How to Challenge a Suspected AI Generated Document in Court

A document arrives on the record that looks right and reads wrong. Challenging a suspected AI generated document is not a matter of asserting that it is fake. It is a matter of building a record that makes the inconsistency visible, and then asking for the right thing in the right order.

Step 1: Get Every Version of the Document Before Saying Anything

A manipulated document is often exposed because more than one copy of it exists. The copy annexed to the pleading, the copy produced later, the copy held by whoever issued it and the copy in the client's own file are four different things, and they are not always the same.

Collect them before the challenge is made. A challenge mounted on one copy invites an explanation; a challenge mounted on two copies that differ is harder to explain away.

Step 2: Compare, and Write the Differences Down as Differences

Set the versions side by side and record each discrepancy as a discrete item: a number that differs, a date that differs, a field that is present in one and absent in the other, a layout that does not match, a seal or signature that sits differently on the page.

Resist the temptation to characterise at this stage. A list of differences is evidence. An assertion that a document was generated by a machine is a conclusion, and a conclusion offered before the differences are set out is easy to resist and easy to resent.

Step 3: Go to the Issuing Body, Not to a Detector

Where the document purports to be issued by an institution, a board, a registry or an authority, that body holds the only version that settles the question. A written confirmation of what its record shows is worth more than any analysis of the file.

Detection tools can inform a decision about whether to pursue the point. They do not prove it, their reliability is contested, and a case that rests on one invites an argument about the tool rather than about the document.

Step 4: Preserve the File, Not Just the Print

A printed copy on the record is the end of a chain. Ask early for the electronic file as it was received, the message or medium it arrived by, and the account or device it came from, because each of those is capable of being lost by ordinary use while the proceeding continues.

Where there is a real risk of the material disappearing, ask the Court to direct that the originals and any register or record produced with them be kept in a sealed cover. That is a modest order to seek and it fixes the material as it stood on the day.

Step 5: Decide What Is Actually Being Asked For

Three different things are often run together, and they attract different responses from a court.

• That the document be disbelieved: A submission on weight, decided with the rest of the case.

• That the document be taken off the record: A procedural application about what the Court should have before it.

• That the making of the document be inquired into: A request that the matter be put into the criminal track, which is a different thing from winning the point in the proceeding.

Being explicit about which of these is sought, and in what sequence, is the difference between an application a court can act on and a complaint about the other side.

Step 6: Know the Provision That Governs the Third Request

Section 379 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is the procedure. Where, on an application made to it in this behalf or otherwise, a Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into an offence referred to in clause (b) of sub-section (1) of section 215, which appears to have been committed in or in relation to a proceeding in that Court, or in respect of a document produced or given in evidence in a proceeding in that Court, the Court may act.

The words that matter for this purpose are the ones about a document produced or given in evidence. Nothing in those words requires the document to have been decisive, or the proceeding to have concluded. What they require is that the Court form an opinion that an inquiry is expedient in the interests of justice.

Step 7: Understand What the Court Can Actually Do Under It

Section 379 allows the Court, after such preliminary inquiry if any as it thinks necessary, to record a finding to that effect, to make a complaint in writing, to send it to a Magistrate of the first class having jurisdiction, to take sufficient security for the appearance of the accused before that Magistrate or, where the alleged offence is non-bailable and the Court thinks it necessary, to send the accused in custody, and to bind over any person to appear and give evidence.

Two consequences follow for the drafting. The relief sought is the formation of an opinion and a complaint, not a conviction. And the preliminary inquiry is discretionary, so an application that hands the Court a clean comparison is doing the work that would otherwise have to be commissioned.

Step 8: Keep the Application Narrow and the Tone Flat

Plead the differences, annex the versions, annex the issuing body's confirmation if it has been obtained, state what is sought, and stop. Allegations about motive, about the opposite party's advisers, or about artificial intelligence generally, add nothing that the comparison does not already carry.

Where the application fails, a flat application leaves nothing behind. An intemperate one leaves a record that follows the matter.

Common Pitfalls to Avoid

• Leading with the conclusion: Set out the differences first; the characterisation is what they support, not what replaces them.

• Relying on a detection tool: It can inform the decision to pursue the point and it does not prove it.

• Forgetting the issuing body: Its own record is usually the shortest route to an answer.

• Preserving only the print: The electronic file, the medium it arrived by and the source are lost by ordinary use unless they are asked for early.

• Running three requests as one: Disbelief, removal from the record and an inquiry into the making of the document are different asks with different consequences.

• Treating an inquiry as a verdict: What section 379 produces is an opinion and a complaint, not a finding of guilt.

Key Statutory Provisions

• Section 379 of the Bharatiya Nagarik Suraksha Sanhita, 2023: Procedure in cases mentioned in section 215. Where, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 215 which appears to have been committed in or in relation to a proceeding in that Court, or in respect of a document produced or given in evidence in a proceeding in that Court, the Court may, after such preliminary inquiry if any as it thinks necessary, record a finding to that effect, make a complaint thereof in writing, send it to a Magistrate of the first class having jurisdiction, take sufficient security for the appearance of the accused before such Magistrate or, if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate, and bind over any person to appear and give evidence before such Magistrate. Where the Court has neither made a complaint nor rejected an application for one, the power may be exercised by the Court to which it is subordinate within the meaning of sub-section (4) of section 215. A complaint under the section is signed by an officer appointed by the Court where that Court is a High Court, and otherwise by the presiding officer or an officer authorised in writing. Court has the same meaning as in section 215.

• Section 215 of the Bharatiya Nagarik Suraksha Sanhita, 2023: The offences that section 379 applies to are those referred to in clause (b) of sub-section (1) of that section, and the meaning of Court and the question of which Court is subordinate to which are also taken from it. Neither printing opened for this note sets out that clause, so nothing is said here about which offences it names.

Sources and References

• Section 379 of the Bharatiya Nagarik Suraksha Sanhita, 2023, first printing

• Independent printing of the same section, with clauses (a) to (e) set out

• Bharatiya Nagarik Suraksha Sanhita, 2023, sections 215 and 379

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Readers should consult a qualified legal professional for advice specific to their circumstances.