Author: Jhanvi Rajput
To the Point
The convergence of neuroscience and artificial intelligence is no longer confined to science fiction. With brain-computer interfaces (BCIs) and neurotechnology advancing at breakneck speed rom Elon Musk’s Neural ink human trials to non-invasive brain-wave reading headsets the sanctity of our mental privacy faces an unprecedented threat. Yet, India’s constitutional and statutory frameworks, while progressive in digital privacy, remain silent on neuro-privacy. As we embrace AI-driven healthcare, neuro-marketing, and cognitive enhancement technologies, the question is no longer whether mind-reading is possible, but whether our Constitution safeguards us against the misuse of our most intimate data our thoughts.
Use of Legal Jargon
At the core of this issue lie the doctrines of informational privacy, cognitive liberty, and mental integrity. While informational self-determination has found recognition under Article 21 through the landmark Puttaswamy judgment, the scope of this right in the context of neuronal data remains untested.
Globally, neuro-rights the emerging corpus of fundamental guarantees to protect freedom of thought, mental privacy, and psychological continuity are entering constitutional and statutory discourse. Chile, in 2021, became the first nation to enshrine explicit neuro-rights. In contrast, India’s Information Technology Act, 2000 and the new Digital Personal Data Protection Act, 2023 neither define nor regulate neural data as sensitive personal data (SPD) distinct from other biometric markers. As wearable BCIs become commercially viable and cognitive surveillance a plausible reality in workplaces and law enforcement, this lacuna calls for immediate doctrinal and legislative attention.
The Proof
Technological Context : BCIs now decode EEG signals to control devices, diagnose brain disorders, and even interpret emotional states. Meta (Facebook) funded non-invasive neural interfaces for AR/VR applications. Chinese classrooms already deploy ‘focus headbands’ to monitor students’ attention levels.
According to Fortune Business Insights (2024), the global BCI market is projected to hit USD 5.5 billion by 2030, growing at a CAGR of 17%. India’s BCI startups (e.g., NeuroLeap, BrainSightAI) are catching up, targeting mental health, neurofeedback training, and education.
Real-Life Concerns : Workplace Monitoring: Companies abroad have tested EEG headbands to gauge workers’ fatigue and concentration a practice that, if unchecked in India, risks mental surveillance without explicit consent.
Forensic Use: Law enforcement may someday leverage BCIs for lie detection, memory retrieval, or suspect profiling raising concerns of self-incrimination and Article 20(3).
Neuro-Marketing: Corporations could harvest consumer neural responses to fine-tune ads, nudging decisions subconsciously challenging the doctrine of free consent under the Contract Act, 1872, and consumer rights.
Legislative Lag : While the Digital Personal Data Protection Act, 2023 defines ‘biometric data’, it does not address neural dataspecifically. EEG or fMRI outputs fall in a grey zone — potentially more revealing than DNA, yet legally undefined.
In contrast, Chile’s Law No. 21.383 (2021) amended its Constitution to protect the mental integrity of its citizens. Spain and the EU are debating similar safeguards under the AI Act. The US has no federal neuro-right law, but states like New York and California are proposing bills regulating neural data as sensitive.
Abstract
Neurotechnology’s promise of curing brain disorders and augmenting human cognition must be balanced with the right to cognitive liberty the freedom to control one’s own thoughts and mental processes without unauthorized interference.
India’s constitutional right to privacy is robust in its textual scope, as reaffirmed by Justice K.S. Puttaswamy (Retd.) v. Union of India (2017). However, statutory privacy regimes like the DPDP Act or the IT Rules, 2021, do not explicitly recognize the unique nature of brain data.
This article argues that without clear legal recognition of neuronal data as sensitive personal data, India risks exposing its citizens to exploitative neuro-marketing, coercive neuro-forensics, and mental surveillance. The piece proposes adding explicit neuro-rights to India’s privacy discourse through constitutional interpretation and statutory amendments, aligned with global best practices.
Case Laws
Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) 10 SCC 1
Recognized privacy as a fundamental right under Article 21. The nine-judge bench read informational privacy as an aspect of dignity and autonomy laying a doctrinal basis to expand privacy to neuro-data.
Selvi & Ors v. State of Karnataka (2010) 7 SCC 263
The Supreme Court struck down involuntary narco-analysis, polygraph, and brain mapping as violative of Article 20(3) (right against self-incrimination) and Article 21. This case directly touches on mental privacy and the non-consensual extraction of thought-related information.
Shreya Singhal v. Union of India (2015) 5 SCC 1
This case, though about free speech and vague restrictions under Section 66A IT Act, reinforces the principle that technological developments must be balanced with clear, narrowly tailored regulations a useful parallel for neuro-rights.
Conclusion
India stands on the cusp of a neuro-tech revolution. But without statutory recognition of brain data as uniquely sensitive, we risk undermining the constitutional guarantee of privacy. The Puttaswamy judgment opened the door to informational self-determination but did not anticipate BCIs or cognitive surveillance. The Selvi ruling on narco-analysis shows that the Supreme Court recognizes mental privacy. Together, these cases create fertile ground for extending privacy to thoughts and brain signals the final frontier of personal autonomy. India’s Parliament must learn from Chile’s pioneering neuro-rights model and the EU’s ongoing debate under the AI Act. A new chapter on neuro-privacy in the forthcoming Digital India Act could define neural data distinctly, prohibit non-consensual collection, and impose strict consent standards .If India aspires to lead in AI and neuro-tech innovation while upholding its constitutional ethos of dignity and autonomy, the time to legislate neuro-rights is now.
FAQs
Q1. What are neuro-rights?
Neuro-rights are emerging human rights protecting mental privacy, cognitive liberty, psychological continuity, and freedom from unauthorized brain data collection.
Q2. Does India have any law on neuro-rights?
No. While the right to privacy under Article 21 provides a doctrinal basis, there is no explicit mention of brain data or neuro-technologies under current laws.
Q3. Can existing privacy laws cover neural data?
India’s DPDP Act, 2023 defines biometric data but does not specifically regulate brainwave data or neural signals, which can reveal thoughts, emotions, or intentions.
Q4. Which countries have neuro-rights laws?
Chile became the first country to enshrine neuro-rights in its Constitution. Spain and the EU are debating inclusion under AI governance frameworks. The US has no federal law but state-level bills exist.
Q5. What is the risk if India does not act?
Without clear rules, corporations, employers, or state agencies could exploit neural data for surveillance, profiling, or coercive interrogation, infringing on mental privacy.
Q6. What legal reforms are recommended?
India should amend its data protection laws to classify neural data as sensitive personal data. Consent standards must be explicit, with prohibitions on non-consensual neuro-data collection. Courts should expand informational privacy under Article 21 to cover mental privacy.
References
Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) 10 SCC 1.
Selvi & Ors v. State of Karnataka (2010) 7 SCC 263.
Shreya Singhal v. Union of India (2015) 5 SCC 1.
OECD, Recommendation on Responsible Innovation in Neurotechnology (2019).
Yuste et al., Nature, Vol. 551 (2017).
Nita A. Farahany, The Battle for Your Brain (2023).
Digital Personal Data Protection Act, 2023, Act No. 22 of 2023.
Chile, Law No. 21.383, Diario Oficial (2021).
Fortune Business Insights, “Brain-Computer Interface Market, 2024–2030”.
Meta Reality Labs Research, 2021 White Paper.
