Deepfakes, Misinformation & The Indian Legal Vacuum: The Urgent Need For A Dedicated Deepfake Law
- IJLLR Journal
- 4 days ago
- 2 min read
Priyanshu Bisht, B.A.LL.B. (Hons.), Graphic Era Hill University, Dehradun
ABSTRACT
This paper conducts a doctrinal and comparative analysis of the 'legal vacuum' in Indian law concerning the regulation of generative artificial intelligence and deepfake technology. It argues that existing statutory frameworks, primarily the Indian Penal Code, 1860 (and its successor, the Bharatiya Nyaya Sanhita, 2023) and the Information Technology (IT) Act, 2000, are conceptually inadequate to address the unique harms of synthetic media. The core thesis is that deepfake technology severs the traditional criminal law nexus of mens rea (guilty mind) and actus reus (guilty act), particularly in cases involving autonomous generation from "low-intent prompts".
The analysis demonstrates the specific failures of the IT Act: Sections 67 and 67A create an "obscenity trap," rendering them useless against the significant, non-obscene harms of political misinformation and financial fraud ; Section 66D (cheating by impersonation) is too narrowly focused on financial inducement ; and Section 66E (privacy) is textually inapplicable to the act of synthesis as opposed to the capture of an image. This paper posits that this legal vacuum creates an unavoidable constitutional collision between the fundamental right to privacy and informational autonomy under Article 21 (as articulated in K.S. Puttaswamy v. Union of India) and the right to free expression under Article 19(1)(a) (as protected in Shreya Singhal v. Union of India).
The paper critiques the Ministry of Electronics and Information Technology’s (MeitY) recent attempts to regulate deepfakes via subordinate amendments to the IT Rules, 2021, arguing these moves are constitutionally suspect. The mandate for "proactive detection" is a prima facie violation of the Shreya Singhal precedent, which affirmed Section 79 safe harbours and rejected general monitoring obligations. Furthermore, the paper addresses the acute evidentiary crisis, arguing that Section 65B of the Indian Evidence Act, 1872 (now Section 63, Bharatiya Sakshya Adhiniyam, 2023) contains an "authentication fallacy," as it validates the integrity of the medium but not the authenticity of the content, rendering "pristine" deepfakes admissible.
Drawing on a comparative analysis of international models, including the transparency-led EU AI Act , the specific criminalisation approach of the UK's Online Safety Act , and the failures of overbroad US state laws, this paper rejects mere amendments. It concludes by proposing a sui generis Act as the only constitutionally viable path forward. This proposed framework includes precise definitions, a "trident" of graded liabilities (specific criminal offences, a civil right of action for dignity harms, and mandatory transparency obligations), technical watermarking standards , and a reformed evidentiary burden.
