REGULATION OF DEEPFAKES AND AI GENERATED EVIDENCE IN INDIAN COURTS

Introduction

In the contemporary Indian litigation landscape, the admissibility of artificial intelligence generated synthetic evidence tests the limits of judicial gatekeeping, requiring novel regulatory mechanisms to safeguard the constitutional mandate of a fair trial against hyper realistic manipulation. The intersection of Indian legal system and artificial intelligence represents a paradigm shift in how evidence is generated, evaluated, and scrutinized.

Evaluation of generative AI and Deepfakes

From simple text generation, generative artificial intelligence has advanced to hyper-realistic video, audio, and images synthesis (Deepfakes). Nowadays swap faces, clone voices or create entirely fabricated events became very common with increase in using of technologies like Generative Adversarial Networks (GANs) and diffusion models. Just a few years ago altering any digital media required manual editing via software like After Effects or Adobe Photoshop and Those alterations left clear forensic artifacts, such as pixel blending anomalies, inconsistent lighting or irregular metadata. Modern Generative AI has completely bypassed manual editing and it uses machine learning models to generate a complete new synthetic media based on prompts or training datasets from scratch.

Why Indian courts are increasingly confronted with AI generated content

Due to India’s rapid digital expansion Indian courts are increasingly confronting with AI generated content and the digital expansion driven by cheap mobile data, lack of digital literacy and high smartphone penetration. So, substantive offenses and fabricated evidence these are the two distinct categories of AI generated content which appears in Indian courtrooms.

1. Substantive Offences –

In modern India for committing a crime deepfakes are being used as tools. And those substantive offenses include financial fraud like cloning a CEO’s voice to authorize wire transfers, cyber-extortion like generating non-consensual intimate imagery to blackmail victims and Political disinformation like synthesizing video of politicians.

2. Fabricated Evidence –

Recently, litigants increasingly using AI generated audio recording, video clips or electronic documents to support their case as evidence. Because of the mere existence of deepfakes court gives defendants a defense technique known as Liar’s Dividend by using this they can claim that legitimate, incriminating digital evidence is actually an AI generated deepfakes, casting doubt on real proof.

Research Question

Does India’s current legal framework adequately regulate deepfakes and the admissibility of AI generated evidence?

So, this question is all about that our traditional statutes can handle synthetic media or not. Whether the judiciary has technical resources to prevent wrongful convictions without restricting constitutional freedoms and does our newly enacted criminal laws provide adequate protections or not.

Legal Background and Statutory Evaluation

• Information Technology Act, 2000 [1]–

The IT Act was designed well before the advent of modern generative AI but it remains India’s foundational cyber law. To address the synthetic media in a dispute, prosecutors mainly rely on some specific sections which includes section 66C, section 66D, Section 66E, and section 79. In section 66C it was given that using a person’s biometric features or passwords and electronic signatures are punishable. Section 66D criminalizes cheating by personation by using communication device or computer resource. According to section 66E it prohibits the violation of privacy by capturing, publishing or transmitting images of a person’s private areas without consent. And section 79 talks about intermediary safe harbor, it shields Internet intermediaries like any social media platforms from liability for third party content.

• Bharatiya Sakshya Adhiniyam (BSA), 2023 [2]–

The Indian Evidence Act, 1872 was replaced by Bharatiya Sakshya Adhiniyam in 2023 it updates the rules for electronic evidence to match modern technological shifts. Section 63 of BSA, 2023 provides that any electronic record to produce in the court must be accompanied by a specific certificate confirming the integrity of the device. This section assumes that a digital data is generally generated by an ordinary Machine recording real world events like a CCTV camera or phone recorder but it does not account for instances like some files accompanied by a signed certificate may contains data generated entirely by an AI model. These specific things Creates a regulatory gap in our judicial system where synthetically altered evidence can technically comply with admissibility rules.

• Bharatiya Nyaya Sanhita (BNS), 2023 [3]–

The Indian Penal Code was replaced by BNS in 2023 it doesn’t include any statutory laws for deepfakes or AI generated content instead of that it includes forgery provided in section 336 and 340 and defamation provides in section 356 of BNS. Making a false document or electronic record with the intent to cause damage or injury to a person or damaging an individual’s reputation by using those deepfakes or AI generated data comes under the provisions of Bharatiya Nyaya Sanhita, 2023.

• Digital Personal Data Protection (DPDP) Act, 2023 [4]–

This act regulates how personal data is collected and processed by that it protects individuals against deepfakes. It prevents biometric and behavioral data manipulation without explicit consent, under section six of the DPDP Act which requires clear, unconditional consent for data processing. This act mainly focuses on corporate data fiduciaries than individuals.

Evolution of Supreme Court jurisprudence on electronic evidence

1. Anvar P.V. v. P.K. Basheer (2014) – To protect the courts from tampered digital evidence the Supreme Court ruled that electronic evidence is secondary evidence and it must be accompanied by a signed certificate to be admissible in court.[5]
2. Shafhi Mohammad v. State of Himachal Pradesh (2018) – The court temporarily relaxed the requirement of a signed certificate for admissibility by ruling that a certificate can be waived.[6]
3. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) – In this case the court reaffirmed that a certificate is a mandatory requirement and every electronic evidence must require strict verification. It remains the primary defense against fabricated evidence, but it places a heavy technical burden on the trial process.[7]

Recent Developments

• MeitY Advisories and Intermediary Due Diligence –

The Ministry of Electronics and Information Technology (MeitY) issues targeted advisories to stop the spread of Synthetic Misinformation under the IT rules. It provides that intermediaries need to ensure that for identifying a modified content’s synthetic origin, there must be a visible watermarks or labeling. If there is any non-consensual intimate deepfakes or content threatening public order, platforms are need to remove the material within 24 to 36 hours. It advises platforms that they must state in their user agreements that creating or sharing any deepfakes which impersonate others and spread misinformation is prohibited and it can be led to account termination and criminal prosecution.[8]

• Judicial observations on synthetic evidence –

There are unique challenges in the Indian court posed by synthetic media. In the custody disputes or matrimonial disputes courts encounter audio recordings regularly which one party claims have been altered by using AI. That’s why judges Increasingly orders that files must be undergo by a Central Forensic Science Laboratory (CFSL) to verify their hash values before admitting them into evidence.

• The role of forensic tools in investigations –

Agencies which are enforced by the law uses advanced software to verify electronic evidences and to counter the “liar’s dividend”. Investigating officers search a files hash value after immediately seizing electronic device. If there is any change to the file even by a single pixel it reveals that the evidence has been tempered with. To inspect compression artifacts, identifying the frame-by-frame anomalies left behind by generative AI tools and for examining metadata structures they used programs like AMPED FIVE and Magnet Forensics.

Critical Legal and Constitutional Analysis

• Constitutional Crosswinds: Privacy vs. Free Speech

In the regulation of deepfakes we need to balance two fundamental rights protected under the Indian Constitution, one is the right to privacy (Article 21) and the other is freedom of speech and expression (Article 19 (1) (a)).

 In K.S. Puttaswamy v. Union of India it was established that the right to privacy includes an individual’s control over their likeness, identity, body and personal narrative. Deepfakes violates this by using their vocal and physical identity without consent. This can lead psychological harm, financial loss and reputational damage to the victim.[9]

Freedom of speech and expression under Article 19 protects creative expression including Satire, political caricature, parody and artistic critique.

• Trial Dynamics: Evidentially Reliability and Wrongful Convictions –

The burden of authentication fall upon the party presenting the digital evidence under section 63 of the BNS. The party must prove its authenticity before the court, in case of dealing with any deepfakes then the requirement can lengthen as forensic experts needs to be called to testify on algorithmic properties and file structures.

During the trial in criminal law the presumption of innocence has been erased as the prosecution must prove guilt beyond a reasonable doubt. So, if a prosecutor presents an AI generated video which proof that the defendant is guilty and the defense doesn’t have the technical resources to prove it as an AI generated video, the court have to make a decision based on the fabricated evidence and it leads to increase the risk of wrongful convictions specially in lower courts which lacks access to advanced forensic support.

Conclusion

Indian legal system requires structural updates to protect citizens from synthetic misinformation and maintain public trust in digital evidence.

1. The judiciary should establish uniform evidentiary standards for digital evidence there must be clear forensic protocols assured that all digital recordings submitted sensitive matrimonial or criminal matters include verifiable meta data and cryptographically signed chains of custody.
2. India needs to invest more in judicial forensic for expanding its infrastructure. Lower trial courts also should have access to cyber forensic units for analyzing the file in the litigation process reducing backlog.
3. For a direct legal framework on the deepfakes and AI, the BNS should be amended to include clear definitions and specific penalties for the distribution and creation of deepfakes.
4. India should implement a structured judicial training because judges need to understand the field of AI and deepfakes as they are not relatable to that. They need to trained about how hash operates, the limitations of AI detection software, and learn how to evaluate expert technical testimony effectively. The National Judicial Academy and state alternatives should arrange programs focused on digital forensics for better judgments.

References

[1] The Information Technology Act, No.21 of 2000, Acts of Parliament, 2000, section 66c, 66d, 66e, 79 (India).

[2] The Bharatiya Sakshya Adhiniyam, No. 47of 2023, Acts of Parliament, 2023, section 63 (India).

[3] The Bharatiya Nyaya Sanhita, No. 45 of 2023, Acts of Parliament, 2023, section 336 and 356 (India).

[4] The Digital Personal Data Protection Act, No. 22 of 2023, Acts of Parliament, 2023, section 6 (India).

[5] Anvar P.V. v. P.K. Basheer, (2014) 10 S.C.C. 473 (India).

[6] Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 S.C.C. 801(India).

[7] Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 S.C.C. 1 (India).

[8] MINISTRY OF ELECTRONICS AND INFORMATION TECHNOLOGY, Advisory on Due Diligence Obligations of Intermediaries Regarding AI Generated Content, No. 2(4) / 2024- cyber 4 (Issued on March 15, 2025) metiy.gov.in.

[9] K.S. Puttaswamy v. Union of India, (2017) 10 S.C.C. 1 (India).