There has been a surprising rise in ‘digital arrests’ scams, which has been flagged by the security agencies and law enforcement bodies. These scams involve cyber fraudsters posing as law enforcement officials, convincing victims that they are under investigation or have committed a crime. “Deepfake as an outcome of Artificial Intelligence (AI), enables the manipulation of audio and video content, often blurring the lines between truth and fiction,” said Tushar Agarwal, Founder & Managing Partner, C.L.A.P. JURIS, Advocates & Solicitors.
The scamsters tactically put put victims under immense mental stress. They accusing them of knowingly or unknowingly indulging in major crimes or that their close relative is under arrest for any or a combination of these alleged crimes. They employ modern technology as an instrument, advent of deepfake technology has been for the purpose to fabricate evidence and coerce individuals, highlighting significant gaps in India’s legal framework. “Although some relief can be sought under existing statutes such as the Information Technology Act, 2000 (IT Act), and the Bharatiya Nyaya Sanhita, 2023 (BNS), these laws are insufficient to address the complexities posed by deepfakes,” said Tushar Kumar, Advocate, Supreme Court of India.
During the course of so-called investigation, The targets are manipulated to maintain continuous video contact, effectively holding them hostage to the fraudulent demands of the scammers.
There are significant challenges due to the absence of dedicated legislations creates challenge for the law enforcement agencies. “Provisions like Section 66D of the IT Act and Section 319 of the BNS apply to cases involving Fraud and Extortion through Impersonation, while other Sections address related offenses such as Forgery (Section 336), Defamation (Section 356), and Violations of Women’s Dignity (Section 79),” he adds.
The rapid evolution of deepfake technology, coupled with its transnational nature, complicates jurisdiction, enforcement, and evidence collection, leaving both individuals and institutions vulnerable.Tushar Kumar, Advocate, Supreme Court of India.
Nishant Datta, Advocate, Delhi High Court outlines two broad categorizations of Deepfake related offences such as offences against individuals especially women and the rest which can essentially be said to be intended to cause mischief to mislead society in general or social unrest such as falsely depicting political leaders and heads of States making statements intended to trigger national and/or geo-political tensions. Further highlighting a third category of deepfakes which can also be carved out which may be harmless but are likely to cause ridicule or otherwise be said to cause only civil breaches pertaining to intellectual property rights and right to privacy.
He draws a comparison with TRAI’s move for curbing OTP scams, and recommends the appropriate government departments under the Ministries of Law and Justice and Information and Technology to create awareness about deepfakes and more importantly about deepfake detection software such as BioID Deepfake Detector.
Initiatives to educate the public about the dangers of deep fakes and promote digital literacy can empower individuals to recognize and report manipulative content.Nishant Datta, Advocate, Delhi High Court
In the context of penalty, Section 66C dealing with identity theft invites a penalty of upto three years in jail and fine upto ₹1 lakh; Section 66D dealing with cheating by personation by using computer resource could invite imprisonment for up to three years and fined up to ₹1 lakh; and Section 66E dealing with violation of privacy of IT Act invites jail term up to three years in jail or a fine of ₹2 lakh, or both. “Under BNS, Section 319 states that if a person is said to be cheating by personation if he cheats by pretending to be some other person, or by knowingly substituting one person for or another, or representing that he or any other person is a person other than he or such other person really is,” said Faraz Alam Sagar, Partner (co-head – white collar & investigations), Cyril Amarchand Mangaldas.
He says, “There is no concept of Digital arrest under BNS and Bharatiya Nagrik Suraksha Sanhita, 2023.”
Further outlining the remedy in case of “Digital Arrest” from the existing legal provisions under BNS. He adds, “Section 319 of the BNS deals with cheating by personation and the punishment prescribed for cheating by personation is imprisonment for a term which may extend to five years, or fine, or both.”
Cyber cells should create an exclusive platform/ number where there could be regular reporting on alleged digital arrest to ensure transparency and accountability.Faraz Alam Sagar, Partner (co-head – white collar & investigations), Cyril Amarchand Mangaldas
These incidence has forced Indian Cyber Crime Coordination Centre (I4C) – an initiative of the Union Ministry of Home Affairs – to issue an advisory that there is no such thing as digital arrest and law enforcement bodies are not mandated to arrest an individual on a video call. “The Indian Cyber Crime Coordination Centre (I4C) is addressing these scams by blocking cybercriminal tools and raising awareness through its “Cyberdost” platform,” said Saurav Agrawal, Advocate, Delhi High Court
These arrests are made through impersonation. Recently, a “digital arrest” was made impersonating Chief Justice DY Chandrachud. In India, “Personality rights are protected under Articles 19(1)(a) and 21, especially for public figures. In the landmark Anil Kapoor case, the Delhi High Court restrained the unauthorized use of the actor’s likeness, name, and voice through deepfake technology, setting a precedent for the protection of one’s persona from misuse,” he adds.
Legislative measures should impose strict penalties for creating or distributing malicious deepfakes, alongside mandates for social media platforms to proactively monitor and remove such content using automated detection tools.Saurav Agrawal, Advocate, Delhi High Court
The different has opted for different address mechanism which ranges from public campaign to regulatory challenges.
One of the ways in which countries such as China are approaching such regulation is to require providers of deepfake technologies to obtain consent of those in their videos, verify the identities of users, and offer recourse to them.Tushar Agarwal, Founder & Managing Partner, C.L.A.P. JURIS, Advocates & Solicitors.
Impersonating high ranking government officials to extort money or sensitive information from individuals (after placing them under ‘digital arrest’), is one of the many wrongdoings of Deepfake digital content created through AI. “Digital arrest is chicanery at best, and a scam technique used by scammers to misguide the ignorant public, making them believe that they are in fact under a digital arrest, as the scammer impersonates high ranking officials through the use of deepfake, which often is very convincing to the target,” said Rajiv Sharma, Partner, Singhania & Co.
In India there is a provision of physical arrest or home arrest, both are executed by the police officials, who personally visit to execute such an arrest, that too after showing the relevant arrest warrant. No one in India is authorized to carry out digital arrest and this is the message at large to all the innocent people who may fall prey to the tricks by the fraudsters.Rajiv Sharma, Partner, Singhania & Co.
The cybercrimes are way ahead of current legislations. However India’s legal system addresses “digital arrests” through the Bhartiya Nyay Sanhita (BNS) and Information Technology Act. “Victims can report incidents via the National Cyber Crime Reporting Portal (www.cybercrime.gov.in) or approach local authorities, as these crimes fall under multiple sections of the BNS and IT Act,” said Navaneeta Kanjilal, Independent Legal Consultant
However, the existing provisions are interpreted to tackle the menace of deepfake and were not formulated in the first place for directly addressing deepfake technology in present sense. “The concern of deepfake has gained the acute attention of the Delhi High Court wherein the Court directed the Central Government to consider promulgating a framework to safeguard the fundamental rights guaranteed by the Constitution of India, 1950. It was observed that deepfakes are menace to the society,” said Suvigya Awasthy, Partner, PSL Advocates & Solicitors.
The proposed Digital India Act (DIA) aims to protect users from cybercrimes, regulate the use of AI technologies, and foster a safer online environment, reinforcing efforts to address the challenges posed by deepfakes and other digital threats.Navaneeta Kanjilal, Independent Legal Consultant
By applying intense psychological pressure on victims, the cyber-criminal intends to extort large sums of money by falsely threatening their arrest, adds Suvigya Awasthy.
A novel modus operandi employed by cyber-criminals involves sending a message or making a video call to a person often introducing themselves as law enforcement officials and falsely projecting the levying of serious criminal allegations against the innocuous individual.Suvigya Awasthy, Partner, PSL Advocates & Solicitors
Yatharth Rohila, Advocate & Partner, Aeddhaas Legal LLP highlights that the Criminal Procedure Code governs the handling of digital evidence, while the pending Personal Data Protection Bill aims to enhance data privacy and penalties for breaches.
Key developments could include stronger cyber laws addressing new digital crimes like deepfakes and AI-driven fraud, and enhanced collaboration with international agencies such as INTERPOL to tackle cross-border cybercrime.Yatharth Rohila, Advocate & Partner, Aeddhaas Legal LLP
Shimpy Arman Sharma, Partner, Anand Sharma & Associates highlights that the instances of Deepfake and digital arrest are on rise in India. “In India, laws addressing deepfakes and related digital offenses are still evolving, however there are certain provisions in the existing laws such as Section 66E (Violation of Privacy), Section 66F (Cyber Terrorism) and Section 67 (Publishing Obscene Material): of the Information Technology Act, 2000, Copy right Act 1957, Section 336 and Section 356 of Bhartiya Nyaya Sanhita, 2023 which may apply in case of deep fake or digital arrest,” she adds.
Even though there are certain relevant laws and constitutional protection for deepfake and digital arrest still there is a need to improvise the laws. The Government of India has taken certain initiative in this direction,Shimpy Arman Sharma, Partner, Anand Sharma & Associates
Indian Laws are still requires a lot of framework and regulation. “However, under the Information Technology Act, claim for damages, harassment or fraud under provisions relating to identity theft, data tampering, and cybercrime can be made. One can also prosecute under Section 66E (violation of privacy) and Section 67 (obscene content),” said Alay Razvi, Managing Partner, Accord Juris.
Protection from digital arrest would likely fall under existing provisions of the IT Act, and the Indian Penal Code (IPC) for fraud and misrepresentation.Alay Razvi, Managing Partner, Accord Juris
Further adding that strengthening cyber forensic capabilities, raising public awareness, and creating special judicial provisions for digital impersonation will be key.
Sonal Alagh, Partner, Alagh & Kapoor Law Offices said, “The government should consider enacting specific legislation that targets AI-generated impersonations and deepfake technology. Additionally, deploying AI-powered deepfake detection systems, raising public awareness, and creating digital literacy programs are critical steps in safeguarding individuals and businesses.”
The need for regulatory clarity and effective enforcement mechanisms is urgent as deepfakes continue to evolve, posing serious risks to individuals and society.Sonal Alagh, Partner, Alagh & Kapoor Law Offices
