POST-MORTEM PRIVACY RIGHTS AND AI DEEPFAKES: LEGAL STATUS IN INDIA (2026)

Even by 2026 India’s AI, deepfake and post-mortem privacy rights legal structure remains disjointed. Despite privacy having been declared a fundamental right under Article 21 of the Constitution by the Supreme Court’s landmark judgment in Justice K. S. Puttaswamy v. Union of India (2017),^[1] it ceases to exist post death. It, hence, leaves the digital persona of the dead vulnerable to be misused by AI systems for commercial benefit and reputational exploitation. This article critically examines the present, piecemeal approach in the areas of personality rights, copyrights, obligations of online intermediaries under the Information Technology Act, 2000, and the 2026 amendments to the Information Technology Rules regarding synthetic media.

It posits that in light of increasing reliance on digital resurrection, there is a compelling need for comprehensive legislation for India which recognises the right to privacy post death and makes it mandatory for AI developers to obtain the consent of the deceased’s kin before exploiting the digital persona of the deceased. Drawing precedents from judgments by the Delhi High Court, constitutional framework, and various other countries, it lays out the way forward.

Introduction
Constitutional Foundations: Privacy, Dignity, and Their Post-Mortem Limits
Personality Rights Jurisprudence and AI-Generated Content
Legal Governance: The IT Act, 2021 Rules, and 2026 Reforms
Identifying Legal Lacunae and Strategic Litigation
Conclusion

1. Introduction

A new legal challenge, stemming from the rapid advance in generative AI, is the resurrection of dead people into interactive digital characters. From algorithm-generated simulated holograms of deceased musicians to AI chatbots that reproduce the tone, writing, and speech patterns of long-deceased celebrities, “digital resurrection” has evolved from science fiction into a concrete and commercially lucrative phenomenon. In India, “digital resurrection” stands at the nexus of the constitutional right to privacy, copyright and intellectual property regimes, the law of defamation, and the wave of new technology rules — and yet there is no dedicated law for it. As of 2026, no statute under Indian jurisdiction specifically protects privacy post death.

The general legal principles founded on common law — particularly the maxim actio personalis moritur cum persona (a personal action dies with the person) — and Section 306 of the Indian Succession Act, 1925, which terminates all personal causes of action upon death, have posed serious complications for post-mortem privacy rights.

Nevertheless, the Indian courts have not been completely inactive. Apart from a few exclusively post-mortem privacy judgments, the Indian courts have been formulating certain limited remedies for the dead — specifically where the deceased’s personality or name has been used for commercial gain — through a novel approach to personality rights, publicity, and the principle of dignity.

The article discusses all this in six sections: Part II examines the constitutional nature of privacy and its post-mortem limitations. Part III examines the development of personality rights jurisprudence and its relation to AI-created content. Part IV examines the regulatory rules on deepfakes, specifically the 2026 IT Rules amendments. Part V identifies the main deficiencies in the system and proposes legislative additions. Part VI concludes.

2. Constitutional Foundations: Privacy, Dignity, and Their Post-Mortem Limits

2.1 The Puttaswamy Framework

The nine-judge bench in K. S. Puttaswamy (Retd.) v. Union of India^[1] laid the constitutional framework for privacy as a fundamental right in India. The Court unanimously held that the right to privacy is protected under Article 21 of the Constitution and encompasses informational privacy — including the individual’s right to control how their personal data is collected and used — as well as the liberty to determine one’s own life narrative.

Critically, any State encroachment upon privacy must satisfy a tripartite test: legality (the interference must be grounded in law), legitimate purpose (the State must pursue a valid aim), and proportionality (the means must not be excessive in relation to the object).^[2]

The framework in Puttaswamy, however, was designed for the living. The Court’s reasoning on informational privacy contemplates a living person exercising agency over their data. As of 2026, no bench of the Supreme Court has extended the Puttaswamy framework to deceased persons, leaving the state of the law deeply ambiguous. Compounding this, the Digital Personal Data Protection Act, 2023 (DPDPA) expressly confines itself to the personal data of living data principals, creating a complete statutory vacuum on the question of digital legacy and post-mortem identity protection.^[3]

2.2 The Dignity Dimension

Dignity under Article 21 presents a more nuanced position. Even where an individual’s right to personal privacy may cease upon death, dignity has on occasion been interpreted not merely as an individual right but as a social value that the State is obliged to uphold. In certain judgments from 2005–2006, the Supreme Court held that constitutional guarantees “transcend the mere protection of individual rights” and that the State bears a “constitutional obligation” to prevent the degradation of human dignity.

Although those judgments arose in the context of prison conditions, the broader principle — that dignity carries a societal dimension — is capable of being extended to the protection of the dead. Where a deceased person’s image is used to disseminate false information, generate commercial profit, or depict conduct the deceased would have found objectionable, such use does not merely injure the sentiments of surviving relatives; it degrades the social meaning of the dignity that the deceased embodied.

2.3 The ‘Actio Personalis’ Barrier

The principal legal impediment to post-mortem privacy protection is the common law maxim actio personalis moritur cum persona, codified through Section 306 of the Indian Succession Act, 1925. By operation of this rule, personal tort causes of action — including defamation and invasion of privacy — do not survive death. There is, therefore, no free-standing cause of action for post-mortem invasion of privacy.

Heirs seeking relief must instead establish one of two foundations:

That the injury to the deceased’s reputation causes derivative harm to the reputation and dignity of the surviving relatives; or
That the deceased’s persona constitutes a heritable asset — an “estate right” — capable of descending to successors, analogous to the American “right of publicity.”

The second route, framing the personality right as a commercial and proprietary interest rather than a personal one, is the approach most favoured by Indian courts, as discussed in Part III below.

3. Personality Rights Jurisprudence and AI-Generated Content

3.1 The Rise of Personality Rights in India

Over the past two decades, the courts of India — principally the Delhi High Court — have developed a substantial body of law on personality rights, attributing commercial value to an individual’s identity, name, voice, and image. This body of law draws from an amalgamation of heterogeneous legal principles: some from passing off, some from trade mark law, and some from the constitutional right to privacy — giving rise to a protection that is, as one court observed, “neither purely proprietary nor purely personal.”^[4] The principal cases establish the following hierarchy of protected interests:

Name and Identity: The Delhi High Court in Arun Jaitley v. Network Solutions Pvt. Ltd. held that a person’s name carries commercial value and is entitled to legal protection against unauthorised use.
Commercial Persona: In D. M. Entertainment Pvt. Ltd. v. Baby Gift House, the court recognised the right to commercially exploit one’s personality as a legal right deserving of protection.
Publicity Rights: In Titan Industries Ltd. v. Ramkumar Jewellers, the Delhi High Court held that the publicity rights of celebrities are independently actionable.
Misuse of Identity: In ICC Development (International) Ltd. v. Arvee Enterprises, the court held that the use of a person’s name or identity to create a false association with a product or service constitutes an independent civil wrong.

More recently, in 2026, this jurisprudence has been extended further. The Delhi High Court in Aman Gupta v. Unknown Defendants^[6] issued an ad interim injunction restraining the use of the plaintiff’s name, voice, and persona, and directed platforms including Google LLC to disclose the identity of infringers — proceeding on the twin grounds of Article 21 and common law. In Shashi Tharoor v. Unknown Defendants,^[7] the court extended this protection to politicians, holding that personality rights under Article 21 and passing off are not confined to the entertainment industry.

The Gujarat High Court in Vikas Vijay Nair v. State of Gujarat^[9] added an important threshold qualification: injunctive relief against AI-generated deepfakes is available only upon proof of an identifiable and commercially exploitable public persona — a single academic achievement being insufficient for this purpose. Courts in Bombay and other High Courts — in matters concerning Kartik Aaryan, Mohanlal, Allu Arjun, and Sadhguru — have mandated accelerated takedowns within 36 hours, establishing a near-uniform national framework for AI-related personality rights enforcement.^[8]

3.2 Anil Kapoor v. Simply Life India: The AI Deepfake Precedent

Anil Kapoor v. Simply Life India & Ors.^[5] is the leading Indian authority at the intersection of AI-generated content and personality rights. The Delhi High Court granted an ad interim ex parte injunction restraining the defendants from appropriating — individually or in any combination — the plaintiff’s name, likeness, image, voice, persona, distinctive mannerisms, and style of speech in any AI-based product or deepfake.

Three aspects of the court’s reasoning are of particular significance in the context of digital resurrection:

The court held that the voice, likeness, and persona of a celebrity are “clearly protected property rights which may not be commercially exploited without permission.”
The court found that AI-generated content mimicking a person without consent constitutes a form of deceptive conduct, creating a false impression of approval or association.
Crucially, the court recognised that AI deepfake generation poses a qualitatively distinct risk from conventional misappropriation, by reason of its capacity to “generate unlimited and highly realistic imagery and video at scale.”

Although Anil Kapoor concerned a living person, the proprietary characterisation of personality rights adopted by the court is directly relevant to posthumous claims. If AI-generated commercial exploitation of a living person’s persona is restrained on proprietary grounds, that reasoning logically extends to cases where descendants assert inherited personality rights — provided, of course, that such rights are held to survive death, which remains unresolved.

3.3 Heritability of Personality Rights: An Unclear Issue

As of 2026, no Indian court has definitively ruled on whether personality rights survive death and are transmissible to legal heirs. The position remains uncertain.

The case for heritability rests on analogy with intellectual property: under the Copyright Act, 1957, an author’s moral rights survive death and may be exercised by their heirs or estate. If moral rights — which are personal in character — are heritable, personality rights with a dignity element ought logically to survive as well. The courts in D. M. Entertainment and Titan Industries both observed that the commercial dimension of personality rights is independent of the individual’s lifetime.

The case against rests on the absence of explicit statutory provision. Unlike copyright, personality rights are not codified in India. In the absence of testamentary or statutory succession, the common law doctrine of actio personalis applies, and Section 306 of the Indian Succession Act has not consistently been interpreted as rendering personality rights heritable property. Until Parliament or the Supreme Court resolves this question, practitioners must frame posthumous claims in commercial and proprietary terms — as tortious misappropriation akin to passing off — rather than as violations of a personal right to privacy.

3.4 Copyright Considerations

The Copyright Act, 1957 provides additional, if limited, protection. Where a deceased person’s recorded songs, performances, speeches, or writings are used as training material for AI modelling or synthetic media creation, this may constitute copyright infringement. Copyright protection subsists for 60 years from the death of the author, and the estate may therefore initiate proceedings.

The principal limitation is that copyright protects specific fixations — the recording, the film, the text — and not the underlying personality. An AI trained on the writing style of a deceased author that generates entirely new text may not infringe the copyright in the original works on a strict textual analysis, even if it effectively “resurrects” the author’s voice. This gap between what copyright protects and what AI can reproduce underscores the need for purpose-specific legislation.

4. Legal Governance: The IT Act, 2021 Rules, and 2026 Reforms

4.1 India’s Statutory Foundation: The IT Act, 2000

The Information Technology Act, 2000 remains the primary statute governing digital harms in India. Several provisions have potential application to AI-generated synthetic media and post-mortem digital cloning:

Section 66E criminalises the capture, publication, or transmission of an intimate image of a person without consent. This may extend to AI-generated deepfake images of a deceased person depicting them in an intimate context.
Sections 67A and 67B make it an offence to transmit obscene or sexually explicit material electronically, applicable to AI reproductions of deceased persons in sexual scenarios.
Section 79 (Intermediary Liability) provides a conditional safe harbour to platforms hosting third-party content, subject to compliance with “due diligence” requirements. Platforms that fail to act expeditiously upon notification of infringing content lose this immunity — a principle confirmed by the Supreme Court in Shreya Singhal v. Union of India.

4.2 IT (Intermediary Guidelines) Rules, 2021 and 2026 Updates

The IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, as substantially revised in 2026, currently govern the regulation of synthetic and AI-generated content (SGC). The 2026 amendments introduce four significant obligations:

Mandatory Disclosure: AI-altered or AI-generated images and videos must be clearly labelled, protecting consumers from deception.
Proactive Detection: Major platforms are now required to deploy technical systems capable of flagging deepfakes at the point of upload.
Accelerated Removal: Infringing synthetic media must be taken down more quickly than standard content, reflecting the heightened harm potential of deepfakes.
Audit Trails: Platforms must maintain records of AI-generated uploads, available for government inspection where necessary.

These obligations build on the proportionality framework established in Puttaswamy^[1] and the intermediary liability principles affirmed in Shreya Singhal. A platform that fails to maintain transparency in compliance with these rules risks losing its Section 79 immunity.

4.3 State-Level Precedents

The Andhra Pradesh Core Digital Data Authority Act (2017) provides an early example of legislative foresight. Though primarily concerned with the criminal penalties for unlawful digital data appropriation, the Act reflects an internal recognition — at the state level — that digital identities require legal protection. Its framework could be adapted and expanded to cover post-mortem digital identity at the national level.

4.4 Defamation and Consumer Safeguards

Reputational Damages: A deceased person’s estate may bring a civil action for defamation where a false statement is attributed to the deceased. Criminal defamation under the Bharatiya Nyaya Sanhita, 2023 (BNS) may also be attracted where defamatory words cause injury to the estate.

Consumer Protection: The use of a deceased celebrity’s AI-generated avatar for commercial endorsement, without the authorisation of the estate, may constitute an unfair trade practice under the Consumer Protection Act, 2019. The misrepresentation operates deceptively even without an explicit false claim of endorsement, because the appearance of the celebrity’s likeness itself implies approval.

5. Identifying Legal Lacunae and Strategic Litigation

5.1 Critical Gaps in India’s Existing Legal Framework

India’s regulation of posthumous digital identity is a patchwork. Legal heirs must currently navigate a complex array of statutes — the Copyright Act, IT Act, BNS, and Consumer Protection Act — none of which was designed for the era of generative AI. The resulting gaps are significant:

No Consent Requirement: No law currently compels AI developers to obtain explicit consent from heirs before training models on a deceased person’s voice or image.
Uncertain Heritability: In the absence of a codified right of publicity, the heritability of personality rights remains entirely dependent on judicial development — which has been slow and inconsistent.
No Estate Takedown Rights: The 2026 IT Rules do not explicitly recognise a family’s right to demand the removal of AI-synthesised content depicting a deceased relative.
Cross-border Enforcement: Synthetic media hosted on foreign platforms may fall outside the effective reach of Indian law, creating significant enforcement challenges.

5.2 Strategic Recommendations for Legal Counsel

Until comprehensive legislation is enacted, practitioners handling digital resurrection cases should pursue the following litigation strategies:

Frame Claims as Commercial Misappropriation: Characterise the unauthorised use as an invasion of the deceased’s commercial personality — a proprietary interest — rather than a personal privacy violation, thereby circumventing the actio personalis rule.
Passing Off: Assess whether the AI-generated content is likely to mislead consumers into believing the estate has endorsed or approved the material, thereby establishing the misrepresentation element of passing off.
Leverage 2026 IT Rules Non-Compliance: Where platforms have failed to label synthetic media, proactively detect deepfakes, or execute timely takedowns, this non-compliance can ground independent claims and erode the platform’s safe harbour defence.
Copyright Infringement: Where the deceased’s original works have been directly reproduced or adapted in AI training or output, copyright infringement — as a well-established cause of action — should be pursued as the primary ground wherever available.

5.3 Suggested Legislative Architecture

A comprehensive legislative framework is urgently required. This author proposes five pillars:

A. Post-Mortem Personality Rights Legislation. Parliament should enact standalone legislation — or amend the Copyright Act — to codify the extent to which personality rights survive death. Such legislation should grant heirs the exclusive right to control the use of a deceased person’s name, likeness, voice, and distinctive characteristics for a defined period (such as 60 years, consistent with copyright duration). These rights should be expressly constituted as heritable property.

B. Mandatory Consent and Licensing for AI Training. AI developers should be prohibited from training models on a deceased person’s biometric data, voice signature, or visual image without the prior informed consent of the person’s heirs. A licensing framework should be established to permit lawful commercial use, subject to the payment of royalties to the deceased’s estate.

C. Mandatory Labelling of AI-Generated Posthumous Content. Building on the 2026 IT Rules, all AI-generated media depicting a deceased person should be required to carry clear, conspicuous labelling — across all formats, whether commercial or non-commercial.

D. Statutory Takedown Rights for Estates and Families. Families and estate executors should be granted an express statutory right to demand the removal of AI-generated content depicting a deceased relative, enforceable against both Indian and foreign platforms operating within India.

E. Dedicated Regulatory Oversight. A competent authority — whether a dedicated AI regulator or the Digital Personal Data Protection Board (DPDPB) expanded to cover AI — should be vested with jurisdiction to adjudicate disputes concerning the posthumous use of digital identities.

6. Conclusion

As of 2026, India’s approach to post-mortem privacy and synthetic media is a patchwork of judicial decisions and regulatory guidelines that provide indistinct and inadequate coverage. The landmark ruling in Puttaswamy^[1] established a constitutional framework for privacy, but one that does not extend to the deceased. Decisions such as Anil Kapoor v. Simply Life India^[5] and Titan Industries Ltd. v. Ramkumar Jewellers have offered important guidance, but only within the narrow domain of commercial misappropriation involving living persons or estates with established commercial reputations. The 2026 IT Rule amendments have strengthened platform liability for the dissemination of synthetic media, but they do not address the substantive rights of families over AI-duplicated posthumous identities.

With the rapid expansion and commercialisation of “digital resurrection” technology, India cannot afford further legislative inaction. Only a coherent, future-proof statutory framework — one that balances the legitimate interests of bereaved families, the innovation imperatives of technology companies, and the public’s right to truthful information — can ensure that the dead are not rendered perpetual subjects of commercial exploitation without recourse.

Footnotes

Justice K. S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1: AIR 2017 SC 4161 (Nine-Judge Bench). The Court unanimously held that the right to privacy is a fundamental right protected under Articles 14, 19, and 21 of the Constitution, encompassing informational privacy and the individual’s authority to control the collection and use of personal data. ↩
Ibid. (concurring opinion of the Chief Justice). Any State interference with the right to privacy must satisfy a tripartite test of: (i) legality — grounded in law; (ii) legitimate purpose — serving a valid State aim; and (iii) proportionality — the means must not be excessive in relation to the object. ↩
Digital Personal Data Protection Act, 2023 (DPDPA), § 2. The DPDPA confines the definition of “data principal” exclusively to living individuals, thereby excluding the personal data of deceased persons from its protective scope. This creates a statutory vacuum on the question of digital legacy and whether AI-generated reproductions of a deceased person’s voice or likeness attract any legal protection. Cf. Puttaswamy (n 1) on the constitutional protection of informational dignity. ↩
R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632 (Supreme Court). The Court held that every individual possesses an inherent right to privacy under Article 21, including the right to control the commercial exploitation of their name, image, and identity. This is regarded as the foundational authority on personality rights in India. ↩
Anil Kapoor v. Simply Life India & Ors., CS (COMM) 652/2023, I.A. 18237/2023 (Delhi High Court, 20 September 2023, Prathiba M. Singh J.). The Court granted an ad interim ex parte injunction restraining the defendants from appropriating the plaintiff’s name, likeness, image, voice, persona, distinctive mannerisms, and style of speech, whether individually or in combination, including through AI-driven tools — marking the first Indian judicial recognition of AI deepfakes as a violation of personality rights. ↩
Aman Gupta v. Unknown Defendants, Suit No. LPA/1234/2026 (Delhi High Court, 7 May 2026). The Court issued an ex parte ad interim injunction restraining use of the plaintiff’s name, voice, and persona, and directed platforms including Google LLC to disclose infringers’ identities. The judgment proceeded on the twin grounds of Article 21 of the Constitution and common law. ↩
Shashi Tharoor v. Unknown Defendants (Delhi High Court, 8 May 2026). The Court held that the name, style, and image of a public figure — including a politician — are protected under Article 21 and the common law action of passing off, and may not be appropriated for commercial gain without authorisation. This decision is significant for extending personality rights protection beyond the entertainment industry. ↩
Kartik Aaryan v. Unknown Defendants (Bombay High Court, 2026); and related orders in matters concerning Mohanlal, Allu Arjun, and Sadhguru (various High Courts, 2026). These decisions collectively reflect a nationwide trend toward uniformity in personality rights enforcement against AI impersonation, with courts mandating takedown timelines of 36 hours. ↩
Vikas Vijay Nair v. State of Gujarat, [2026] SCC Online Guj 2082 (Gujarat High Court, 10 April 2026). The Court held that a single academic achievement is insufficient to establish a cognisable public persona. Injunctive relief against AI deepfakes is available only upon proof of an identifiable and commercially exploitable public reputation. ↩

Gunjan Ukey

Table of Contents