[By Utkarsh Rai, First Year B.A. LL.B. (Hons.) student at NUSRL, Ranchi]
I. Introduction: The Rise of Thanatechnology
The legal maxim “actio personalis moritur cum persona” a personal right of action dies with the person, has long served as the biological guillotine of the law. It assumed the fact that personality was essentially bound to the mortal coil. Death was the ultimate “off-switch” of legal personhood once the heart had stopped, the rights-subject was an object of memory.
But the digital age has severed this link. We have entered the era of ‘Thanatechnology’ the use of Generative AI to reanimate the deceased. From the controversial “resurrection” of the late actor Peter Cushing in Rogue One to the proliferation of consumer “Ghostbots” (like Project December) that allow users to chat with deceased relatives, the dead are becoming active participants in the digital economy.
It is a technological necromancy that brings about a deep ontological crisis to jurisprudence. Assuming a machine can mimic the “will,” “voice,” and “conscience” of a dead person, does the law’s refusal to recognize posthumous rights create a normative vacuum? This essay argues that the current “Extinguishment Doctrine” in Indian law is theoretically obsolete. By analysing the tension between Will Theory and Interest Theory, and critiquing recent judicial trends, it posits that we must recognize a new category of “Digital Remains” that demands fiduciary protection, not just property management.
II. The Theoretical Schism: Can the Dead Have Rights?
To understand the status of a “Digital Ghost,” we must revisit the foundational debate in rights theory regarding the nature of a legal subject.
A. The Will Theory (The Choice Model)
Championed by legal positivists like H.L.A. Hart and Hans Kelsen, the Will Theory asserts that a right is essentially a “power of choice” over a duty. To have a right is to be a “small-scale sovereign.” Under this view, the dead cannot have rights because they lack the agency to waive or enforce them. If the dead have no will, they are not legal subjects; they are merely objects.
This framework is the current default of most legal systems. It implies that once a person dies, their “data body” becomes res nullius (nobody’s property) or falls into the public domain, available for any AI company to harvest. If a company scrapes the public tweets of a deceased poet to train a bot that writes “new” poems, the Will Theory offers no defence, for the poet has no will to object.
B. The Interest Theory (The Benefit Model)
In contrast, the Interest Theory (advanced by Jeremy Bentham and Joseph Raz) argues that rights exist to protect well-being or interests, regardless of the power to choose. Crucially, philosophers like Jeremy Bentham and Joseph Raz have argued for “posthumous interests” the idea that a person has a surviving interest in their reputation and the fulfilment of their life’s projects.
If we apply Interest Theory to AI, the “harm” is not that the dead person feels pain, but that their “narrative integrity” is violated. If an AI makes a deceased pacifist advocate for war, their surviving “interest” in their own identity is desecrated. The law protects the reputation of the dead through defamation laws (to an extent); similarly, it should protect the “digital persona” from distortion.
III. The Indian Judicial Stance: The “Extinguishment Doctrine”
The traditional Indian courts have followed a strict biological definition of personhood, which can be termed as the “Extinguishment Doctrine.” According to this doctrine, the rights to personality are concomitant with life.
1. The Privacy Void
In the landmark K.S. Puttaswamy v. Union of India , the Supreme Court declared privacy a fundamental right. The concurrence of Justice Nariman, however, observed that the concept of dignity is inalienable, but the right to enforce the same, even after death remains legally ambiguous. The judgment did not explicitly extend privacy beyond death, leaving a loophole that should be interpreted by lower courts.
2. The Jayalalithaa Precedent
In Deepa Jayakumar v. A.L. Vijay , the Madras High Court was explicit. When the niece of the late CM Jayalalithaa sought to block a biopic, the court held that “privacy rights are not heritable.” It ruled that reputation and privacy “die with the person” and cannot be asserted by heirs unless they can prove “associational harm” (i.e., that the biopic harms them, not the deceased).
3. The SSR Case
Similarly, in Krishna Kishore Singh v. Sarla A. Saraogi (2023), the Delhi High Court rejected the plea of Sushant Singh Rajput’s father to stop films based on the late actor’s life. The court reiterated that “personality rights” extinguish upon death and cannot be carried forward by the estate.
A. The Crisis
This is a judicial position that is perilous in the era of AI. In case the privacy rights and personality rights die instantly, then in legal terms, there is no reason why an AI company cannot scrape the private WhatsApp messages of a deceased person (as long as they can access the device) to use it to train a commercially available “deadbot.” The so called “Extinguishment Doctrine” essentially declares open season on the digital souls of the departed.
IV. The “Living” Exception: A Double Standard?
As the dead are exposed to no protection, the law has strongly extended the protection of the living against AI, creating a jarring jurisprudential double standard.
- The Anil Kapoor Order: In Anil Kapoor v. Simply Life India (2023), the Delhi High Court ordered AI organizations not to use the voice, image or a “persona” of the actor to generate deepfakes.
- The Jackie Shroff Order: In Jackie Shroff v. The Peppy Store (2024), the court expanded this to include “attributes of personality” like the actor’s unique style of speaking (“Bhidu”).
A. The Analytical Gap
The jurisprudence creates a paradox. It is the persona, which is considered intellectual property (IP) when the celebrity remains alive – a commercial property. However, as soon as they die, this property disappears. This contradicts the very nature of IP, which typically survives the creator (e.g., Copyright lasts for 60 years post-mortem). Why is the “copyright in a book” protected after death, but the “copyright in one’s own face/voice” (Personality Rights) is not?
The distinction seems to rest on the idea that “personality” is innate, while a “book” is external. However, in the digital age our information or data is made external. The prints of our voices, the scan of our faces and our chat logs are on the servers which is outside our bodies. They are as much “creations” as a manuscript. Therefore, the “persona” should be treated as a form of quasi-property that survives the creator.
V. Comparative Jurisprudence: The “ELVIS” Act
Other jurisdictions are waking up to this contradiction. Tennessee recently enacted the “ELVIS Act” (Ensuring Likeness Voice and Image Security Act 2024). This revolutionary law clearly acknowledges that voice and likeness are property rights, which outlive a person and may be defended against AI deepfakes by heirs.
Similarly, the EU GDPR (Recital 27) indicates that the regulation is not applicable to deceased individuals but it is for the member states to decide.. Other countries such as France, have enacted laws about “digital death” where an individual could leave instructions on how to use their data in case of death. India’s refusal to recognize post-mortem personality rights makes it a global outlier and a potential haven for “data grave-robbing.”
VI. The Statutory Failure: DPDP Act 2023
India’s new Digital Personal Data Protection Act, 2023 attempts to address this but falls short.
- Section 10 (Nomination): It allows a Data Principal to nominate someone to exercise their rights in the event of death.
- The Flaw: This is purely procedural. It allows a nominee to withdraw consent or manage data. It does not create a substantive right against “unauthorized simulation.” If a third-party AI scrapes data from the public web (which is outside the Act’s scope per Section 3(c)(ii)), the nominee is powerless. The Act protects data, not dignity. It views the deceased’s data as an asset to be managed, not a soul to be respected.
VII. Proposal: A Fiduciary Model of “Digital Stewardship”
Instead of granting the dead individual “rights” or treating their likeness as mere “heritable property,” we should adopt a trust-based model of Digital Heritage.
Drawing from the Public Trust Doctrine, which was famously applied in India in the case of M.C. Mehta v. Kamal Nath, we can argue that certain facets of human existence like the “cultural and dignitary essence” of a person are not for free commercial pillage. Just as the State acts as a trustee for natural resources, the law should view the “Digital Persona” as a form of “Digital Heritage.”
This shift from “Ownership” to “Stewardship” implies that:
- Constructive Trust: The law should view the “Digital Persona” as a Constructive Trust held by AI platforms. They have a fiduciary duty not to use that data in a way that causes “associational harm” to the memory of the deceased.
- Moral Rights (Droit Moral): We should borrow from Copyright law’s Section 57 of the Copyright Act, 1957. Just as an author has a special right to claim authorship and prevent distortion of their work even after assigning copyright, a person should have a “Moral Right” to the integrity of their digital persona that survives death. This right would allow heirs to veto any “deepfake” that is “prejudicial to the honour or reputation” of the deceased.
VIII. Conclusion: The Ghost in the Machine
The “Ghost in the Machine” is no longer a metaphor; it is a product feature. As Luciano Floridi notes in his philosophy of the “Onlife,” our digital existence is now as real as our biological one.
If Indian jurisprudence continues to insist that “personhood ends at death,” it will fail to protect the sanctity of human life in the 21st century. We need a legal framework that recognizes that while the body decays, the data endures. And where data endures, dignity must follow. The law must evolve from a “biocentric” model to a “pathocentric” (harm-centric) model, acknowledging that one can be harmed even if one cannot feel it.
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