NEUROTECH AND THE INDIAN CONSTITUTION

ABSTRACT:

Innovative application of brain-computer interfaces (BCIs) and neurotechnology represents a new phase of human machine interaction, as thought can be read, stored and even controlled. Although such developments are revolutionary in terms of healthcare and communication, they constitute uncharted harms to individual autonomy, mental integrity, and privacy.[i] In India, even though the right to privacy has been legally incorporated into the constitution of India under Justice K.S. Puttaswamy v. Union of India, there are no laws protecting mental privacy and cognitive data.[ii] The article addresses the necessity to identify and address the right to mental privacy with regard to the development of new neurotechnologies. The article supports an ambitious legal framework based on Chilean NeuroRights Bill and international law to protect the cognitive liberty in Article 21 of Indian Constitution through a doctrinal and comparative study.[iii] The paper concludes by recommending a specific neuro-rights order to fill this colossal gap of law.

INTRODUCTION:

In the world of fast technological development, human mind and computer software are being decreasingly differentiated. Mind brain interfaces (BCIs) that were once the episodic dreams of science fiction are now, in fact, a reality and the human brain is now capable of being directly connected to the outer world. Businesses such as Neuralink, Kernel, and Synchron are developing technologies that will be able to record, interpret and transmit neural activity, which will lead to a revolution in medicine, education, and communication. Significantly, up to the mid of 2025, Neuralink could have already completed 9 human BCI implants, by the end of this year, the company plans to complete a larger scale of 20 implants. Though this holds a breakthrough in medical history, the seriousness to investigate its legal consequences also increases.[iv]

Similar to other jurisdictions, India at present does not have a legal framework to regulate the privacy and autonomy of mental processes. Although in Justice K.S. Puttaswamy v. Union of India[v], the Supreme Court upheld the right to privacy as inherent under Article 21 of the Constitution, its acknowledgment has mostly focused on informational and bodily privacy.[vi]  Mental privacy, the concept of defending a person against unwanted access to their neural information or thought control, remains outside legal theory and law.

The notion of neuro-rights is becoming popular around the world. Chile has been the first nation to suggest constitutional amendments to protect cognitive liberty and international agencies such as UNESCO and OECD have also started outlining ethical guidelines pertaining to the use of neurotechnology. Conversely, the legal silence over this matter in India portrays a sharp gap that can lead to citizens being susceptible to the possible abuse of the upcoming neurotechnologies.

In this article, author examines the boundary of mental privacy as a constitutional right in India. It examines the legal problems associated with BCIs, reviews developments around the globe and suggests reforms that will incorporate the concept of cognitive liberty in the Indian legal system. By doing that, it highlights that there is an urgent necessity to legally recognise and regulate the mental privacy as the essential aspect of interpersonal autonomy in the digital age.

RESEARCH METHODOLOGY:

The presented article uses doctrinal and analytical research methodology basing on constitutional interpretation, comparative legal analysis and normative legal theory. The major sources are constitutional provisions especially Article 21 of the Indian Constitution and judgment mainly Justice K.S. Puttaswamy v. Union of India, which identified the right to privacy, as a fundamental right. Legislations, including the Information Technology Act, 2000[vii] and the Digital Personal Data Protection Act, 2023[viii] have also been analysed on their applicability in regards to cognitive data.

Secondary sources may consist of academic articles or research, UNESCO and OECD reports on neuroethics and novel technologies, or even policy-focused texts, in this case the suggested NeuroRights Bill of Chile.[ix] To bring the legal discussion closer to the reality, the article also includes recent scientific and technological advances, such as those made by Neuralink and other active developers of BCI. This two-fold method allows understanding the gap in the legislation concerning mental privacy in India holistically and contributes to the formulation of propositions.

LEGAL FRAMEWORK IN INDIA:

The landmark decision of the Supreme Court of India in the case of Justice K.S. Puttaswamy v. Union of India was instrumental in making India acknowledge the right to privacy as a fundamental right.[x] In a unanimous decision the nine-judge bench stated that the right to privacy is inherent in the right to life and personal liberty guaranteed by Article 21 of the Indian Constitution.[xi] The Court had a wide definition of privacy, which included the areas of body integrity, informational privacy, and decisional autonomy. Yet, the mental privacy, which is the right of individuals to ensure that their thoughts, feelings and neural information is untouchable by a third party, is a future and legally undefined field.

The Information Technology Act, 2000[xii] and its subordinate laws such as the IT (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011, has tried to cover data privacy yet fails to cover neural or cognitive data. Although these structures safeguard information like passwords, financial records, biometrics, they cannot and do not provide security to electrical signals signifying the brain, thought pattern, or emotional reaction to cognitive activities that are being demystified more and more through brain-computer interfaces (BCIs) and wearable neurotech.

The Digital Personal Data Protection Act, 2023 is the latest attempt of a comprehensive regime of data protection in India.[xiii] Although it proposes to include data fiduciaries, consent of the user, and data localization, it fails to classify data pertaining to the mind and that generated by a brainwave as sensitive personal data. This regulatory vacuum is perilous, as neurotech start-ups expand, consumer-level EEG headsets increase, and invasive BCI implants, including those soon to be developed by Neuralink, which scored 9 human brain chip implants by mid-2025 and has a goal of 20 by the end of the year.[xiv]

Such inappropriate legal non-recognition creates a pertinent legal gap where mental privacy can collide with other freedoms- the freedom of thought (Article 25)[xv], the freedom of expression (Article 19(1) (a))[xvi], and protection against self-incrimination (Article 20(3))[xvii] and a host of other freedoms. As an example, when cognitive data of a BCI are used in criminal investigation, may they count as a voluntary confession? In case of an employee, the employer monitoring the neural activity of the latter to analyse productivity, is it a violation of human dignity?

Moreover, the Indian Evidence Act, 1872 shows no clarity as to the admissibility or inadmissibility of brain data in evidence procured.[xviii] This causes serious issues of due process or fairness and autonomy with the growing neurotechnology. In a nutshell, although Indian jurisprudence has built enviable premises on the issue of privacy, its infrastructural and legislative framework still lags behind in responding to the cognitive plane of human rights. The existing framework is reactive and archaic because it does not foresee harms that may arise in the future in connection with the commodification, manipulation, or tracking of the brain data. Although mental privacy is necessarily connected to the concept of personal freedom, it must be unreservedly defined and safeguarded with a specific legal system.

COMPARATIVE ANALYSIS:

With the rapid development of neurotechnology, some jurisdictions have started regulating mental privacy directly or by drawing broad leanings of existing privacy statutes. In contrast to India, where mental privacy is trapped in a legal gap, a few have gone a long way toward developing constitutional guarantees concerning the mental aspect of personhood.

1. Chile: World’s First “Neuro-Rights” Law

Chile has become a front runner in mental privacy laws. In October 2021, it revised its Constitution to include neuro-rights, i.e., mental privacy, free will and safeguarding personal identity. The Chilean Constitution has now established a right to mental integrity in Article 19 which expressly safeguards human beings against technologies that seek to modify neural activity against their will.[xix]

It was preceded by a potential Neuro-Protection Law, a proposed series of regulation of collection, retention, and utilization of brain data. It requires an express consent, imposes severe restrictions on the commercial application, and intends to ban the cognitive manipulation via BCIs. The example of Chile is an active legislative response to the trends of the technological advance.

2. European Union:

Although it does not directly affect brain data, the General Data Protection Regulation is one of the most evolved data protection systems in the world. It is applied to any “personal data” and legal theorists have started to argue that brainwave and neurodata exist in this category as biometric or health data. The GDPR provides the consent of purpose limitation and data minimization, including the necessity of concrete, informed and free consent.[xx]

High-risk AI, such as those that might manipulate human behaviour or emotional conditions, is regulated further in the EU even by the AI Act (adopted in 2024).[xxi] Employing a BCIs and neurotechnologies in the hiring, education, or law enforcement setting would fall under categories of being high-risk, which would mean that many regulatory compliance rules and transparency were involved.

3. United States:

The American legal system is sectorial. Although mental privacy is not directly safeguarded through a federal law, several state legislations and doctrines indirectly brush against mental privacy. To give an example, the Consumer Privacy Act of California offers limited data rights, and the HIPAA covers health related neural data in the clinical environment.[xxii]

In 2023, Senator Ron Wyden introduced the bill, known as the Mind Your Own Business Act, that supports enhanced privacy protection against surveillance of the biometric and cognitive data. Although it was not adopted, it created a great debate about having a federal system of neuro-rights.[xxiii]

Moreover, protection in amendment four and five Constitutions i.e., in unreasonable searches and self-incrimination have been reported to be used in cases that involve the use of brain fingerprinting, lie detectors, and cognitive inference instrument, which challenges the increasing conflict between mental privacy and enforced law enforcement.

INTERNATIONAL HUMAN RIGHTS STANDARDS:

Mental privacy is a major part of the new human rights landscape on a global scale. With the increase in the application of neurotechnologies, brain-computer interface, and AI cognitive mapping, even global governance is starting to address the ethical and legal limbo of the sacredness of thought.

The right to privacy and the freedom of thought, conscience and religion are guaranteed in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights (Article 12 UDHR, Article 17 ICCPR, and Article 18 respectively).[xxiv] Such provisions represent the basis of the notion that personal inner mental world should be uncoerced, unobserved, and unmanipulated. Nevertheless, they were composed in times when the process of extracting and analysing brain data was not yet possible with the aid of digital devices. Therefore, they are useful, although they do not provide significant protections against existing neurotechnological intrusions.

Currently, bioethicists and legal scholars have started promoting another set of rights, called Neuro-Rights. Led by such thinkers as Rafael Yuste, some prominent proposed rights consist of:[xxv]

• Mental privacy: Prevention of unauthorized accumulation, application or diffusion of brain data.
• Liberal right to cognitive liberty: The right to employ or refuse the use of neurotechnologies in a non-forced manner.
• Right to psychological continuity: He or she should not be deprived of his psychological continuity in person, memory and the mental identity should also be absolute.
• Right to equal enjoyment of the benefits of cognitive enhancement: Preventing a new divide in the society because of access to neurotechnological enhancement.

In some countries, preparatory measures have been made. Chile (2021) was the first state to enshrine mental privacy in its constitution, by passing the Neuroprotection Law, which added Article 19 of its Constitution and included protection of brain data and barred its use without cause.[xxvi] This has provided an international example that India can learn.

Exploratory work in the field of AI and bioethics has already been initiated by the Council of Europe and UNESCO, which suggests the necessity to address the issue of cognitive rights in further amendments to international human rights law. Likewise, the OECD Principles on Responsible Innovation in Neurotechnology (2021) bring up the importance of informed consent, transparency, and mental autonomy as the foundations of future regulation.[xxvii]

RECENT ADVANCEMENT:

Neurotechnology is growing at a high pace, and new technologies are making their way and challenging neurotechnician in the field of human-computer interaction, cognitive improvement, and medicine. The rise of these developments also amplifies the theft of mental privacy and autonomy and the ethical control of brain data.

1. Neuralink by Elon Musk:

In January 2024, Neuralink put its first ever human brain chip, “Telepathy,” into a person. It allows people to communicate via thought-to-text i.e. speaking words on a screen using nothing but thoughts; this is beneficial to the paralyzed people.[xxviii] By July 2025, Neuralink has performed 9 implants and plans to provide 20 more implants in people by the end of 2025. The ultimate aim will be to become fully brain-integrated.[xxix]

2. Synchron’s Minimally Invasive BCI:

The U.S.-based rival Synchron has created a non-invasive brain-computer interface that does not involve an open brain surgery. It has gotten FDA Breakthrough Device Designation in 2023 and human trials, in multiple individuals, show promise in assisting individuals with ALS. This alternative is not as risky as Neuralink and is already gaining government research funding in regions such as Australia, the U.S. and Canada.[xxx]

3. Kernel Flow and Real Time Brain Mapping:

Kernel, by Bryan Johnson, was started to build a wearable neuroimaging computer with near-infrared spectroscopy to map real-time brain activity known as Kernel Flow. It is adopted in neuro-marketing, diagnostic analysis, and attention. The device can measure the states of the mind which raise issues of employee monitoring by the employers.[xxxi]

SUGGESTIONS AND THE WAY FORWARD:

With India at the cusp of a neurotechnological upheaval, there is immense urgency to deal with the legal, ethical, and regulatory dark side of innovative brain-computer interface (BCIs), neural implants, and neuro-AI in a proactive manner. Although the Supreme Court’s landmark ruling of Justice K.S. Puttaswamy v. Union of India (2017) identified privacy as a fundamental right under Article 21 of the Constitution, and now the same must be substantially expanded to include sensibilities of mental privacy i.e. the right of each to have his/her thoughts, neural data and cognitive processes not subject to unauthorized access.[xxxii] The understanding of mental privacy as a specific type of constitutional jurisprudence will be the foundation of neurolaw in India.

The most urgent legal need is to establish the meaning and type of neural data by subordinating it to the currently employed data protection structures. The Digital Personal Data Protection Act, 2023[xxxiii] is subject to change, so that it recognises neural data (such as EEG readings, brainwave patterns, and outputs of neurotech devices) as “Sensitive Personal Data”. This will make such data to enjoy increased consent, protection, and control, particularly in issues under the cross-border data sharing, profiling, and business use. To this end, the Government ought to establish a code called the “Neural Data Protection Code” under the proposed Digital India Act, to establish an expansive code to govern the gathering, retention, and use of all brain or brain-related related data.

India ought to set up a National Neuroethics Committee (NNC), a statutory body created to control and monitor neurotechnology and its ethical aspects. This committee, based on bioethics committee under Indian Council of Medical Research (ICMR), should be mandated to review any clinical trials of BCIs, develop ethical guidelines related to deployment of neural-AIs, and advise ministries regarding responsible innovation. It must coordinate with the Ministry of Electronics and Information Technology (MeitY) and the Ministry of Health and Family Welfare to assure the multidisciplinary practice.

Moreover, India should set up an institution of informed neural consent prior to any use of BCI or neuro- interfacing hardware. Similar to the informed consent essential in medical practices, users must get informed about the data collected, its ownership, its use or destruction, as well as the potential biases that may arise in the understanding of the data with the use of AI.

India should also design ethical redlines to limit the use of neurotechnology by military or commerce. Inclusive applications, that is, those applications that are potentially consensual or exploitative need to be listed as being plainly forbidden, including the helmet guards proposed by schools as attention monitors, emotion-sensing appliances at work, and law-enforcement-level surveillance using the brain. Such technologies, besides interfering with privacy also endanger dignity and freedom of thought.

Lastly, the development of neuro-literacy of the Indian people should be emphasized. The ordinary Indian should be educated about the possibilities of neurotechnologies, their hazards, and the rights humans have over the information obtained about their nervous system. Societal preparedness will be crucial according to law awareness acts that have to be conducted publicly as well as, the curriculum changes in schools and interdisciplinary research centres in universities.

CONCLUSION:

The neurotechnology is not only a fascinating phenomenon turning into reality with each passing day but also has the potential to cause significant concerns related to privacy, autonomy, and human dignity. In India, legal protection of neural information and intellectual freedom is badly lacking since it threatens the constitutional commitment of personal freedom identified under Article 21. With the judiciary having already laid the ground with the recognition that privacy is a fundamental right, the case of the human brain requires a more feature-specific and narrow effort within the legal framework. It must be understood that mental privacy, the concept of neural data as sensitive, the need to have informed neural consent, and the dedicated neuroethics paradigm are not conceptions of the future, rather, they are an immediate necessity. In order to safeguard the privacy of the mind in a machine age capable of reading the mind, India needs to take a proactive approach on neurolaw regime, one where innovations and the personal rights are equally respected sentinels.

Reference(S):

[i] Rajesh. P.N. Rap, Brain-Computer Interfacing: An Introduction 1-5 (2013).

[ii] Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 S.C.C. 1 (India).

[iii] Congreso Nacional de Chile, Reforma Constitucional sobre Neuroderechos y Proteccion de la Integridad Mental (2021), available at https://www.bcn.cl/leychile/navegar?idNorma=1166983.

[iv] Vinay Patel, Neuralink Achieves Two Brain Transplants in a Day, Aims for 20 by Year-End Google Deepmind CEO Weighs In, International Bus. Times (July 22, 2025) https://www.ibtimes.co.uk/neuralink-achieves-two-brain-transplants-day-aims-20-year-endgoogle-deepmind-ceo-weighs-1738998

[v] Supra 2

[vi] India Constitution art. 21.

[vii] The Information Technology Act, No. 21 of 2000, India Code (2000).

[viii] The Digital Personal Data Protection Act, No. 22 of 2023, India Code (2023).

[ix] Reforma Constitucional Que Modifica El Articulo, Estableciendo El Derecho a La Identidad Persoanl y a la Integridad Mental, Boletin No. 13.828 – 19, Diario Oficial [D.O.], 25 Oct. 2021 (Chile).)

[x] Supra 2

[xi] Supra 6

[xii] Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011, Gazette of India, G.S.R. 313(E), Apr. 11, 2011 (India).

[xiii] The Digital Personal Data Protection Act, No. 22 of 2023.

[xiv] Supra 4

[xv] India Constitution art. 25.

[xvi] India Constitution art. 19(1)(a).

[xvii] India Constitution art. 20(3).

[xviii] The Indian Evidence Act, No. 1 of 1872.

[xix] Supra 9

[xx] Regulation 2016/679 of the European Parliament, General Data Protection Regulation), 2016 O.J. (L 119) 1.

[xxi] Regulation (EU) 2024/1689 of the European Parliament and of the Council of 13 June 2024, 2024 O.J. (L 1689) 1.

[xxii] California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 – 1798.199 (West 2023).

[xxiii] Mind Your Own Business Act of 2019, S.2637, 116^th Cong. (2019).

[xxiv] G.A. Res. 217A (III), Universal Declaration of Human Rights, Art 12 (Dec. 10, 1948).

International Covenant on Civil and Political Rights, Art. 17, Dec. 16, 1966, 999 U.N.T.S 171.

International Covenant on Civil and Political Rights, Art. 18, Dec. 1, 1966, 999 U.N.T.S 171.

[xxv] Rafael Yuste et al., Four Ethical Priorities for Neurotechnologies and AI, 551 Nature 159 (2017).

[xxvi] Supra 9

[xxvii]  Org. for Econ. Co-operation & Dev. [OECD], Recommendation of the Council on Responsible Innovation in Neurotechnology, https://legalinstruments.oecd.org/api/print?ids=658&Lang=en (2019).

[xxviii] Neuralink, A Year of Telepathy, https://neuralink.com/blog/a-year-of-telepathy/.

[xxix] Supra 4

[xxx] Synchron Receives Green Light from FDA to Begin Breakthrough Trail of Implantable Brain-Computer Interface in U.S., Business Wire, https://www.businesswire.com/news/home/20210728005305/en/Synchron-Receives-Green-Light-From-FDA-to-Begin-Breakthrough-Trial-of-Implantable-Brain-Computer-Interface-in-US.

[xxxi] Bryan Johnson, A New Era for Exploring the Brain, Medium Mar. 7, 2023), https://bryan-johnson.medium.com/a-new-era-for-exploring-the-brain-1a413d7ecc30.

[xxxii] Supra 2

[xxxiii] Supra 8