Deepfake Defamation and Synthetic Forgery: Criminal Liability under Sections 356 and 336 of Bharatiya Nyaya Sanhita 2023

I. I. The Proliferation of Hyper-Realistic Synthetic Media in India

The democratization of generative artificial intelligence and latent diffusion models has lowered the barrier for generating photorealistic synthetic audiovisual media, commonly designated as deepfakes. While early iterations suffered from noticeable visual artifacts, modern multi-modal generative networks can synthesize a human subject's facial expressions, vocal prosody, and physical demeanor with flawless fidelity. In India, this technological capability has triggered an unprecedented wave of non-consensual synthetic media targeting corporate executives, public figures, journalists, and private individuals.

The legal and societal ramifications of malicious synthetic media are profound. Malefactors utilize deepfakes for sophisticated corporate extortion, unauthorized celebrity commercial endorsements, political disinformation, and non-consensual sexually explicit material (NCSEM). In corporate environments, synthetic voice cloning of Chief Executive Officers has facilitated massive Business Email Compromise (BEC) wire transfers, while fabricated video releases have manipulated equity market capitalizations within minutes.

Prior to 2024, law enforcement and victims relied on a fragmented combination of provisions under the Indian Penal Code 1860 and the Information Technology Act 2000. With the complete operationalization of the Bharatiya Nyaya Sanhita, 2023 (BNS 2023) and the Bharatiya Sakshya Adhiniyam, 2023 (BSA 2023), Indian criminal jurisprudence has introduced modernized statutory mechanisms specifically designed to punish synthetic falsehoods and digital impersonation.

II. II. Criminal Defamation under Section 356 BNS and the Right to Dignity

Section 356 of the Bharatiya Nyaya Sanhita 2023 consolidates the criminal law of defamation, penalizing whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm the reputation of such person. When a deepfake video depicts an individual engaging in illicit conduct or uttering statements they never made, the creator and distributor make an explicit 'visible representation' under Section 356.

In *Subramanian Swamy v. Union of India* (2016 7 SCC 221), the Supreme Court of India established that the right to reputation is an inseparable component of the fundamental right to life and personal dignity guaranteed under Article 21 of the Constitution. The Court affirmed that freedom of speech under Article 19(1)(a) is strictly subject to reasonable restrictions under Article 19(2), which explicitly includes defamation.

A deepfake video represents a malicious subversion of free expression. Because deepfakes bypass textual ambiguity and present an immediate sensory illusion of factual truth, their capacity to inflict irreparable reputational ruin is exponential. Under Section 356(2) of the BNS 2023, offenders face simple imprisonment for a term which may extend to two years, or with fine, or with both, or community service.

III. III. Electronic Forgery under Section 336 and Identity Theft under the IT Act

Beyond defamation, the generation of synthetic media constitutes severe electronic forgery. Under Section 336 of the BNS 2023, whoever makes any false document or false electronic record with intent to cause damage or injury to any person, or to support any claim or title, commits forgery. Section 340 specifically defines forged electronic records, criminalizing the creation of synthetic digital recordings that dishonestly deceive the public into believing they originated from the victim.

Furthermore, the Information Technology Act 2000 provides overlapping penal sanctions. Section 66D penalizes cheating by personation by using any computer resource, prescribing rigorous imprisonment up to three years. Where deepfakes involve sexually explicit manipulations, Section 66E (violation of bodily privacy), Section 67 (publishing obscene material in electronic form), and Section 67A (publishing sexually explicit acts) apply immediately, imposing non-bailable criminal liability.

In corporate wire fraud contexts, generating a synthetic audio clone to authorize fund transfers constitutes criminal breach of trust under Section 316 BNS, cheating under Section 318 BNS, and extortion under Section 308 BNS, triggering multi-jurisdictional investigations by State Cyber Crime Divisions and the Enforcement Directorate (ED).

IV. IV. High Court Precedents: Kamya Buch, Arijit Singh, and Dynamic Injunctions

Indian superior courts have demonstrated decisive judicial leadership in curbing deepfakes. In the landmark case of *Ms. Kamya Buch v. Unknown & Ors.* (Delhi High Court, 2024), the court addressed the widespread dissemination of non-consensual deepfake pornography targeting an influencer, ordering intermediaries to immediately take down the offending URLs within 24 hours and directing internet service providers to block access to host domains.

Similarly, in *Arijit Singh v. Codible Ventures LLP & Ors.* (Bombay High Court, 2024) and *Anil Kapoor v. Simply Life India & Ors.* (Delhi High Court, 2023), the courts recognized that an individual's voice, likeness, image, and persona constitute valuable intellectual and personality rights under common law and Article 21. The High Courts issued expansive 'John Doe' (Ashok Kumar) dynamic injunctions restraining unauthorized commercial voice cloning and synthetic impersonation across the digital ecosystem.

These rulings establish that digital platforms cannot shelter behind intermediary safe harbors under Section 79 of the IT Act when they possess actual knowledge or receive court orders regarding defamatory synthetic media. Failure to expeditiously remove deepfakes strips platforms of statutory immunity, exposing them to civil damages and criminal abetment prosecution.

V. V. Evidence Preservation and Section 63 BSA Electronic Certification

Prosecuting deepfake crimes and securing emergency civil relief requires rigorous forensic due diligence. Because digital evidence is highly volatile and susceptible to rapid deletion by perpetrators, victims must immediately capture complete digital forensics snapshots. Under Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 (replacing Section 65B of the Indian Evidence Act 1872), electronic records are admissible only when accompanied by a mandatory statutory certificate.

Forensic investigators must extract cryptographic hash values (SHA-256), capture uncompressed video streams, document network packet headers, and preserve metadata verifying the exact date, time, and IP address of publication. In deepfake litigation, presenting specialized forensic expert reports detailing generative model architecture markers—such as frequency domain anomalies, irregular corneal reflections, and temporal audio phase incoherence—is essential to proving synthetic fabrication.

Intermediaries must be served with immediate preservation notices under Section 79(3)(b) of the IT Act and Section 94 of the Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS), compelling the retention of server logs, user registration records, and upload telemetry before digital trails are purged.

VI. VI. Chambers Defense Strategy and Emergency Courtroom Representation

Advocate Ritik Khurana Chambers provides emergency legal representation to victims of malicious synthetic media, as well as institutional counsel to corporations targeted by deepfake extortion syndicates. Our team specializes in securing immediate ex-parte ad-interim injunctions and dynamic takedown orders from the High Court of Punjab & Haryana and the Delhi High Court within hours of publication.

Simultaneously, our criminal practice files comprehensive complaints under Sections 336, 340, and 356 BNS 2023 alongside Sections 66D and 67A IT Act before State Cyber Crime Cells, coordinating with nodal cyber officers to freeze perpetrator accounts and secure digital chain of custody. For corporate clients, we establish proactive synthetic media incident response protocols, crisis communication governance, and employee voice verification safeguards.

In an era where synthetic reality threatens the fabric of human reputation, proactive legal enforcement combined with forensic rigor is the only barrier against algorithmic defamation.