Deep-fake abuse challenges India’s new Bharatiya Nyaya Sanhita as experts call for stronger laws, definitions, and digital safeguards against AI-driven identity manipulation.
Imagine a video of you shared online where you never spoke or acted . That’s the power and peril of a deep-fake. In India, as synthetic media technologies leap ahead, the urgent question arises: is our criminal law framework ready for such manipulation? The Bharatiya Nyaya Sanhita, 2023 (BNS) sets out the new substantive criminal law . But when it comes to deep-fake abuse-non-consensual fabrication, impersonation, misinformation- there are gaps, calls for amendments and evolving jurisprudence . This article explores how deep-fakes fit (or don’t fit) into BNS, what needs to change and why this matters .
Sections under BNS relevant to deep- abuse
Here we explain the key sections in BNS that can be invoked in deep-fake contexts . Before each list, some context are mentioned to connect how the old framework (Indian Penal Code, 1860 (IPC)) touched these and how BNS adapts them .
1. Offences affecting public tranquillity and misinformation
Before diving into pointers, note that deep-fakes may disturb public order, mislead citizens and impersonate persons . Under IPC there were offences of public mischief, false statements, etc. Under BNS we see updated provisions .
- Section 353(1)(b) of BNS imposes punishment for “making a false statement which is likely to cause alarm or danger to the public” or “spreading a rumour or report which is likely to cause fear or alarm to the public” (or words to that effect) .
- Section 111 deals with organised crime. While not specific to deep-fakes, when deep-fake content is created as part of organised cyber operations it may fall under this umbrella .
- The application is extra-territorial: BNS Section 1(4) & (5) make offences committed beyond India punishable as if committed within India .
2. Offences against women, children, impersonation & non-consensual imagery
Deep-fakes often involve non-consensual sexual imagery or impersonation that violates dignity . Under the IPC there were offences such as voyeurism, assault, etc . The BNS retains many but does not yet explicitly list “deep-fake” creation as a separate offence . Key pointers :
- Offences relating to sexual imagery or assault may still apply – E.g., if a deep-fake depicts someone in a sexual act without consent, existing sections on sexual offences may be used .
- Impersonation or identity theft may be framed as an offence via fraud, cheating or misrepresentation under chapters on property and documents .
- However, BNS currently lacks a dedicated “synthetic media manipulation” clause that names deep‐fakes . Analysts have flagged this gap .
3. Offences against documents and property marks
Since deep-fakes can falsify identity, images or video which may constitute documents or digital records, provisions under BNS for falsification can be relevant .
- For example, if a deep-fake video is made impersonating a public servant, this may intersect with offences under the chapter on “offences relating to documents” .
- While BNS replicates chapters of IPC (Chapter XVIII etc) in structure .
4. General exceptions and liability
Before listing pointers, note that digital technologies often raise questions of intent, knowledge and harm . Under BNS, general exceptions (such as mistake of fact, intoxication, etc) still apply .
- The question of who made the deep-fake, why and how it was distributed is relevant to establishing “mens rea” under BNS .
- BNS retains the concept of attempt, abetment and conspiracy (Chapter IV) . Thus deep-fake fabrication plus dissemination might attract liability for criminal attempt or conspiracy .
Impact
Deep-fake technology has a wide-ranging impact that makes the need for legal clarity urgent . Below are key areas of concern .
- Personal dignity and privacy : A person can be depicted in fabricated video or audio that damages reputation or causes emotional harm . Without explicit deep-fake-specific law, victims may struggle for redress .
- Public order and misinformation : Deep-fakes of political figures or critical events can trigger panic, unrest or electoral interference . The BNS section on false statements (353) becomes crucial here .
- Economic fraud and impersonation : Deep-fakes may be used to impersonate individuals in financial transactions, board rooms or secure systems . The existing provisions on cheating, fraud, property may apply but may lack specificity .
- Technological and enforcement challenges: Detection of synthetic media, attribution of creator/distributor, cross-jurisdiction issues and proving intent all complicate matters . The gap in legal definition may hamper speedy action .
- Chilling effect on free speech: Any overly broad regulation risks stifling legitimate uses of synthetic media (satire, parody, art) . Thus any amendment must balance rights and harms .
Amendments : What needs to change
The current law can be strengthened by adding targeted provisions that acknowledge advances in synthetic media, set clear definitions, calibrate punishments and ensure procedural effectiveness . The following pointers capture the major areas .
- Introduce a specific offence of “creation, dissemination or publication of non-consensual synthetic media (deep-fake) impersonating a person or causing harm” in BNS . This would close the gap noted in literature .
- Define “synthetic media” and “deep-fake” in the statute (as distinct from mere “false statements”), so that courts and investigators have clarity .
- Introduce aggravated penalty where deep-fake impersonates public servant, political figure or affects national security/public peace (link with Section 353 & 111).
- Provide victim-centric provisions, such as right to deletion or takedown, protection of identity of victim and remedies for image rehabilitation .
- Empower investigators with digital forensics mandates, preservation orders, cross-platform takedown obligations and swift interim relief .
- Introduce safe-harbour obligations for intermediaries, coordinated with the Information Technology Act, 2000 and the Digital Personal Data Protection Act, 2023, so platforms are obligated to remove deep-fake content once notified .
- Periodic review clause: given rapid AI development, include a clause that mandates periodic review of the law every few years to keep pace with technology .
Landmark cases
Here are a few notable cases that have brought deep-fakes into legal focus in India . These help illustrate how BNS provisions are being applied and where gaps remain .
- In one reported case from Gujarat, a man was arrested for sharing a deep-fake video of the Prime Minister in a WhatsApp group. He was booked under BNS Sections 197(1)(D) and 353(1)(B) along with IT Act Section 66C .
- Another case from Indore saw an individual uploading altered images of deities and explicit content . The police used BNS Sections 196, 294 and 299 along with IT Act Sections 67/67A .
- Legal commentary (such as from the Observatory for Economic & Security Studies) points out that while the BNS covers false statements and impersonation, courts are still awaiting clear jurisprudence on when a deep-fake becomes an independent offence .
These cases underline how existing sections are being stretched to address deep-fakes, but also that a dedicated statutory treatment would aid consistency and deterrence.
Key changes
Here are the major take-aways summarised :
- The BNS brings in new structural offences (organised crime, terrorism) and extra-territorial reach, which can be leveraged for deep-fake abuse cases .
- Existing sections like 353 (false statement causing public mischief) and 111 (organised crime) provide tools but are not tailor-made for deep-fakes .
- The gap: no dedicated deep-fake offence defined in the statute, which complicates detection, prosecution and sentencing .
- Victim protection, takedown and platform liability remain weakly defined in the BNS; enforcement depends heavily on external frameworks (IT Act, IT Rules) .
- Legal commentators recommend amendment rather than piecemeal application of old provisions—a proactive statute would provide clearer deterrence .
- Technology is evolving fast; the law must be adaptive, with periodic reviews and digital-forensic mandates built in .
- Practically, law-enforcement and judiciary are already using BNS provisions to arrest deep-fake offenders, but consistent jurisprudence is yet to emerge .
Conclusion
Deep-fakes pose a new frontier in criminal law—a blend of technology, identity, reputation, public order and rights . The Bharatiya Nyaya Sanhita, 2023 provides a base structure and incorporates many offences that can be applied to deep-fake harms . But legal experts and practitioners rightly call for amendments: a clear statutory definition of deep-fake abuse, dedicated offences, enhanced victim remedies and duties on platforms . If the law remains reactive, deep-fake misuse will outpace enforcement . For India’s vision of a safe digital space, the BNS must evolve soon to meet this challenge head-on .
Source – PIB
Also read – Bharatiya Nyaya Sanhita, 2023
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