The use of artificially generated deepfakes as a weapon poses a constitutional dilemma and finds no answers in the current Indian law. The dissemination of fake audiovisual material about public officials and all sorts of political actors, including candidates, not only damage reputations but also the discursive arena that is a prerequisite for democratic self-governance. While much has been written around the Puttaswamy privacy framework, the ShreyaSinghal proportionality matrix, and most recently the Digital Personal Data Protection Act, 2023, the response to how to calibrate free speech under Article 19(1)(a) of the Indian Constitution vis-a-vis its legitimate restrictions under Article 19(2) has not produced a coherent doctrinal framework. You are based everywhere until October 2023, and this article helps fill a major void in the present legal scholarship and legislative design.
This paper formulates three interrelated arguments using an interdisciplinary synthesis of democratic theory and communication sciences, a critical comparative approach as well as doctrinal constitutional analysis. To start with, deepfakesare a different form of speech, a sort of epistemic sabotage that very little fits into the normal definitions for incitement, sedition or defamation. Second, the current landscape of regulation represented by the Representation of the People Act 1951, DPDP Act 2023 and Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 is asymmetrical in nature and procedurally incoherent which fails to protect democracy's epistemic conditions for participatory engagement as put forth.
Third, the article presents the Threshold-Reasonableness-Intent-Discourse (TRID) Framework, which is a new doctrinal standard with four operationalized criteria to help legislators and courts determine whether any particular deepfake regulation passes constitutional muster without endangering the pluralism that Article 19(1)(a) seeks to protect.
The paper ends with a set of concrete institutional responses that provide legislators (or someone) with a roadmap toward conformity constitutional or near as practical impact, such as an amendment to Schedule III of the Representation of the People Act; and Deepfake Electoral Integrity Protocols.