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PUBLISH AND BE DAMNED

It was a small but significant slip. And American biographer Katherine Frank and her publishers HarperCollins England paid dearly for it. In her candid biography of the late Indian Prime Minister Indira Gandhi, The Life of Indira Nehru Gandhi, Frank had made some allegations about Sanjay Gandhi and his wife Maneka Gandhi.

When an irate Maneka Gandhi filed a defamation suit against them in a British court, Frank failed to come up with proof that her findings were authentic as she had not taped her conversations with the person who made the revelations. Later, the person completely denied talking to her.

The publishers ended up apologising to Maneka Gandhi and agreed to remove the offending passages from the next edition of the book. They also paid substantial damages to her to compensate for the injuries caused to her by the “derogatory” references made about her and her late husband.

That was in 2001. A decade later, another biography is generating another controversy and is being challenged in court. J. Jayalalithaa, AIADMK chief and the newly elected chief minister of Tamil Nadu, recently filed a petition in the Madras High Court, restraining Penguin India from releasing her biography, Jayalalithaa — A Portrait, penned by senior political journalist Vaasanthi.

The petition took exception to the excerpts from the book which were published in a national weekly magazine and stated that the “major content” of the book was “false and reckless, with total disregard for truth”. Jayalalithaa sought an injunction on the release of the book, timed for a post-election launch, claiming that it would “spoil her image” and damage her status in politics and public life. The petition also stated that the book was a violation of her right to privacy. The Madras High Court responded by ordering a stay on the release of the book. When contacted, Penguin India declined to comment on the case.

There is no specific law in India that relates to the publishing of biographies, especially unauthorised ones, which are often dubbed “false” and “malicious” by their subjects. Famous politicians and celebrities usually seek redress under Clause (2)(VI) of Article 19 of the Constitution, which prevents any person from making any statement that injures the reputation of another. In fact, defamation is treated as a criminal offence since it has been inserted into Section 499 of the Indian Penal Code. Similarly, the right to privacy, as enshrined in Article 21 of the Constitution, also protects an individual from unauthorised and derogatory material published about him or her.

According to Jeegesh Maroli, an intellectual property consultant in Bangalore, every citizen of India has the right to safeguard his privacy and that of his family. “No one can publish anything concerning the private matters of an individual without his consent — whether truthful or otherwise, and whether laudatory or critical. If any such matter is published, the individual’s right to privacy may be violated and he shall be entitled to sue for damages,” he says.

Matters relating to a person’s family, marriage, procreation, child bearing, education and so on are treated as personal matters, he adds.

So then is an unauthorised biographer’s work always open to legal challenges?

Yes and no. If the subject of a biography finds refuge in his or her right to privacy, publishers and biographers are also protected by their right to freedom of speech and expression guaranteed in Article 19(1)(A) of the Constitution.

For example, though Maneka Gandhi got a stay on the release of Khushwant Singh’s autobiography Truth, Love and a Little Malice on the ground that it contained “derogatory and defamatory material” about her and that it infringed on her fundamental right to life, which included her right to privacy, the Delhi High Court eventually vacated the stay. The court said that the “right to privacy enshrined in Article 21” could be invoked only against state action and not against private entities.

Again, in the case of the autobiography of Auto Shankar, a condemned prisoner, the Supreme Court ruled that anything that was in the public domain and on government records could be published.

Of course, there are umpteen examples of powerful people seeking legal action against their biographers. The Ambanis had threatened to sue Australian journalist Hamish MacDonald if his book on the late Dhirubhai Ambani, titled The Polyester Prince, was released in India. Published in 1998, the book is not available in the country even today.

Legal experts feel that in the absence of specific laws in this regard, the onus is on the biographer to be sure about the authenticity of his material and have the evidence to back it up. “Since the law does not spell out the rules governing unauthorised biographies, I would advise the author not to infringe on any copyright protected material owned by the subject and keep checking and rechecking the facts,” says Surya Senthil, advocate and partner, Jus Maxima Law Offices, Chennai.

Biographers and publishers do, in fact, try and steer clear of publishing anything that can be construed as defamatory or misleading. “You have to be extremely careful about matter that may be considered libellous or offensive in unauthorised biographies,” stresses Divya Dubey, publisher, Gyaana Books, New Delhi.

Renuka Chatterjee, chief editor, Westland Ltd, New Delhi, agrees. “Unauthorised biographies are a tricky domain. Biographers have to check their facts meticulously, research with responsibility and interviews have to be recorded,” she says.

Publishers take a calculated risk when they opt for unauthorised biographies. “We go in for them rather than wait for permission from celebrities. But it all depends on how interesting the subject is,” reveals Chatterjee.

However, unlike in the West, sensational biographies simply do not happen in India, says Krishan Chopra, chief editor and publisher (non-fiction), HarperCollins Publishers India. There is an unspoken tradition in our country about not revealing sensitive or personal details, he adds, citing the case of journalist Ajoy Bose’s tempered portrait of the Uttar Pradesh chief minister in Behenji: A Political Biography of Mayawati.

Still, most legal experts agree that since this is such a litigious field, it would be good if all judgments regarding the publication of unauthorised biographies were codified and a separate law on privacy introduced. It’s unlikely to stem our abiding interest in salacious details of the lives of the rich and famous. But at least, the legal contours of unauthorised biographies might then be better understood.

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