{"id":438,"date":"2026-03-08T13:50:03","date_gmt":"2026-03-08T13:50:03","guid":{"rendered":"https:\/\/cjlt.nliu.ac.in\/?p=438"},"modified":"2026-03-08T13:50:04","modified_gmt":"2026-03-08T13:50:04","slug":"the-algorithmic-ghost-a-jurisprudential-inquiry-into-digital-remains","status":"publish","type":"post","link":"https:\/\/cjlt.nliu.ac.in\/?p=438","title":{"rendered":"The Algorithmic Ghost: A Jurisprudential Inquiry into Digital Remains"},"content":{"rendered":"\n

[By Utkarsh Rai<\/a>, First Year B.A. LL.B. (Hons.) student at NUSRL, Ranchi]<\/em><\/p>\n\n\n\n

I. Introduction: The Rise of Thanatechnology<\/strong><\/h3>\n\n\n\n

The legal maxim \u201cactio personalis moritur cum persona<\/em>\u201d 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 \u201coff-switch\u201d of legal personhood once the heart had stopped, the rights-subject was an object of memory.<\/p>\n\n\n\n

But the digital age has severed this link. We have entered the era of \u2018Thanatechnology\u2019 the use of Generative AI to reanimate the deceased. From the controversial \u201cresurrection\u201d of the late actor Peter Cushing in Rogue One<\/em><\/a> to the proliferation of consumer \u201cGhostbots\u201d (like Project December<\/a>) that allow users to chat with deceased relatives, the dead are becoming active participants in the digital economy.<\/p>\n\n\n\n

It is a technological necromancy that brings about a deep ontological crisis to jurisprudence. Assuming a machine can mimic the \u201cwill,\u201d \u201cvoice,\u201d and \u201cconscience\u201d of a dead person, does the law\u2019s refusal to recognize posthumous rights create a normative vacuum? This essay argues that the current \u201cExtinguishment Doctrine\u201d 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 \u201cDigital Remains\u201d that demands fiduciary protection, not just property management.<\/p>\n\n\n\n

II. The Theoretical Schism: Can the Dead Have Rights?<\/strong><\/h3>\n\n\n\n

To understand the status of a \u201cDigital Ghost,\u201d we must revisit the foundational debate in rights theory regarding the nature of a legal subject.<\/p>\n\n\n\n

A. The Will Theory (The Choice Model)<\/h4>\n\n\n\n

Championed by legal positivists like H.L.A. Hart<\/a> and Hans Kelsen<\/a>, the Will Theory<\/a> asserts that a right is essentially a \u201cpower of choice\u201d over a duty. To have a right is to be a \u201csmall-scale sovereign.\u201d 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.<\/p>\n\n\n\n

This framework is the current default of most legal systems. It implies that once a person dies, their \u201cdata body\u201d becomes res nullius<\/em> (nobody\u2019s 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 \u201cnew\u201d poems, the Will Theory offers no defence, for the poet has no will to object.<\/p>\n\n\n\n

B. The Interest Theory (The Benefit Model)<\/h4>\n\n\n\n

In contrast, the Interest Theory<\/a> (advanced by Jeremy Bentham<\/a> and Joseph Raz<\/a>) argues that rights exist to protect well-being or interests, regardless of the power to choose. Crucially, philosophers like Jeremy Bentham<\/a> and Joseph Raz<\/a> have argued for \u201cposthumous interests\u201d the idea that a person has a surviving interest in their reputation and the fulfilment of their life\u2019s projects.<\/p>\n\n\n\n

If we apply Interest Theory to AI, the \u201charm\u201d is not that the dead person feels pain, but that their \u201cnarrative integrity\u201d is violated. If an AI makes a deceased pacifist advocate for war, their surviving \u201cinterest\u201d 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 \u201cdigital persona\u201d from distortion.<\/p>\n\n\n\n

III. The Indian Judicial Stance: The \u201cExtinguishment Doctrine\u201d<\/strong><\/h3>\n\n\n\n

The traditional Indian courts have followed a strict biological definition of personhood, which can be termed as the \u201cExtinguishment Doctrine.\u201d According to this doctrine, the rights to personality are concomitant with life.<\/p>\n\n\n\n

1. The Privacy Void<\/h3>\n\n\n\n

In the landmark K.S. Puttaswamy v. Union of India<\/em><\/a> , 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.<\/p>\n\n\n\n

2. The Jayalalithaa Precedent<\/h3>\n\n\n\n

In Deepa Jayakumar v. A.L. Vijay<\/em><\/a> , the Madras High Court was explicit. When the niece of the late CM Jayalalithaa sought to block a biopic, the court held that \u201cprivacy rights are not heritable.\u201d It ruled that reputation and privacy \u201cdie with the person\u201d and cannot be asserted by heirs unless they can prove \u201cassociational harm\u201d (i.e., that the biopic harms them<\/em>, not the deceased).<\/p>\n\n\n\n

3. The SSR Case<\/h3>\n\n\n\n

Similarly, in Krishna Kishore Singh v. Sarla A. Saraogi<\/em><\/a> (2023), the Delhi High Court rejected the plea of Sushant Singh Rajput\u2019s father to stop films based on the late actor\u2019s life. The court reiterated that \u201cpersonality rights\u201d extinguish upon death and cannot be carried forward by the estate.<\/p>\n\n\n\n

A.    The Crisis<\/h4>\n\n\n\n

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 \u201cdeadbot.\u201d The so called \u201cExtinguishment Doctrine\u201d essentially declares open season on the digital souls of the departed.<\/p>\n\n\n\n

IV. The \u201cLiving\u201d Exception: A Double Standard?<\/strong><\/h3>\n\n\n\n

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.<\/p>\n\n\n\n