Author: M. AISHWARYA LAKSHMI, a student Vel Tech Rangarajan Dr.Sagunthala R&D Institute of Science and Technology
To the Point
In a world where brain-computer interfaces (BCIs) and neurotechnologies are no longer science fiction but scientific reality, the legal system is grappling with a fundamental question: Do our thoughts deserve explicit legal protection? Devices like Neuralink and non-invasive neuroimaging tools are inching closer to decoding, influencing, or even altering human thought processes.
This unprecedented advancement raises novel legal and ethical dilemmas: Can your brain data be hacked? Can thoughts be used as evidence? Is there a right to “mental privacy”? More critically, should there be a constitutional or statutory safeguard to protect your inner self—your unexpressed thoughts?
This article aims to explore the intersection of law and neurotechnology, the urgent need for legal reform, and whether the Right to Cognitive Liberty should emerge as a new fundamental right in India and globally.
Use of Legal Jargon
As neurotechnology evolves, so must the legal vocabulary surrounding it. Several legal doctrines and fundamental rights are at stake when discussing the implications of thought surveillance and brain-data processing:
Cognitive Liberty: A proposed legal concept that recognizes every individual’s autonomy over their own mental processes. It parallels the rights to privacy, freedom of thought, and bodily integrity.
Mental Privacy: A sub-set of the broader right to privacy, this concept demands that brain data—such as neural patterns, cognitive responses, or subconscious preferences—be treated as sensitive personal data.
Informed Consent: Central to data protection and medical ethics, this doctrine becomes more complex when individuals may not fully comprehend what neurotechnological devices do or extract.
Self-Incrimination (Nemo tenetur se ipsum accusare): Under Article 20(3) of the Indian Constitution, an individual cannot be compelled to testify against themselves. Would interpreting an individual’s brain signals without their consent amount to a violation of this constitutional safeguard?
Reasonable Expectation of Privacy: A judicially recognized test in Indian and comparative constitutional law, which may soon be applied to non-verbal thought data collected through BCIs or neuroimaging.
Data Fiduciary Duties: Under India’s Draft Digital Personal Data Protection Act, 2023, those who process neural data may be seen as fiduciaries entrusted with the highest standard of care and confidentiality.
In this emerging field, the law must proactively define and enshrine these terms within statutory and constitutional frameworks.
The Proof
Scientific advancements in the field of neurotechnology have made what once seemed like fiction, a tangible reality. Firms such as Neuralink, Kernel, and NextMind are pioneering brain-computer interfaces (BCIs) that can read, analyze, and potentially modify brain activity. In parallel, technologies such as functional MRI (fMRI) and EEG neuroimaging are being used not only for medical diagnostics but also in marketing (neuromarketing), criminal justice, and national security applications.
Recent research demonstrates that machines can already predict simple words or images that a person is thinking by mapping brain signals. The University of Texas at Austin, in 2023, revealed a language decoder that can reconstruct speech from brain scans—without invasive procedures. Imagine such data being accessible without consent or legal clarity.
In India, there have already been reported instances of brain fingerprinting or brain mapping tests being used in criminal investigations. The case of State of Maharashtra v. Sharma (2010) brought this to light when an accused was subjected to a brain electrical oscillation signature (BEOS) profiling test, sparking serious concerns about violation of Article 20(3) and Article 21 of the Constitution.
Globally, countries like Chile have responded with groundbreaking legislation. In 2021, Chile became the first nation to amend its constitution to recognize neuro-rights, explicitly protecting mental privacy, identity, and free will. The United Nations, too, has begun discussions on framing global frameworks for ethical neurotech deployment.
Thus, the technology exists. Its applications are growing. And the legal vacuum is glaring.
Abstract
With neurotechnology evolving swiftly, the legal framework is struggling to keep up. Devices that can interpret, store, and possibly manipulate human thoughts are no longer science fiction—they are functional prototypes. This article examines the legal implications of such technologies, particularly the need for a right to mental privacy and cognitive liberty.
Drawing from global legal developments, scientific breakthroughs, and Indian constitutional jurisprudence, the article argues that thoughts—whether spoken or unsaid—must be afforded legal protection akin to that of speech, expression, and bodily integrity. It explores how current legal frameworks, including the Indian Constitution, the Information Technology Act, 2000, and data protection laws, fall short in protecting neural data.
The article also explores the need for a new legal paradigm that recognizes neurorights—the rights to identity, agency, mental privacy, and protection from cognitive manipulation. With case studies from India and abroad, it highlights the pressing need for the judiciary and legislature to recognize that in the age of brain-machine symbiosis, the final frontier of privacy may well be inside the mind.
Case Laws
To understand the legal urgency surrounding neurotechnology, it is essential to examine how courts—especially in India—have dealt with issues touching upon privacy, self-incrimination, and bodily autonomy. Though no Indian case has directly dealt with brain-computer interfaces (BCIs), several judgments lay the groundwork for future legal protection of thoughts.
1. Selvi v. State of Karnataka, (2010) 7 SCC 263
In this landmark judgment, the Supreme Court of India ruled that narco-analysis, polygraph tests, and brain-mapping techniques conducted without consent violate Article 20(3) (protection against self-incrimination) and Article 21 (right to personal liberty). The Court ruled that forcing individuals to undergo such techniques constitutes cruel, inhuman, and degrading treatment.
🔹 Relevance: The judgment established that cognitive processes are protected by fundamental rights, laying a foundation for recognizing a right to mental privacy in neurotech contexts.
2. K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1
This landmark ruling by a nine-judge bench confirmed that the right to privacy is a fundamental right protected under Articles 14, 19, and 21 of the Constitution. The Court highlighted that informational autonomy, bodily integrity, and decisional privacy form the essential components of the right to privacy.
🔹 Relevance: Neural data, thoughts, and cognitive activity could logically fall within informational and decisional privacy, thus warranting constitutional protection.
3. State of Maharashtra v. Sharma (2010)
The case involved the use of BEOS (Brain Electrical Oscillation Signature) profiling during a criminal investigation. Although not adjudicated at the Supreme Court level, the use of such technologies raised significant ethical concerns regarding non-consensual access to mental states.
🔹 Relevance: Highlights the potential misuse of neuro-evidence in criminal trials and the lack of adequate safeguards under existing laws.
4. Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148
An early but significant case that hinted at the implicit existence of a right to privacy even before it was formally recognized. The Court acknowledged that privacy is vital to personal liberty and human dignity.
🔹 Relevance: Supports the extension of privacy rights to protect thought processes in light of emerging technologies.
5. Chile’s Constitutional Reform (2021)
Although not originating from India, Chile holds the distinction of being the first nation to constitutionally enshrine neuro-rights, including the rights to mental privacy, identity protection, and free will.
🔹 Relevance: Sets a global precedent for India to follow in legislatively or judicially recognizing neurorights.
Conclusion
The human mind has long been considered a sanctuary of privacy—a space no one could access without consent. But neurotechnology is rapidly challenging that assumption. As brain-computer interfaces, neural implants, and cognitive decoding tools become mainstream, the law must evolve to recognize and protect the innermost frontier of individual autonomy: our thoughts.
India’s constitutional framework, particularly Articles 19 and 21, offers fertile ground to develop cognitive liberty and mental privacy as enforceable rights. Yet, in the absence of express legal provisions, there remains a high risk of abuse, whether through unlawful surveillance, forced neurotesting, or commercial exploitation of brain data.
The judicial pronouncements in Selvi and Puttaswamy are forward-looking but incomplete in addressing the neurotechnological era. The State must act proactively—through legislation, data protection reforms, and judicial guidelines—to safeguard neural integrity. The recognition of neurorights, as seen in Chile, may serve as a vital blueprint.
Ultimately, as we step into a future where machines can access our innermost thoughts, the question is not just technical or philosophical—it is deeply legal. To delay action is to risk eroding human dignity at its core.
FAQS
Q1. What is neurotechnology, and why is it legally relevant?
A: Neurotechnology refers to devices and systems that interact directly with the human brain, such as brain-computer interfaces (BCIs), neural implants, and neuroimaging tools. It is legally relevant because these technologies can access, interpret, or influence thoughts, raising serious concerns about privacy, autonomy, and consent.
Q2. Is there any law in India that protects our brain data or thoughts?
A: No Indian law currently provides explicit protection for neural data or unspoken thoughts. However, constitutional protections under Article 21 (right to life and liberty) and Article 20(3) (protection against self-incrimination) may offer indirect safeguards. Although the Digital Personal Data Protection Act, 2023 represents legislative progress, it does not expressly encompass brain or neural data.
Q3. What are neurorights?
A: Neurorights are a set of proposed human rights that include mental privacy, cognitive liberty, psychological continuity, and protection from algorithmic manipulation. These rights aim to protect individuals from unauthorized access to or control over their neural activity.
Q4. Can brain-mapping be used as evidence in Indian courts?
A: The Supreme Court in Selvi v. State of Karnataka (2010) ruled that brain-mapping or similar techniques cannot be conducted without consent and cannot be treated as evidence if obtained involuntarily. This protects individuals from being forced to reveal mental content.
Q5. What can India learn from Chile’s neuro-rights legislation?
A: Chile’s constitutional amendment serves as a pioneering example of legally recognizing the right to mental privacy and cognitive integrity. India can adopt similar protections, either through a dedicated neurorights bill or amendments to existing laws like the IT Act or Digital Personal Data Protection Act.
Q6. How can individuals protect themselves in the meantime?
A: Until formal laws are enacted, individuals must rely on consent protocols, device privacy settings, and advocacy for stronger legal safeguards. Public awareness, academic discourse, and litigation will play key roles in shaping legal standards for neurotechnology.
