The Dawn of Neurotechnology and its Legal Challenges

The 21st century has witnessed unprecedented advancements in neurology that were once confined to the realms of science fiction. In January 2024, Elon Musk’s Neuralink achieved a groundbreaking milestone by successfully implanting its first brain chip in a human subject,¹ marking a pivotal moment in medical and technological history. This development, while revolutionary, has brought to the forefront, complex, legal and ethical questions that existing legal frameworks worldwide, including India’s, are ill-equipped to address. The ability to record, interpret, and potentially manipulate brain activity raises fundamental concerns about mental privacy, cognitive liberty, and the very essence of human autonomy.

India currently stands at a critical juncture where rapid technological progress threatens to outpace legal protections. The Digital Personal Data Protection Act, 2023 (DPDPA),² is a significant step forward in data privacy regulation, however, it conspicuously fails to address the unique challenges posed by neural data.³ The legislative gap becomes particularly alarming when considering the proliferation of neurotechnology applications in India, ranging from medical diagnostics to consumer-grade brain-computer interfaces (BCIs). The absence of specific safeguards for brain data creates a dangerous vacuum where cognitive information — the most intimate form of personal data — remains vulnerable to commercial exploitation and State surveillance.

This article argues for recognising “neuro-rights” as fundamental rights under Article 21⁴ of the Indian Constitution⁵, which guarantees the right to life and personal liberty. The analysis proceeds in four parts: first, examining the current state of neurotechnology and its implications; second, analysing the constitutional basis for neuro-rights in Indian jurisprudence; third, evaluating international approaches to neuro-rights protection; and finally, proposing a comprehensive framework for safeguarding cognitive liberty in India.

Neurotechnology and its constitutional implications

Modern neurotechnology encompasses a wide array of devices, and applications that interface directly with the human nervous system. These technologies can be broadly categorised into three groups: monitoring devices that record brain activity, stimulation devices that influence neural processes, and bidirectional systems that both record and stimulate. The potential applications range from treating neurological disorders like Parkinson’s disease and Epilepsy to enhancing cognitive abilities in healthy individuals.

However, these remarkable capabilities come with significant risks. BCIs capable of reading brainwave patterns could potentially decode thoughts, emotions, and intentions with increasing accuracy. Companies could use this data for targeted advertising based on subconscious preferences, while the Government might employ it for surveillance purposes. More alarmingly, the ability to write information directly into the brain raises possibilities of cognitive manipulation and thought control. These concerns are not merely hypothetical — current consumer neurotechnology devices already collect substantial neural data, often without adequate informed consent or data protection measures.

The commercial neurotechnology market in India is growing rapidly, with startups like BrainSightAI developing advanced neuroimaging solutions and multinational companies introducing consumer electroencephalography (EEG) headsets. Yet, there exists no specific legislation regulating the collection, storage, or use of neural data. The DPDPA’s definition of sensitive personal data does not explicitly include biometric patterns or other neural information, creating a regulatory blind spot that could have far-reaching consequences for mental privacy and cognitive autonomy.

The Supreme Court’s landmark judgment in K.S. Puttaswamy (Privacy-9J.) v. Union of India⁶ established privacy as a fundamental right under Article 21 of the Constitution. The Court recognised privacy as an intrinsic component of human dignity and autonomy, with Justice Chandrachud’s majority opinion specifically acknowledging “informational privacy” as a protected aspect. This constitutional recognition provides a robust foundation for extending privacy protections to neural data.

Indian jurisprudence has consistently expanded the scope of Article 21 to encompass new dimensions of personal liberty in response to societal and technological changes. The right to bodily integrity,⁷ sexual autonomy⁸ and even access to the internet⁹ have all been recognised as facets of the fundamental right to life and personal liberty. Cognitive liberty — the right to autonomy over one’s mental processes and neural data — represents the logical next step in this evolutionary process.

The judiciary has demonstrated its willingness to address legislative gaps in emerging areas through innovative interpretations of fundamental rights. The Vishaka guidelines¹⁰ for preventing sexual harassment at the workplace were formulated by the Supreme Court in the absence of specific legislation. This serves as a precedent for judicial intervention in uncharted legal territories. A similar approach could be adopted to protect neuro-rights until comprehensive legislation is enacted.

Global lessons and a roadmap for India

The global community has begun recognising the urgent need for neuro-rights protection, with Chile leading this movement through groundbreaking constitutional amendments. In 2021, Chile became the first country to explicitly recognise neuro-rights in its Constitution, prohibiting the “sale, commercialisation and arbitrary use” of brain data.¹¹ This pioneering legislation establishes four protections: the right to mental privacy, the right to personal identity, the right to free will, and the right to equal access to neurotechnology.

The European Union’s General Data Protection Regulation (GDPR) offers indirect protection for neural data by classifying it as a special category of biometric data under Article 9¹². This classification subjects brain data to stringent processing requirements, including explicit consent and prohibitions on commercial exploitation. However, the GDPR was not specifically designed to address the unique challenges of neurotechnology, leaving certain gaps in protection.

The Organisation for Economic Cooperation and Development (OECD) has developed guidelines for responsible innovation in neurotechnology,¹³ emphasising the principles of privacy and data protection, accountability, and inclusive governance. These international developments demonstrate a growing consensus about the need for specialised legal frameworks to govern neurotechnology and protect cognitive rights.

India requires a multi-pronged approach to effectively safeguard neuro-rights in the face of rapidly advancing technology. Immediate measures should include amending the DPDPA to explicitly classify neural data as sensitive personal data, subject to enhanced protections. The definition should encompass all forms of brainwave patterns, neural signals, and any data derived from monitoring or analysing brain activity.

Medium-term reforms should focus on developing comprehensive neurotechnology regulation. A proposed Neurotechnology Regulation Act could establish:

(a) strict consent requirements for neural data collection and use;

(b) prohibitions on cognitive manipulation and subliminal influence;

(c) limitations on commercial use of brain data;

(d) special protections for vulnerable populations; and

(e) establishments of an independent regulatory authority.

For long-term protection, constitutional recognition of cognitive liberty would provide the strongest safeguard. This could be achieved either through interpretation expanding Article 21 or through a constitutional amendment explicitly recognising neuro-rights. The latter approach would provide greater clarity and permanence, following Chile’s pioneering example.

Conclusion

Critics of neuro-rights recognition raise several objections that warrant consideration. Some might argue that premature regulation could stifle innovation in medical neurotechnology. However, a carefully balanced regulatory framework can promote responsible innovation while preventing misuse. The history of biotechnology regulation demonstrates that clear guidelines often foster rather than hinder scientific progress by establishing predictable parameters for research and development.

Another potential objection concerns enforcement challenges, particularly regarding multinational neurotechnology companies. India could address this through the extraterritorial application of its laws (similar to GDPR) and international cooperation on neurotechnology governance. The recent Group of 20 (G20) consensus on digital economy principles provides a potential platform for such cooperation.

As neurotechnology advances from medical applications to consumer products, India faces a critical choice between proactive protection of cognitive liberty, and reactive measures after potential abuses occur. The constitutional framework exists to recognise neuro-rights as fundamental protections; what is needed is judicial and legislative will to actualise these protections.

The recognition of cognitive liberty under Article 21 would represent a natural evolution of India’s privacy jurisprudence, consistent with both constitutional principles and international human rights norms. More than just a legal technicality, this recognition would affirm the fundamental truth that in a democratic society, even our thoughts must remain our own. As technology threatens to penetrate this last bastion of personal privacy, India must act decisively to protect the sanctity of human mind in the digital age.