INTRODUCTION
The integration of artificial intelligence with neurotechnology has turned what was once considered science fiction into an emerging reality. Advanced Brain-Computer Interfaces (BCIs), including implantable systems, can enable people with paralysis to communicate and interact with digital devices through neural signals.[1] These developments promise significant benefits in healthcare, but they also raise a fundamental question: who should control information generated by the human mind?
Mental privacy may be understood as protection against unauthorised access to, surveillance of, or interference with a person’s thoughts, emotions, memories, intentions, and other cognitive processes. Unlike ordinary personal data, neural data can provide access to information closely connected with a person’s mental life. The increasing ability of neurotechnology to record, decode, and potentially influence neural activity therefore makes mental privacy an important legal and ethical concern.[2]
In India, privacy is constitutionally protected, but mental privacy has not yet been expressly recognised as a distinct right in the context of neurotechnology. As these technologies develop, the existing constitutional and data-protection framework must be examined to determine whether it adequately protects autonomy, dignity, and freedom of thought. The central argument of this article is that India should recognise mental privacy as an intrinsic aspect of the right to privacy and develop safeguards specifically suited to neural data.
THE TECHNOLOGICAL REALITY: FROM THOUGHT TO DATA
Recent advances in neurotechnology have transformed the interaction between the human brain and digital systems. BCIs can record and decode neural signals, while technologies such as electroencephalography (EEG), functional magnetic resonance imaging (fMRI), and implantable devices can translate aspects of brain activity into digital commands. These developments have already demonstrated the potential of neurotechnology to assist people with severe disabilities in communication and interaction with external devices.[3]
Building on the ability of BCIs to capture and translate neural signals, the next stage of neurotechnology involves using artificial intelligence to interpret those signals. The significance of these developments increases when artificial intelligence is used to interpret complex neural patterns. AI-assisted systems can identify patterns in neural activity and, in some contexts, infer information about emotions, intentions, language, or other cognitive states. This creates a direct link between technological capability and privacy risk: the more accurately neural signals can be interpreted, the more consequential the collection, storage, sharing, and misuse of neural data becomes.4[4]
This shift challenges traditional privacy frameworks. Neural data is not merely another category of personal information; depending on the technology and context, it may provide insights into highly intimate aspects of a person’s mental life. Scholars have therefore argued for stronger protection of mental privacy and related interests such as cognitive liberty and mental integrity.[5]
THE LEGAL LANDSCAPE IN INDIA: GAPS AND CHALLENGES
India’s data-protection framework has evolved significantly, particularly with the enactment of the Digital Personal Data Protection Act 2023 (DPDP Act). The Act establishes a framework for the processing of digital personal data, but it does not expressly create a distinct legal category for neural data requiring heightened protection.[6] This is significant because the risks associated with neural data may extend beyond the risks ordinarily associated with digital personal information.
The constitutional position provides a broader foundation. Article 21 protects life and personal liberty, and the Supreme Court in Justice K S Puttaswamy (Retd) v Union of India recognised privacy as a fundamental right.[7] The judgment provides a strong constitutional basis for protecting informational and decisional autonomy. However, Indian courts have not yet expressly developed a doctrine of mental or cognitive privacy in the context of neurotechnology. The emerging nature of brain-data technologies therefore presents a regulatory question that existing jurisprudence has not specifically addressed.
Alongside the DPDP Act and the constitutional protection of privacy, the Mental Healthcare Act 2017 also demonstrates the importance of confidentiality and individual autonomy in the mental-health context. Section 23 recognises a right to confidentiality in respect of a person’s mental health, mental healthcare, treatment, and physical healthcare.8 However, this protection operates within the statutory framework of mental healthcare and does not specifically regulate the collection, processing, inference, or commercial use of neural data generated by emerging neurotechnologies. Consequently, the DPDP Act, constitutional privacy jurisprudence, and the Mental Healthcare Act each provide relevant protections, but none was designed specifically to address the distinctive risks created when brain activity becomes a source of data.[8]
This gap becomes particularly important if employers, insurers, technology companies, or law-enforcement agencies seek access to neural information. Questions concerning consent, purpose limitation, retention, secondary use, inference, discrimination, and governmental access would require clear legal standards. Without such safeguards, unauthorised collection or analysis of neural data could affect not only informational privacy but also personal autonomy, dignity, and cognitive liberty.
GLOBAL DEVELOPMENTS: THE RISE OF NEURORIGHTS
The rapid development of neurotechnology has encouraged countries and international organisations to reconsider whether conventional privacy protections are sufficient to protect the human mind. The concept of ‘neurorights’ has emerged in this context, seeking stronger protection for interests such as mental privacy, mental integrity, cognitive liberty, and psychological continuity.[9] The underlying concern is that information derived from the brain may warrant heightened protection because it is directly connected to an individual’s mental processes.
Chile is an important example. In 2021, Chile became the first country to incorporate neurorights-related protection into its constitutional framework, including special safeguards for brain activity and information derived from it.[10] The Chilean experience illustrates how constitutional protection can be used to respond proactively to technological developments while attempting to preserve human dignity and mental autonomy.
International organisations have also developed governance frameworks relevant to neurotechnology. UNESCO’s Recommendation on the Ethics of Artificial Intelligence, adopted in 2021, places human rights, dignity, privacy, and autonomy at the centre of AI governance.[11] The OECD Recommendation on Responsible Innovation in Neurotechnology, adopted in 2019, specifically addresses responsible innovation, safety, inclusivity, oversight, societal deliberation, and the safeguarding of personal brain data.[12] Together, these developments demonstrate a growing international emphasis on governance that protects rights while allowing responsible technological innovation.
These international developments are therefore relevant to India not as models to be copied wholesale, but as comparative guidance. India need not simply replicate foreign models; rather, it can draw from them while adapting safeguards to its constitutional framework and domestic regulatory institutions. A balanced approach should encourage beneficial medical and scientific uses of neurotechnology while ensuring that mental privacy and cognitive liberty are not treated as secondary to technological progress.
THE WAY FORWARD: TOWARDS A MENTAL PRIVACY FRAMEWORK IN INDIA
India should adopt a proactive and rights-based framework for mental privacy. The following measures can strengthen existing protections:
- Amend the DPDP Act, 2023, or adopt appropriate subordinate or sector-specific measures, to provide enhanced safeguards for neural data, recognising its potentially intimate and sensitive character.
- Require meaningful and informed consent, purpose limitation, data minimisation, retention limits, and strict controls on secondary use in the collection and processing of neural data.
- Establish independent regulatory and ethical oversight for high-risk neurotechnologies, particularly where neural data is collected outside conventional clinical settings.
- Develop judicial doctrine recognising mental privacy as an aspect of the constitutional right to privacy under Article 21, while preserving the legitimate uses of neurotechnology in healthcare and research.
- Develop ethical and technical standards for research, clinical use, and commercial deployment of neurotechnologies, including safeguards against discrimination, manipulation, unauthorised access, and misuse.
CONCLUSION
Neurotechnology offers transformative possibilities for healthcare, communication, and human capability, but it also creates a new dimension of privacy risk: access to information generated by the human brain. India’s constitutional right to privacy, the DPDP Act 2023, and protections under the Mental Healthcare Act 2017 provide important foundations, but they do not comprehensively address the distinctive challenges of neural data.[13]
India should therefore move towards a dedicated mental-privacy framework that treats neural data as deserving heightened safeguards and places autonomy, dignity, informed consent, and cognitive liberty at its centre. Comparative developments, particularly Chile’s constitutional approach and international standards developed by UNESCO and the OECD, demonstrate that legal systems can respond to neurotechnology before technological capability outpaces legal protection. The objective should not be to hinder innovation, but to ensure that innovation remains compatible with the individual’s freedom to think, decide, and exist without unjustified intrusion into the mind.
Author(s) Name: Sakshi Singh
References:
[1] Łukáš Szoszkiewicz and Rafael Yuste, ‘Mental privacy: navigating risks, rights and regulation’ (2025) 26 EMBO Reports 3469–3473 <https://doi.org/10.1038/s44319-025-00505-6> accessed 08 July 2026
[2] Ibid
[3] Rafael Yuste et al., ‘Four ethical priorities for neurotechnologies and AI’ (2017) 551 Nature 159–163 <https://doi.org/10.1038/551159a> accessed 08 July 2026
[4] Nita A Farahany, The Battle for Your Brain: Defending the Right to Think Freely in the Age of Neurotechnology (St Martin’s Press 2023)
[5] Marcello Ienca and Roberto Andorno, ‘Towards new human rights in the age of neuroscience and neurotechnology’ (2017) 13 Life Sciences, Society and Policy 5 <https://doi.org/10.1186/s40504-017-0050-1> accessed 08 July 2026
[6] Digital Personal Data Protection Act 2023, s 3
[7] Justice K S Puttaswamy (Retd) and Anr v Union of India and Ors (2017) 10 SCC 1
[8] Mental Healthcare Act 2017, s 23
[9] Ienca (n 5)
[10] Law No 21383 (Chile 2021); Sergio Ruiz et al., ‘Neurorights in the Constitution: from neurotechnology to ethics and politics’ (2024) 379 Philosophical Transactions of the Royal Society B 20230098 <https://doi.org/10.1098/rstb.2023.0098> accessed 08 July 2026
[11] ‘Recommendation on the Ethics of Artificial Intelligence’ (UNESCO, 23 November 2021) <https://www.unesco.org/en/legal-affairs/recommendation-ethics-artificial-intelligence> accessed 08 July 2026
[12] ‘Recommendation of the Council on Responsible Innovation in Neurotechnology’ (OECD, 11 December 2019) <https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0457> accessed 08 July 2026
[13] Digital Personal Data Protection Act 2023; Mental Healthcare Act 2017