities whose lives are the basis of their expressions.
When Sampat Pal barged into a police station and tied up a Station House Officer (SHO) for refusing to register the case of a rape victim, she became a public hero and the champion of women’s rights. If strictly applied, according to the sections of the Indian Penal Code, it is nothing but taking law into her hands and attacking a public servant. But a strong moral authority behind her act and public pressure made the SHO register the case. The police could not register a case against Pal because of their lapse in facing the challenge posed by a group of people that later became the Gulabi Gang. Today, refusing to register a criminal case against a rapist or a person accused of sexually assaulting a woman, is a crime as per the Criminal Law Amendment Act 2013 also known as the Nirbhaya Law.
Sampat Pal’s life is an inspiration and her activity constitutes a social event that could be cherished and emulated. Thus it is in public. It is reported that there are around six books and several documentary films on her life and struggle, other than the movie Gulaab Gang. Two known documentaries are – Amana Fontanella Khan’s Pink Sari Revolution: A Tale of Women and Power in India, 2013, and Nishitha Jain’s Gulabi Gang, 2012.
Life of public personalities belongs to the public and their rights over such a public life are limited. If someone reads their biography or autobiographical account and makes a movie or drama on that, that personality who lived that life has absolutely no right over the interpretation of that story unless there is ground for defamation.
A public life invites discussions in public interest. The life of such personalities, whether politicians, sports persons or artists, goes into public domain and it is for every member of the public to form an opinion or debate over it.
The cinema is a medium and it generates discussion over issues in public domain and whoever comments through that medium, whether for commerce or for any other purpose, has freedom of speech and expression as long as it does not cross the boundaries prescribed under Article 19(2) of our Constitution. If the filmmakers take care that they do not violate the reputation of the person that they are making a movie on or basing their story on, they cannot be faulted or be troubled unnecessarily.
The Gulaab Gang movie is the latest example of the violation of the right of the public to discuss a public life as an exercise of freedom of expression. The life of Sampat Pal is a social history which belongs to everyone. If one has to emulate her or discuss her actions, her permission is not required. Making of a movie over her life also does not need her permission legally. But the maker of a movie has a social and moral obligation to seek her permission and discuss details to avoid distortion or misrepresentation. The filmmaker reserves the right to criticise and pass a fair comment as per law. If the movie made on her life extends her mission and takes the issue in an effective manner into the public, it needs to be appreciated and not opposed. If there is defamation, then certainly the leader of the Gulabi Gang has the right to save her reputation and demand compensation for the damages caused.
However, the right to save her reputation is not so powerful to be able to restrict the expression from being released to the public. The Law of Defamation gives a consequential remedy which comes into operation only after publication. Release of a movie is publication and it is the right of the movie maker to release it unless its exhibition hampers certain social interests as stipulated in the Cinematography Act, which provides a mechanism for pre-censorship and certification for exhibition. Prior restraints on publication are unconstitutional and against the free flow of thoughts.
If there is a prima facie material to show that there is going to be a gross defamation causing irreparable damage to the aggrieved party, surely the judiciary has every authority to review and restrain it. However, it is the matter of an opinion that the narration in the movie is capable of causing serious damage. The judge said: “Reputation once loss is lost forever and cannot come back and can’t be compensated in monetary terms”. It is absolutely true. But the division bench opined differently and removed the restraints. It is not possible to say that one opinion was right and other was wrong. It is not the question of right or wrong, the opinion should be fair, whether it is expressed in a story, news report, movie or judgment.
Then remains the question of a disclaimer. With reference to Gulaab Gang, the claim that the movie is based on the life of Sampat Pal or not is not the issue at all. If the movie maker disclaims that it is not totally based on her life, it could be true to a great extent. But can they say that it does not have any reference or relevance to the life of Sampat Pal, when the social achievements of her group occupy the contents and the theme of the story line? It has to be left to the people to watch, discuss and decide. Whether claimed or not, if the movie resembles her life and distorts her reputation, she has every right to seek damages.
Professor Madabhushi Sridhar, was formerly with NALSAR Center for Media Law and Public Policy and is presently the Information Commissioner at Central Information Commission, New Delhi
Such articles are only possible because of your support. Help the Hoot. The Hoot is an independent initiative of the Media Foundation and requires funds for independent media monitoring. Please support us. Every rupee helps.
Subscribe To The Newsletter