The Theft of the Face: Can the 'Right to Personality' survive the Deepfake Apocalypse in Indian Elections?

The Author, Akansha Toppo is a Law student at National Law Institute University, Bhopal.

INTRODUCTION: THE SPEECH THAT NEVER HAPPENED

Let’s start with a scary thought experiment.

Imagine it’s 48 hours before voting day in your constituency. You are scrolling through WhatsApp or Instagram. Suddenly, a video pops up. It’s the Chief Minister. The lighting is perfect. The voice is raspy and familiar. The background noise sounds exactly like a busy rally.

In the video, he looks straight into the camera and says, "I hate the people of this district. They are uneducated and I don't need their votes."

Your blood boils. You forward it to your family group. Within an hour, it’s on every phone in the state. Riots break out. The Opposition party calls for a strike. The polling numbers swing wildly.

Six hours later, a forensic lab in Hyderabad releases a report: The video is 100% fake. The Chief Minister was actually sleeping when that video was made. An AI tool cloned his voice from YouTube, mapped his face onto an actor’s body, and lip-synced the text.

But here is the tragedy: It doesn't matter that it’s fake. The damage is done. The human brain is wired to believe what it sees. By the time the truth puts on its shoes, the lie has already run a marathon around the world.

This isn't science fiction. From the "Rashmika Mandanna" deepfake scandal to politicians using AI clones in the 2024-2025 elections, we are living in the "Post-Truth Era." As law students, we have to ask: Does the law protect your face? Or are we fighting a nuclear war with a bamboo stick?

THE LEGAL VOID:  "RIGHT TO PERSONALITY"

If you search the Indian Constitution or the Indian Penal Code for the words "Personality Rights," you will find nothing. Zero. Zilch.

So, where does this right come from? It is a "judge-made" law, stitched together from two very different fabrics:

1. The Right to Privacy (Article 21):

The Supreme Court in the famous Puttaswamy[1] judgment held that privacy isn't just about hiding your diary. It’s about controlling your identity. You own your face. You own your voice.

2. The Tort of "Passing Off":

This is a commercial concept. If I sell a cheap perfume and put Shah Rukh Khan’s photo on it without paying him, I am "passing off" my product as his endorsement.

For decades, this was enough. The law was simple: Don't use a celebrity's photo to sell soap. But AI deepfakes aren't selling soap. They are selling lies. They are hijacking a person's identity not to make money, but to destroy their reputation or manipulate an election. This is where the old laws start to crack.

THE JUDICIAL SHIELD: HOW ANIL KAPOOR CHANGED THE GAME

While the Parliament was busy drafting new codes, the Delhi High Court stepped up as the first line of defense.

1. The "Big B" Order (2022)

In Amitabh Bachchan v. Rajat Nagi[2], the legend himself went to court. People were using his heavy baritone voice for lottery scams and unauthorized ads. The Court issued a "John Doe" order (an order against unknown people) restraining the world at large from using his voice or image. This was the first hint that your "persona" is your intellectual property.

2. The Anil Kapoor Judgment (2023)[3]

This is the blockbuster case. Here, the defendants were using AI to create "morphed" GIFs and videos of actor Anil Kapoor for commercial gain. They argued it was "freedom of expression." Justice Prathiba M. Singh didn't buy it. She ruled that the "Right to Personality" isn't just about physical photos. It extends to technological simulations.

Why is this huge? Because the Court explicitly said that AI tools cannot be used to steal a person's "likeness." If you use AI to make Anil Kapoor say a dialogue he never said, you are violating his fundamental right to livelihood and privacy. This judgment is currently the strongest weapon we have against political deepfakes.

THE STATUTORY VACUUM: DOES THE NEW BNS HELP?

We recently replaced the old IPC with the Bharatiya Nyaya Sanhita (BNS), 2023. It was supposed to be a modern code for a modern India. But does it tackle Deepfakes?

The answer is... yes and no. There is no section titled "Deepfakes." However, we can perform some legal gymnastics to make the sections fit.

• Forgery (Section 336 BNS): Historically, forgery meant faking a signature on a paper document. But under the new law, an "electronic record" is also a document. So, if you create a fake video of a politician, you are essentially "forging" a document to harm his reputation. It’s a stretch, but it works.
• Cheating by Personation (Section 319 BNS): If an AI clone calls you and asks for donations pretending to be a candidate, this is clear-cut cheating.
• Defamation (Section 356 BNS): Deepfakes are the ultimate defamation machine. Defamation usually deals with words. But a deepfake is visual. It’s far more damaging.

The problem? These are regular criminal laws. They take years to prosecute. In an election, you don't have years. You have days. If a deepfake goes viral 24 hours before voting, filing a BNS case is like calling the fire brigade after the house has already burnt down.

THE 2024-2026 SHIFT: THE GOVERNMENT WAKES UP

Realizing that the courts are too slow for the speed of the internet, the government has started using "Executive Orders" to fight back.

1. The "Advisory" Culture-

 After the Rashmika Mandanna scandal in 2024, the Ministry of Electronics and IT (MeitY) stopped asking nicely. They issued strict advisories to platforms like Facebook, YouTube, and X (Twitter). The rule is now simple: Deepfakes fall under "impersonation" (Section 66D of IT Act). If a user reports one, the platform has 36 hours to take it down. If they fail, they lose their "Safe Harbor" protection (meaning the platform itself can be sued).

2. The IT Rules Amendment (The "Watermark" Era)-

This is the latest development. The government is pushing for what we call "Originator Traceability" and "Labeling." New amendments suggest that any AI-generated content must carry a visible label or watermark. You might have seen "Generated by AI" tags on Instagram recently. That isn't charity; it's compliance. The idea is to alert the voter: "Hey, what you are seeing isn't real."

3. The Election Commission’s "Red Line"

In the recent election cycles, the Election Commission of India (ECI) finally stepped in. They issued a warning to political parties: Don't use children in campaigns, and don't use Deepfakes to distort the opponent's image. They even went a step further—if a party uses AI to enhance their own leader (like making them look younger or speak a different language), they must disclose it. Transparency is the new currency.

THE GREY AREA: IS SATIRE DEAD?

Here is the counter-argument, and it’s a strong one. What about comedy? If I use AI to make a funny video of a politician dancing to a Bollywood song, is that a crime? Or is it my Freedom of Speech (Article 19)?

Satire is a crucial part of democracy. We have always drawn cartoons of leaders. Deepfakes are just "digital cartoons," right? Well, not exactly. A cartoon looks like a cartoon. You know it’s a joke. A deepfake looks like reality. When a joke becomes indistinguishable from the truth, it stops being comedy and starts being disinformation.

The law is struggling to draw this line. If we ban all deepfakes, we kill comedy. If we allow them, we kill the truth. It’s a classic Catch-22.

CONCLUSION: THE WAR ON REALITY

So, does the "Right to Personality" survive the AI apocalypse? Barely. It’s gasping for air.

The Anil Kapoor judgment gave us a shield. The IT Rules gave us a sword. But let’s be honest—the technology is evolving faster than any judge can write a verdict. Today, we can clone a voice with 3 seconds of audio. By next year, we might be able to generate entire real-time video calls that are impossible to distinguish from reality.

For us, the future lawyers of India, the battleground of the next decade won't be about land disputes or contract breaches. It will be about reality itself. The question won't be "Did he do it?" The question will be "Is that even him?"

We need a dedicated "Digital Personality Rights Act"—a specific law that criminalizes non-consensual deepfakes. We need to stop trying to fit AI crimes into 1860s laws. Until then, we are all just one bad algorithm away from being made to say things we never thought.

And that is a terrifying place to be.

References:

Picture Source :