INTRODUCTION
Imagine being able to use your mind to control computers, restore damaged limbs, or even improve your concentration and memory. We’re already on the way, no matter how futuristic that may sound.
This is made possible by brain-computer interfaces and brain implants that record and interpret brain activity. In short, they create a direct channel of communication between the brain and an external device.
Companies worldwide are competing to monetise this promise. Neuralink, owned by Elon Musk, has already gained FDA approval.[1] To conduct human trials for implantable brain chips. Synchron, another BCI firm, has received regulatory approval for less-invasive implants that enable individuals with paralysis to use their brains to control computers.
But as these technologies advance at breakneck speed, they also expose an unfolding legal vacuum. Brain data—the electric signatures that convey our thoughts, plans, emotions—is possibly the most personal and sensitive type of personal information. India, like the rest of the world, still does not possess any special regulatory framework for BCIs or neural implants, and no idea of neuro-rights to safeguard our mental privacy and mind’s liberty.
This article argues that India must get ahead of the ethical and legal challenges posed by neurotechnology. The country should start a serious conversation on neuro-rights now, so citizens are protected before the technology becomes widespread.
THE CONCEPT OF “NEURO-RIGHTS”
Neuro-rights are proposed as a new category of human rights meant to protect people in the age of neurotechnology. Existing rights like privacy or bodily autonomy cover part of the problem, but not enough.[2]. Many lawyers and ethicists believe they can’t fully address the unique risks that come with technologies capable of directly accessing the brain.
Some of the most significant suggested neuro-rights are:
- Cognitive liberty: Freedom to direct one’s own mental processes and have unmanipulated, unfettered decisions.
- Mental privacy: Freedom to have confidentiality of brain data so that unauthorised recording or decoding of the mind is impossible.
- Psychological continuity: Protection against manipulative or coercive technology that may alter one’s personality or identity in any way without one’s consent.
- Equal access to neuro-enhancements: Prevention of sophisticated BCIs from emerging as social stratification tools, with access to cognitive enhancement depending entirely on economic means.
Across the world, researchers such as Columbia University’s Rafael Yuste have led the charge to document and develop these rights. The OECD has provided recommendations for responsible neurotechnology innovation, calling on governments to foresee and consider ethical risk.
The most significant real-world legal achievement was the Chilean one. Chile was the first nation to decriminalise a constitutional amendment guaranteeing neuro-rights. In 2021, the country of Chile became the world’s first to decriminalise a constitutional amendment that safeguards neuro-rights explicitly.[3]. The law states that brain data is exceptional, sensitive information where express consent must be obtained prior to accessing or using it. The law prohibits technologies that would constitute invasions of individuals’ minds without their knowledge and pursues legal action to safeguard individuals’ mental integrity.
Why then are these rights so vital? Brain data is naturally distinct from other personal data. It is not medical data or biometrics but bare patterns of our purposes, desires, and ideas. Unjustified access invites unprecedented manipulation, surveillance, or discrimination. Neuro-rights seek to establish the principle that technological progress does not occur at the expense of core human dignity and freedom.
LEGAL CHALLENGES AND RISKS
Neural implants and BCIs present a range of legal and ethical risks beyond conventional models of data protection.
- Privacy and Data Protection
Brain data is even more personal than the typical personal data. It may disclose emotions, desires, intentions—even thoughts one may not even know they’re having. Existing data privacy laws, considering health data or biometrics as sensitive, might fail to appreciate the unique threat of incursions into brain data. When companies collect, analyse, or sell brain data without adequate protection, individuals could be subjected to unprecedented privacy invasions.
Moreover, there is the question of ownership of information. Whose brain data does a BCI produce? The patient? The medical device company? The physician? Without regulation, commercial use is just around the corner.[4]
- Consent and Manipulation
Informed consent is at the foundation of ethical clinical care, but brain data has its intricacies. How do you know he or she fully understands and agrees to ongoing monitoring of his or her brain signals, particularly if BCIs capture unconscious intentions?
There are also fears of subliminal manipulation. Imagine targeted advertising that shifts in the moment to your emotional state, or political campaigns that use neural feedback to test out potent messages. These possibilities raise concerns with cognitive liberty and autonomy.[5]
- Criminal Law Complications
BCIs have the potential to transform criminal investigations in chilling ways. Could a court force an accused individual to reveal brain data? Would such a requirement violate the right against self-incrimination of Article 20(3) of the Indian Constitution?[6]
Second, brain data can help prove intent, memory, or recognition.[7] This gives rise to complicated evidence issues. Without guidelines, police may abuse their discretion, pre-empting fundamental rights to secure convictions.
- Accessibility and Inequality
BCIs with high-end functionality will certainly be costly, at least at the beginning. There is a real risk of creating a “neuro-enhanced elite” who have access to cognitive enhancement and exclude others. These gaps in technology have the potential to widen social and economic inequality.
Meanwhile, we must protect individuals with disabilities from forced implantation or experimental exploitation and ensure equal access without stigma or compulsion. Equal access must be facilitated through policy while preventing forced implantation or experimental exploitation of the vulnerable.
INDIA’S CURRENT LEGAL FRAMEWORK: GAPS
India’s current legal and regulatory frameworks do not sufficiently address the threats presented by neural implants and BCIs.
- Personal Data Protection Act (PDP Act)
India’s new Personal Data Protection Act[8] puts health data and biometrics into the category of “sensitive personal data.” Brain data could arguably fall into these categories, but no specific mention of their greater sensitivity exists.
For instance, the PDP Act does not attempt to define mental privacy or freedom of mind. It does not even consider the fact that brain data may have subconscious intentions or thoughts. And it does not touch on the question of ownership of brain data, how brain data can be commercialised, or if they can be traded across borders.
- Fundamental Rights under Article 21[9]
The Supreme Court of India entrenched the right to privacy as a right under Article 21 (Puttaswamy v. Union of India, 2017)[10]. In principle, a right to privacy can be extended to mental privacy. However, there is no jurisprudence directly regulating BCIs or brain data.
Legislators and judges will face difficult choices. For instance, in the name of public safety, can the state justify access to brain information? How can individual rights be weighed against advances in medicine?
- Absence of Sectoral Regulation
As opposed to drugs or medical devices regulated by India’s Drugs and Cosmetics Act[11] And to the Central Drugs Standard Control Organisation (CDSCO), there is no specific regulatory route for BCIs.
This implies that there are no safety standards for neural implants.[12], no rules for clinical trials of neurotechnology, and no guidelines for neuroethics. Manufacturers can sidestep ethical protections altogether by taking advantage of default medical device regulations that do not foresee the specific issues of brain-computer interfaces.
- The Need for Anticipatory Regulation
India has historically lagged in regulating emerging technologies, resulting in policy formulation that often occurs through opaque and informal channels. A case in point is that data protection initiatives trailed the frenetic tempo of the digital economy.
For BCIs, there is a small window of opportunity to develop forward-looking regulation before products flood the market. By taking action now, India can prevent exporting regulatory models irrelevant to its social, economic, and cultural environments.
Existing initiatives, such as the National Digital Health Mission, target health data in general but leave behind brain data. Principles of AI ethics hardly discuss neurotechnology. India urgently needs to include BCIs in broader conversations about how technology should be governed.
PROPOSALS AND SOLUTIONS
India must actively frame policies and laws to counteract the challenges brought about by neural implants and BCIs and promote innovation safely and equitably.
- Enact Laws Recognising Neuro-Rights
India should legally codify cognitive freedom and mental privacy as neuro-rights. This can be done by modifying prevailing regimes of rights or special laws for neurotechnology.
Such laws should ban coercive or manipulative use of BCIs, define brain data as a uniquely sensitive category, and guarantee individual control over its use.[13]
- Strengthen Consent Frameworks
Informed consent practices shall be particularly stringent for brain data. This includes:
- Mandatory explicit consent for collection and use.
- Plain-language disclosures of risks, including potential for manipulation or surveillance.
- Ongoing, revocable consent for devices that continuously record brain data.
These norms need to be adopted with overt penalties for violation.[14]
- Learn from Global Models
India can learn the lessons from global precedents, including:
- Chile’s constitutional amendment provides a robust model of a rights-based approach.
- The EU AI Act’s risk-based approach to high-risk systems, which can be extended to BCIs.[15]
- OECD standards for responsible neurotechnology innovation, emphasising transparency, equity, and human rights.[16]
India can study these models and adapt their useful elements to build a framework that fits its own legal system and social realities.
- Encourage Public Debate
Lastly, India needs to conduct an open public debate on neurotechnology. Policies decided in the closet or by technocrats are bound to fail the democratic test.
Public education campaigns have the ability to increase public awareness of the peril and possible advantages of neurotechnology. Citizens can ensure that policies are sensitive to India’s pluralistic views and priorities.
CONCLUSION
Brain-machine interfaces are fast-moving from science fiction to a commercial reality; firms such as Neuralink and Synchron are already in human trials. India can ill afford to merely look on. Absent early regulation, it risks importing the technology along with the ethical problems.
Recognition of neuro-rights, such as cognitive liberty and mental privacy, should receive priority in Indian legal scholarship. By taking a proactive approach, India can design neurotechnology in support of its citizens, while protecting the most fundamental freedom of all: the free and independent human mind.
Author(s) Name: Abinesh M (Vinayaka Mission’s Law School)
References:
[1] Rafael Yuste et al, ‘Four Ethical Priorities for Neurotechnologies and AI’ (2017) 551 Nature 159.
[2] Marcello Ienca and Roberto Andorno, ‘Towards New Human Rights in the Age of Neuroscience and Neurotechnology’ (2017) 13 Life Sciences, Society and Policy 1.
[3] Constitution of Chile, Art 19(1), as amended by Law No 21.383 (2021) (Chile neuro-rights amendment).
[4] OECD, Neurotechnology: Policy Considerations to Maximise Benefits and Minimise Risks (OECD Publishing 2023) 14–17.
[5] Yuste (n 1) 160–162.
[6] Constitution of India 1950, art 20(3)
[7] Sarah Chan and John Harris, ‘Free Will and the Brain: Neuroscience, Freedom and Responsibility’ (2011) 31 Cambridge Quarterly of Healthcare Ethics 203.
[8] Personal Data Protection Act, 2023
[9] Constitution of India 1950, art 21
[10] K.S. Puttaswamy (Retd.) & Anr. v. Union of India & Ors. (2017) 10 SCC 1
[11] Drugs and Cosmetics Act 1940
[12] Central Drugs Standard Control Organisation, Medical Devices Rules 2017
[13] Marcello Ienca, ‘Common Human Rights Challenges Raised by Different Applications of Neurotechnologies in the Biomedical Field’ (Council of Europe, 2021) 18–22.
[14] OECD, Recommendation on Responsible Innovation in Neurotechnology (OECD Publishing 2023) 11–14.
[15] European Commission, Proposal for a Regulation Laying Down Harmonised Rules on Artificial Intelligence (AI Act) COM(2021) 206 final.
[16] OECD, Recommendation on Responsible Innovation in Neurotechnology (2023) < https://www.oecd.org/en/topics/science-technology-and-innovation.html > accessed 7 July 2025
