By extending privacy logic to commercial disputes, Indian courts may have turned personality rights into a doctrinal maze. Unpacking the decisions in Phoolan Devi v. Shekhar Kapoor and Puttaswamy, Anushka Aggarwal traces how the understanding of personality rights reached this point and why it matters. Anushka is a fourth-year student at the National Law School of India University, Bengaluru. Interested readers can also check out the first episode of Let’s IPsa Loquitor on the surge of personality rights cases.
The Many Faces of Personality Rights: How Courts Are Deepening the Confusion
By Anushka Aggarwal
The present comment builds upon an earlier post on this blog that critiqued the Delhi High Court’s (‘HC’s’) expanding jurisprudence on personality rights. As noted there, “the present orders are only an (needless) addition to the judicial morass being created on personality rights.” This piece seeks to locate the cause of that morass.
With Indian courts increasingly entertaining claims over unauthorised use of celebrity names, and images, ranging from films and advertisements to everyday merchandise, the question is no longer whether personality rights exist, but how they are being conceptualised. The confusion between constitutional and intellectual property rights (‘IPR’) frameworks, I argue, arises from a doctrinal lineage beginning from Phoolan Devi v. Shekhar Kapoor (1995), reinforced in the landmark Puttaswamy (2017) judgment, and further complicated by subsequent HC decisions extending privacy logic into commercial disputes.
The Phoolan Devi Legacy: When Privacy Became Control Over Representation
The roots of this conflation can be traced to the Delhi HC’s 1995 decision in Phoolan Devi v. Shekhar Kapoor. The plaintiff sought an injunction against the release of the film Bandit Queen, arguing that the depiction of her rape in the movie violated her right to privacy under Article 21 and went beyond the consent she had granted. The HC, relying on R. Rajagopal v. State of Tamil Nadu (the Auto Shankar case), held that the right to privacy protects the personal intimacies of life, such as marriage, motherhood, procreation, family, and child-rearing, even in the case of a public figure.
While the decision was aimed at protecting dignity and intimacy, the HC’s language stretched privacy to include control over how one’s identity is represented. It treated unauthorised depiction not merely as defamation or emotional injury but as an invasion of privacy itself. In doing so, Phoolan Devi subtly transformed the right to privacy from a shield against intrusion into a sword of representational control, i.e., the power to authorise how one’s persona is used or portrayed.
This blurs the line between moral autonomy (protected under constitutional privacy) and commercial control (protected as IPR). What began as dignity-based claims against misrepresentation has, through successive judicial interpretation, evolved into a doctrine that treated almost every unauthorised representation as a violation of personal rights.
The first such express interpretation was in ICC Development (International) Ltd. v. Arvee Enterprises (2003), where the Delhi HC held that the “right of publicity has evolved from the right of privacy and can inhere only in an individual or in any indicia of an individual’s personality.” Rooting this right in Articles 19 and 21, the HC stressed that “no persona can be monopolized,” locating publicity in individual autonomy, protected under the constitution. The same year, in Manisha Koirala v. Shashilal Nair (2003), the Bombay HC’s focus on reputational and bodily misrepresentation showed the transformation of privacy into a claim against image use against consent.
This trajectory was furthered in D.M. Entertainment (P) Ltd. v. Baby Gift House (2010), where the Delhi HC identified the right of publicity with an individual’s “autonomy to permit or not permit the commercial exploitation of his likeness or some attributes of his personality,” thus recasting dignity into market control. Subsequent cases, Selvi J. Jayalalithaa v. Penguin Books India (2013) and Shivaji Rao Gaikwad v. Varsha Productions (2015), cemented this approach, holding that even in the absence of falsity or confusion, unauthorised use of a celebrity’s identifiable persona would lead to injunctions.
However, Gautam Gambhir v. D.A.P. & Co. (2017) exposed the incoherence in this evolution. The Delhi HC refused to grant relief for the unauthorised use of the plaintiff’s name in a restaurant, emphasising the absence of consumer confusion, reputational harm, or commercial misappropriation. This reasoning directly contradicts Titan Industries, where proof of falsity or confusion was deemed unnecessary. The divergence stems partly from analytical conflation: The court in Gautam Gambhir viewed the claim through trademark law, while earlier cases grounded publicity in privacy or tort. This confusion between personality rights (rooted in dignity and autonomy, as recognised in the Auto Shankar Case) and publicity rights (rooted in the economic value of identity, as in Haelan Labs v. Topps Chewing Gum in the U.S.) continues to plague Indian jurisprudence.
Recent cases, including the Delhi HC’s interim orders in Sadhguru and Ankur Warikoo, deepen this doctrinal uncertainty. In both, relief was granted against AI-generated or impersonating content without examining consumer confusion, intent to deceive, or proven reputational harm. In sum, Indian courts have transformed a dignity-grounded privacy claim into a doctrine of publicity rights.
The Puttaswamy Expansion: Conflating Autonomy with Economic Exclusivity
Two decades later, the doctrinal inconsistency was reinforced in Puttaswamy case, where the nine-judge Supreme Court bench unanimously declared the right to privacy as a fundamental right. In his concurring opinion, Justice Sanjay Kishan Kaul held that publicity rights fall within the ambit of privacy. Citing the U.S. decision in Haelan Laboratories v. Topps Chewing Gum, he opined that every individual should have the right to control the commercial use of their identity, including name and image. Justice Kaul’s intent was to underline the dignity of personhood in the age of mass media. However, his formulation inadvertently merged two distinct logics:
- Privacy and autonomy, which protect individuals from exposure or intrusion, and
- Publicity and economic control, which secure the right to profit from one’s own persona.
By constitutionalising the latter under the ambit of privacy, Puttaswamy transformed a question of commercial misappropriation into one of personal consent (see here). This essentially led to what we see happening now, i.e., almost every unauthorised commercial use is analysed not through the lens of passing off or misrepresentation, but as violation to autonomy and dignity itself.
Judicial Afterlife: The Migration of Privacy Logic into IPR
Post-Puttaswamy, HCs across India, especially Delhi HC, have repeatedly invoked this hybrid reasoning as highlighted here. Decisions such as D.M. Entertainment (Delhi HC, 2010), Titan Industries (Delhi HC, 2012), Anil Kapoor (Delhi HC, 2023), and Jaikishan (Delhi HC, 2024) apply a privacy-based consent standard to disputes that are, in essence, commercial passing off claims. The test of consumer confusion or misrepresentation, central to IPR and tort law, is diluted or entirely ignored. Courts simply assume that if the celebrity is identifiable, the use must be unauthorised and, therefore illegal.
This dangerous confusion, i.e., the transplantation of consent-based logic of privacy onto the confusion-based logic of IPR means that mere identifiability is equated with false endorsement. The Delhi HC’s recent injunctions in personality rights’ cases (such as those filed by Abhishek Bachchan, Aishwarya Rai, Karan Johar) exemplify this tendency. Instead of asking whether a consumer is likely to believe that the merchandise is “official” or “endorsed,” the HC presumes deception from the mere fact of use, an approach rooted less in IPR law than in the constitutional language of privacy and dignity.
Why This Matters: Reclaiming Conceptual Clarity
Understanding this lineage explains why the line between privacy and publicity has blurred so drastically in Indian jurisprudence. Phoolan Devi imported representational control into privacy, and Puttaswamy constitutionalised commercial control under autonomy. Together, they set the ground for the current judicial confusion, where every unauthorised use of identity, commercial or otherwise, is treated as both a privacy violation and a tort of passing off.
This conflation is neither doctrinally coherent nor normatively desirable. It collapses the distinction between harm to dignity and harm to goodwill, between personal autonomy and commercial control. The consequence is overprotection, i.e., the courts end up privileging celebrity control at the expense of public expression, fandom, and creative reuse.
If Indian courts are to develop a sound jurisprudence on personality rights, they must disentangle these frameworks. Privacy law should protect intimacy, dignity, and autonomy. IP law should guard against commercial misrepresentation and unfair exploitation. To continue treating them as one and the same is to perpetuate the very “judicial morass” that the Delhi HCs’ latest orders exemplify.