A CONSTITUTIONAL ANALYSIS FOR INDIA
INTRODUCTION
In January 2024, Elon Musk’s Neuralink implanted its first brain chip in a human subject – a coin-sized array of electrodes that allowed a paralyzed patient to control a cursor with thought alone. It was simultaneously a medical milestone and a jurisprudential emergency. Technology that can read, interpret, and potentially manipulate brain activity already exists; the legal frameworks meant to govern it, almost everywhere, do not. Nowhere is this gap more consequential than in India, a nation of 1.4 billion people with an exploding biotech sector and a constitutional tradition that has expansively interpreted the right to life and personal liberty under Article 21 to protect every dimension of human dignity.[1]
Neurotechnology encompasses any device or method that interfaces directly with the nervous system to record, stimulate, or modify neural activity. The global neurotech market is projected to reach USD 24 billion by 2030, and India’s mix of artificial intelligence expertise, genomic diversity, and a rising neurological disease burden positions it as a significant player in both the development and deployment of these technologies. The same devices that restore speech to an ALS patient can also extract preferences, infer emotions, and reconstruct interior mental states of subjects who never agreed to share them. Addressing this requires identifying the specific rights at stake, testing India’s existing constitutional architecture against them, and prescribing a coherent legislative response.[2]
THE CONCEPT OF NEURORIGHTS
The concept of ‘Neurorights’ is a category of rights specifically designed to protect the human mind from technological intrusion and was articulated most influentially by neuroscientist Rafael Yuste and philosopher Sara Goering in 2017. Their framework, later adopted by the Neurorights Foundation, identifies five core protections that map directly onto the risks posed by current and emerging neurotechnology.[3]
First, mental privacy – the right to keep one’s thoughts, emotions, and cognitive processes inaccessible to external parties without explicit, informed consent.
Second, cognitive liberty – the right to control one’s own mental processes, including the freedom to refuse cognitive enhancement or alteration.
Third, mental integrity – the right to be protected from unauthorized or harmful alterations to neural activity.
Fourth, psychological continuity – the right to preserve one’s identity and sense of self against interference by neurotechnology.
Fifth, equal access to cognitive enhancement – the right not to be disadvantaged in a world where augmentation becomes a determinant of social and economic opportunity.
These are not abstract aspirations. Neural data captured by a consumer BCI headset is already distinctive enough to re-identify individuals across contexts, rendering standard anonymization techniques largely ineffective. Once neural inferences become feasible outside the laboratory, they can be repurposed for targeted persuasion, workplace monitoring, behavioural profiling, and automated decisions that affect access to essential services.
THE CONSTITUTIONAL FOUNDATION
India begins from a position of strength. In the landmark judgment Justice K.S. Puttaswamy (Retd.) v. Union of India, a nine-judge bench of the Supreme Court unanimously held that privacy is a fundamental right guaranteed by Article 21 of the Constitution.[4] Justice D.Y. Chandrachud’s majority opinion specifically recognised ‘informational privacy’ as a protected dimension – the right of individuals to determine what happens to personal information about them. Neural data touches all three aspects of privacy that Puttaswamy identified: informational, decisional, and bodily. The case established not merely a right but a proportionality test: any state or private interference with neural data must be legal, necessary, proportionate, and subject to procedural safeguards.
India has also already confronted technology-aided access to the mind in criminal proceedings. In Selvi v. State of Karnataka, the Supreme Court held that narco-analysis, polygraph, and brain-mapping tests administered without consent violate the right against self-incrimination under Article 20(3) and the right to privacy under Article 21.[5] The Court’s reasoning – that compelled mental disclosure is constitutionally impermissible – maps directly onto the neurorights framework. It provides a jurisprudential foundation upon which broader neurorights protections can be constructed without requiring doctrinal innovation.
EXISTING LEGISLATION: NECESSARY BUT INSUFFICIENT
India’s Digital Personal Data Protection Act, 2023 is a significant advance in privacy regulation. However, its treatment of neural data is a glaring omission.[6] The Act’s definition of sensitive personal data does not explicitly include biometric neural patterns or other neurodata, creating what legal scholars have termed a ‘regulatory blind spot’ with far-reaching consequences. Neural data is not merely another category of biometric information. Unlike a fingerprint or retinal scan – which are relatively static identifiers – brain signals are dynamic, continuous, and inferentially rich. They can reveal not just who a person is but what they are thinking, feeling, and likely to do next.
Scholars at the Vidhi Centre for Legal Policy have argued persuasively that static, one-time consent – the standard DPDP model – is a particularly poor fit for neural data, given that the same data can be reinterpreted as decoding models improve, creating risks that did not exist at the time of original consent.[7] Processing neurodata under this general framework would dramatically underestimate its sensitivity and leave individuals without meaningful protection against the most intimate form of surveillance imaginable.
GLOBAL PRECEDENTS AND JUDICIAL RESPONSE
The international response to neurotechnology risks has gathered momentum. Chile amended its constitution in 2021 to protect brain activity and neurodata as a fundamental right and remains the first jurisdiction in the world to do so and its Supreme Court has already ordered the deletion of illegally collected neural data.[8] By constitutionalizing neurorights directly, Chile ensured that these protections cannot be diminished by ordinary legislation. India’s constitutional tradition makes a similar approach viable, either through judicial expansion of Article 21 or through a targeted constitutional amendment.
In the United States, Colorado became the first state to enact neural data protection law in April 2024, defining neural data collected by non-medical consumer neurotechnology devices and establishing rights of access, correction, and deletion. California followed in September 2024, extending existing privacy protections explicitly to neural data.[9] At the international level, UNESCO published its first global ethical guidelines on neurotechnology in 2025, mandating safety checks, prohibiting coercive use in workplaces, and recommending a ban on military applications without independent oversight.[10]
India, meanwhile, has no specific legislation. The reliance on DPDP Act provisions and Article 21 jurisprudence, without targeted neurotech rules, leaves critical risks unaddressed. Academic proposals for a ‘Neurotechnology Act’ have been circulated but not tabled in Parliament. The warning that delay is not a neutral choice is borne out by the cautionary tale of social media regulation: by the time lawmakers moved to constrain data-harvesting platforms, behavioural surveillance had become so economically entrenched that meaningful regulation had to fight against enormous commercial and cultural inertia. Neurotechnology has not yet reached mass adoption in India – this is precisely the window in which protective frameworks are cheapest to build and most costly to forgo.[11]
CONCLUSION
The constitutional foundations for neurorights in India are already in place. Puttaswamy established the principle of informational privacy. Selvi established the precedent against compelled mental disclosure. What remains is the legislative will to translate these principles into specific, enforceable protections for the last frontier of human privacy – the mind itself. Any comprehensive framework must include: explicit recognition of neural data as a distinct and heightened category of sensitive information under the DPDP Act; dynamic consent mechanisms that allow individuals to withdraw or revise authorization as decoding capabilities improve; an independent National Neurotechnology Ethics Board empowered to license research and adjudicate complaints; and statutory prohibitions on coercive use in employment, interrogation, and military contexts.
India should also seriously consider a moratorium on high-risk consumer neurotechnology until regulatory standards are established, analogous to the approach taken in pharmaceutical regulation for novel drugs. Whether the ultimate vehicle is a dedicated Neurotechnology Act, a constitutional amendment, or judicial expansion of Article 21, the direction is clear. Chile constitutionalized neurorights in 2021. Colorado and California acted in 2024. UNESCO published global guidelines in 2025. India, with one of the world’s most expansive constitutional traditions of fundamental rights, has the doctrine, the precedent, and the urgency.
The brain is not merely another data source. It is the seat of identity, agency, and human dignity. In extending constitutional protection to the mind, India would not be departing from its constitutional tradition; it would be fulfilling it at the moment of its most consequential technological test.
Author(s) Name: Yogesh Badgujar (Shri Balaji Law College)
References:
[1] Kamal Kumar, ‘The Dawn of Neurotechnology and its Legal Challenges’ (SCC Online, 17 October 2025) <https://www.scconline.com/blog/post/2025/10/17/the-dawn-of-neurotechnology-and-its-legal-challenges/> accessed 05 June 2026
[2] Susmit Mukherjee, ‘Securing Neuro-Privacy: An Argument for Recognition and Practical Regulation’ (Vidhi Centre for Legal Policy, 17 September 2025) <https://vidhilegalpolicy.in/blog/securing-neuro-privacy/> accessed 05 June 2026
[3] Rafael Yuste et al., ‘Four ethical priorities for neurotechnologies and AI’ (2017) 551 Nature 159 <https://www.nature.com/articles/551159a> accessed 05 June 2026
[4] Justice K S Puttaswamy (Retd) and Anr v Union of India and Ors (2017) 10 SCC 1
[5] Selvi and Ors v State of Karnataka and Anr (2010) 7 SCC 263
[6] Digital Personal Data Protection Act 2023
[7] Mukherjee (n 2)
[8] ‘Chile: Pioneering the protection of neurorights’ (UNESCO, 21 March 2022) <https://courier.unesco.org/en/articles/chile-pioneering-protection-neurorights> accessed 05 June 2026
[9] HB24-1058 (Colorado); AB 3048 (California )
[10] ‘Ethics of neurotechnology: UNESCO adopts the first global standard in the cutting-edge technology’ (UNESCO, 08 November 2025) <https://www.unesco.org/en/articles/ethics-neurotechnology-unesco-adopts-first-global-standard-cutting-edge-technology> accessed 05 June 2026
[11]‘ Pavithra Prakash and Tharani M, ‘Regulating Neurodata and Neurorights’ (2025) 3(6) International Journal of Law and Social Sciences <https://ijlsss.com/regulating-neurodata-and-neurorights/> accessed 05 June 2026