Court: High Court of Bombay Decided on: 12 October 1984 Presiding Judge: Not named in the judgment text Citation: AIR 1985 Bombay 229
Background
The first plaintiff, Indian Express Newspapers (Bombay) Private Limited, is the publisher of the daily newspaper Indian Express, published from several cities in India including Delhi and claimed at the time to have the largest combined circulation amongst all daily newspapers in the country. The second plaintiff, Ashwini Sarin, was a journalist employed by the first plaintiff. In the course of extensive investigation into the flesh trade flourishing in Madhya Pradesh, the second plaintiff purchased a woman named Kamla from a village near Shivpuri in Madhya Pradesh for Rs. 2,300/- with the deliberate object of exposing the racket. He thereafter wrote a series of articles, which were published by the first plaintiff in issues of the Indian Express dated 27, 29 and 30 April 1981 and 2 May 1981. The first article, which opened with the second plaintiff’s own account of the purchase, created a national sensation. The Government of Madhya Pradesh ordered an inquiry and directed the police to register an offence. A writ petition was filed before the Supreme Court by the second plaintiff and two colleagues seeking directions to the authorities to check the racket and the Supreme Court directed that Kamla not be removed from the Arya Samaj Home where she had been admitted. Kamla subsequently went missing from an orphanage in November 1981 and remained untraced despite a Supreme Court direction to the Commissioner of Police, Delhi to investigate her disappearance.
The first defendant, Jagmohan Mundhara, operating under the firm name Smriti Pictures, produced the film Kamla, the script of which was written by the second defendant, Vijay Tendulkar — an eminent playwright. The second defendant had scripted a stage play also titled Kamla in July/September 1981, which was thereafter staged approximately 150 times in 32 cities across seven languages. The film was described as a cinematographically adapted version of the play. The central theme of both the play and the film was the purchase of a woman named Kamla by a journalist named Jaisingh Jadhav, in order to highlight the flesh trade operating in areas bordering Madhya Pradesh, Uttar Pradesh and Rajasthan. The film, however, introduced additional scenes and characters not present in the play — notably a conversation between the proprietor of the newspaper (referred to as ‘Shetji’ and identified by the name ‘Ramgopal’) and the editor in a car and a telephonic conversation between ‘Shetji’ and a character named ‘Behari’ — which depicted the proprietor of the newspaper succumbing to political pressure, hushing up the affair and being responsible for the woman’s disappearance from the orphanage. The journalist was also portrayed as a dominating husband who treated his wife as a slave. The newspaper in the film was named ‘Delhi Express’. The first defendant held a preview of the film in February 1984 and gave the film wide publicity, including in certain publications, which made it publicly known that the film was based on a real life event.
The first plaintiff, feeling that the film infringed its copyright in the articles and portrayed the plaintiffs in a defamatory manner, served a notice dated 20 June 1984 upon the first defendant calling upon him to obtain the first plaintiff’s consent and to delete all objectionable, defamatory and derogatory content. The first defendant refused. The plaintiffs thereupon filed a suit for permanent injunction and claimed damages of Rs. 5,00,000/-. They also took out the present Notice of Motion seeking an interim injunction restraining the defendants from distributing, circulating or releasing the film Kamla in any manner for public or private exhibition and for delivery up and appointment of a receiver in respect of all prints, scripts and materials relating to the film.
Issues for Determination
Three principal legal questions fell for determination at the interlocutory stage. The first was whether the film Kamla infringed the copyright of the plaintiffs in the articles published by the second plaintiff in the Indian Express. The second was whether the film was defamatory of the plaintiffs — specifically, whether the film was capable of being identified with the second plaintiff and the first plaintiff and whether the additional scenes introduced in the film were capable of lowering the plaintiffs in the estimation of right-thinking members of society. The third was whether the plaintiffs’ failure to take action against the stage play Kamla, which had been running for three years in multiple cities and languages, amounted to laches, acquiescence or implied consent that disentitled them to interim relief against the film.
Key Holding of the Court
The Notice of Motion was partly allowed. On the question of copyright infringement, the Court found that the claim was prima facie misconceived, since there cannot be copyright in an event which has actually taken place and the ideas, information and events on which the articles were based were common property. On the question of defamation, the Court held that the film was prima facie defamatory of the plaintiffs in so far as the additional scenes introduced in the film — which were not present in the stage play — depicted the newspaper management succumbing to political pressure, conspiring to hush up the affair, being responsible for the woman’s disappearance and victimising the journalist who brought fame to the newspaper. The Court held that the plaintiffs had, by their silence over three years of the play’s run, impliedly acquiesced in the production of a film that was a faithful cinematic adaptation of the play and therefore declined to restrain the release of the film in its entirety. However, the Court held that the film went beyond the play in the additional defamatory scenes and accordingly granted a conditional injunction restraining the release of the film unless and until those specific scenes were deleted, the deleted portions of the film and prints destroyed and an affidavit of compliance filed by the first defendant within two weeks, along with a written undertaking not to incorporate those scenes in the film at any time in the future. No order as to costs was made.
Statutory Provisions Involved
The Court engaged with the Copyright Act, 1957 in the context of the copyright infringement claim, though no specific section numbers are cited in the judgment beyond a reference to the principle that there cannot be copyright in an idea or event, drawn from the Supreme Court’s decision in R.G. Anand v. Delux Films. The defamation claim was adjudicated entirely on common law principles, with no specific statutory provision cited in that regard. Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 governed the application for interim injunction. Order 39 Rule 4 governed the defendant’s application for vacation of the ad interim ex parte injunction that had been granted earlier.
Reasoning of the Court
On Copyright Infringement
The Court disposed of the copyright claim briefly and on settled principle. It acknowledged that the second plaintiff’s articles contained an autobiographical account of his own participation in the event, presented in his own literary style and that the articles attracted copyright protection to that extent. However, the Court drew a clear distinction between the subject matter — the event of purchasing a woman to expose the flesh trade — and the literary form in which that event was expressed. Applying the principle laid down by the Supreme Court in R.G. Anand v. Delux Films, the Court held that there can be no copyright in an idea, subject matter, themes, plots or events and that violation of copyright is confined to the form, manner, arrangement and expression of the idea by the author of the copyrighted work. The form, manner and arrangement of a drama or film are materially different from a newspaper article and by the very nature of the respective media, there is a fundamental and substantial dissimilarity in the mode of expression of the same idea in a newspaper article and in a stage play or film. The claim for copyright infringement was therefore held to be prima facie misconceived.
On Defamation — Identification of the Plaintiffs
The Court found that the identity of the journalist depicted in the film with the second plaintiff was established beyond doubt. The purchase of a woman by a journalist and the attendant events had received such wide national publicity that any reference to a journalist purchasing a woman named Kamla would, in the minds of those who knew of the real event, immediately point to the second plaintiff. The Court further held that once the identity of the journalist was established, the identity of his employer followed. The naming of the fictitious newspaper as ‘Delhi Express’ in the film was held to be an unmistakable innuendo directed at the Indian Express, which was also published from Delhi. The reference to the proprietor as ‘Ramgopal’ further brought the identification closer for those who knew that Ramnath Goenka had controlling interest in the first plaintiff company and the fact that the film depicted an individual proprietor rather than a limited company did not destroy this identification, since the individual in the film symbolised the management of the newspaper. The publicity given to the film had itself made it known to the public that the film was based on a real life event.
On Defamation — The Legal Standard
The Court applied the established common law principle that in an action for defamation, it is not a defence that the defendant did not intend to defame the plaintiff, if responsible people would think the language to be defamatory of the plaintiff — a principle drawn from the House of Lords decision in E. Hulton and Co. v. Jones, (1910) AC 20 and affirmed in Cassidy v. Daily Mirror, Youssoupoff v. Metro Goldwyn Mayer, Newstead v. London Express and Ross v. Hopkins. The Court further held, following the Chief Justice’s observation in Jones v. Hulton and the House of Lords’ majority decision in Morgan v. Odhams Press Ltd., (1971) 1 WLR 1239, that it is not necessary for the entire world to understand the libel; it is sufficient if those who knew the plaintiff would, on reading or viewing the material, believe that the plaintiff is the person meant. The relevant test is what an ordinary sensible man, having knowledge of the relevant circumstances, reading the material casually and without expecting a high degree of accuracy, would understand. It is equally not a defence that people would not believe the imputations to be true.
On Corporate Defamation
The defendants argued that the acts attributed in the film to ‘Shetji’ were of a personal nature and could not be attributed to a company and that any defamation would affect only the individual personally associated with the management, not the corporate entity. The Court rejected this contention. Relying on a line of English decisions — Metropolitan Saloon Omnibus Co. Ltd. v. Hawkins, South Helton Coal Co. v. North Eastern News Association Ltd., D.L. Caterers Ltd. v. D’Ajou, Lewis v. Daily Telegraph Ltd. and Selby Bridge Proprietors v. Sunday Telegraph — and on Spencer Bower on Actionable Defamation, the Court held that a trading corporation has a business reputation and can sue for defamation in respect of a publication calculated to injure that reputation in the way of its business. The Court reasoned that the suggestion that the management of the newspaper was in the hands of an individual susceptible to political pressure who was prepared to victimise honest investigative journalists and suppress truth by any means — including abetting crimes — clearly injured the trading character and business reputation of the newspaper. The first plaintiff therefore had as much a right to sue for defamation as the individual to whom the defamatory conduct in the film was attributed.
On the Disclaimer
The Court rejected the defendants’ contention that the disclaimer at the beginning of the film — stating that no resemblance to real life characters was intended — provided any protection. It observed that such disclaimers generally have precisely the opposite effect, prompting viewers to assume that the film does bear a relation to real life characters and to actively seek out who those characters are.
On Laches and Acquiescence
This was the aspect of the case that most directly influenced the final relief granted. The Court accepted that the plaintiffs were prima facie aware that the stage play Kamla — which had been running to packed houses since October 1981 in 32 cities across seven languages — was based on the real life story involving Kamla and the second plaintiff. The first plaintiff published Loksatta, a widely circulated Marathi newspaper that devoted substantial space to stage performances. The first plaintiff also published the weekly Screen, in which publicity for the film was carried. The plaintiffs took no action against the play, which the Court held to be equally defamatory. Having allowed the play to run undisturbed and having indirectly and impliedly consented to or acquiesced in the production of a film that was a faithful cinematic adaptation of the play, the Court held that the plaintiffs could not now restrain the release of the film in its entirety. The Court noted that every republication of a libel is a new libel and the maker of the film would be answerable for his act — but the plaintiffs’ knowing acquiescence in the production of a film based on the play was a material circumstance weighing against the grant of a full injunction.
However, the Court drew a critical distinction. The film went beyond the play in introducing the ‘car scene’ between Shetji and the editor and the ‘telephone scene’ between Shetji and Behari — scenes and characters that were entirely absent from the play. In the play it was only vaguely suggested that the journalist was sacked due to political pressure and there was no suggestion whatsoever that the proprietor was responsible for the woman’s disappearance from the orphanage. In the film, these innuendos were made explicit and the emphasis shifted significantly to maligning the management of the newspaper. The Court held that the plaintiffs had not acquiesced in this additional defamatory content that went beyond the play and therefore the specific scenes constituting this addition could be restrained. A conditional injunction was accordingly granted limited to the deletion of these identified scenes.
Doctrinal Significance
This judgment makes contributions to Indian copyright and defamation law that remain relevant across several dimensions.
On the law of copyright, the judgment is an early and clear application in India of the foundational principle that copyright does not subsist in ideas, events or subject matter, but only in the particular form, expression and arrangement chosen by the author. Applying the Supreme Court’s ruling in R.G. Anand v. Delux Films, the Court firmly rejected the attempt to use copyright law to prevent the treatment of a real life event in a different medium. The judgment underscores that investigative journalism does not generate a monopoly over the events reported and that others may freely draw upon those events as subject matter provided they do so in their own form of expression. This principle has continued relevance in the Indian creative and media industries, where the boundary between inspiration from real events and actionable reproduction of copyrighted expression is frequently contested.
On the law of defamation, the judgment makes three doctrinal contributions of significance. First, it affirms the principle that intention to defame is irrelevant — what matters is whether the ordinary sensible reader or viewer, having knowledge of the relevant circumstances, would understand the publication to be defamatory of the plaintiff. The application of this principle to a fictional film based on real events is particularly important, as it forecloses the defence that fictionalisation or change of names removes the defamatory sting.
Second, the judgment authoritatively establishes that a trading corporation can sue for defamation in India in respect of publications that injure its business reputation, even where the defamatory imputations are directed primarily at individuals associated with its management. As long as the imputation is of a nature that injures the trading character and business reputation of the corporate entity, the corporation has a cause of action independent of any personal action by the individuals concerned. This is a practically important principle for media corporations, financial institutions and commercial enterprises.
Third, the judgment provides a careful analysis of the doctrine of laches and acquiescence in the context of interim injunctive relief in defamation cases. The Court’s approach — distinguishing between the content of the play, to which the plaintiffs had by their silence impliedly acquiesced and the additional defamatory content introduced uniquely in the film, to which they had not — offers a nuanced and legally sound framework for cases where prior inaction is set up as a bar to interim relief. The holding that acquiescence in a prior publication does not extend to acquiescence in new, aggravated defamatory content in a subsequent publication building on the same theme, is a principle of considerable practical value.
Finally, the Court’s treatment of the disclaimer — holding that a notice at the beginning of a film disavowing resemblance to real persons tends to have the opposite effect on viewers — is a realist observation grounded in how ordinary audiences actually engage with such disclaimers and cautions against the use of pro forma disclaimers as a shield against defamation liability.