The Final Frontier of Privacy: Should Brain-Computer Interface Data Be Protected Under Indian Law?

Introduction

Neurotechnology and Brain-Computer Interfaces (BCIs) represent one of the most significant frontiers in science and law. These tools, which enable direct interaction between the human brain and external systems, have the potential to transform healthcare, communication, and human capability. By interpreting brain activity, BCIs can uncover signals linked to emotions, thoughts, and memories, opening new avenues for treating neurological illnesses and enhancing cognitive performance. At the same time, however, such technologies present unprecedented threats to personal autonomy, identity, and mental privacy.

In India, the legal recognition of privacy has progressed considerably. The Supreme Court’s judgment in K.S. Puttaswamy v. Union of India[1] elevated privacy to the status of a fundamental right, and the Digital Personal Data Protection Act, 2023[2], introduced statutory protections for handling personal data. Yet, these mechanisms are not designed to safeguard neural information, which is exceptionally sensitive and invasive in nature.

This paper argues that neuro-rights—emerging globally as protections for mental privacy, cognitive freedom, and psychological integrity—must be explicitly acknowledged in Indian law. The discussion first examines the gaps within India’s existing privacy framework in addressing BCI-generated data, then engages with the evolving global discourse on neuro-rights, and finally proposes legislative and judicial measures to secure this critical dimension of human dignity.

The Mismatch with India’s Privacy Framework

India’s privacy jurisprudence underwent a paradigm shift in 2017 with the Supreme Court’s ruling in K.S. Puttaswamy v. Union of India. The Court recognized privacy as a fundamental right under Article 21 and established a threefold test—legality, legitimate state purpose, and proportionality—to assess any infringement. Importantly, the judgment also broadened the scope of privacy to encompass informational privacy, thereby shielding personal data from arbitrary state action.

Yet, the decision did not anticipate the unique risks associated with neural data—information generated directly from brain activity capable of revealing thoughts, emotions, and memories with extraordinary precision. Unlike conventional personal data, neural data is deeply intimate, resistant to anonymization, and difficult to regulate through conventional safeguards.

The Digital Personal Data Protection Act, 2023, represents India’s first statutory privacy framework, introducing consent-based regulation and heightened safeguards for sensitive personal data. However, it fails to recognize neural data or BCI-derived information as a distinct category. This omission is critical: the Act’s consent framework presumes conscious participation, whereas neural signals may be extracted or exploited subconsciously, undermining the very premise of informed consent.

These limitations expose significant gaps in the law:

• No explicit safeguards against the involuntary collection or processing of neural data.
• Ambiguity surrounding ownership, commercialization, and economic use of brain-generated information.
• Absence of liability mechanisms for breaches or misuse that could permanently compromise individual autonomy.
• Unclear standards on the admissibility of neural data in courts, raising risks of self-incrimination and coerced disclosure.

Consequently, Indian privacy law currently subsumes neural data under general personal data, overlooking its distinctive sensitivity. This mismatch underscores the urgent need for a dedicated legal framework to protect emerging neuro-rights.

The Emergence of Neuro-Rights

Neuro-rights refer to a developing framework of human rights designed to shield the brain and mind from intrusive or manipulative neurotechnologies such as Brain–Computer Interfaces (BCIs). They extend privacy and autonomy protections to cognition and consciousness—the most fundamental elements of human identity.

The primary neuro-rights include:

• Right to Mental Privacy: Protects individuals from unauthorized access to neural data, treating thoughts and mental processes as the most intimate form of personal information. This goes beyond informational privacy by guarding the inner domain of consciousness from external intrusion.
• Right to Cognitive Liberty: Ensures individuals can freely choose whether to adopt neurotechnology or reject it, safeguarding freedom of thought, decision-making, and self-determination against coercion or manipulation.
• Right to Psychological Continuity: Preserves a person’s identity, personality, and memory from neurotechnological interference. With the prospect of neural editing and modulation, this right protects against involuntary changes that could disrupt one’s sense of self.

Globally, there is growing recognition of these principles. In 2021, Chile became the first country to constitutionally enshrine neuro-rights, prohibiting manipulation of brain data and misuse of neurotechnology.[3] The European Union, through its proposed AI regulations, is also considering designating neuro-data as “high-risk,” warranting stringent safeguards.

For India, which already has a strong constitutional foundation in privacy rights, the challenge lies in extending these protections to the neurological realm. This moment presents an opportunity for India to take a pioneering role in South Asia by embedding neuro-rights within its legal and policy framework.

Advocating for a Legal Path Forward for India

To safeguard the dignity and autonomy of Indian citizens in the neurotechnological age, three key measures are essential:

1. Legislative Action
   Parliament should either amend the Digital Personal Data Protection Act, 2023 or introduce a dedicated Neurotechnology Regulation Act to classify neural data as a distinct category of highly sensitive personal data. Such recognition must be coupled with stronger safeguards—enhanced informed consent, strict data minimization, robust security obligations, and clear prohibitions on unauthorized use of brain data.[4] A comprehensive legal regime would allow innovation to flourish while embedding ethical accountability.
2. Judicial Interpretation
   The judiciary, drawing from K.S. Puttaswamy v. Union of India, can extend Article 21’s guarantee of life and personal liberty to explicitly encompass neuro-rights as part of privacy and autonomy. A constitutional challenge to unauthorized processing of neural data could serve as a catalyst, prompting judicial recognition of neuro-rights and establishing binding precedents to guide legislative reform.
3. Interdisciplinary Collaboration
   Given the complexity of neurotechnology, sustained engagement between legal scholars, neuroscientists, ethicists, and technologists is vital. Policymaking must be informed by cross-disciplinary expertise to remain adaptive and future-ready. Public education and awareness campaigns will further empower citizens to understand, claim, and protect their neuro-rights.

Conclusion

The rapid progress of brain-computer interfaces offers transformative possibilities, yet it also poses unprecedented legal and ethical challenges, striking at the very core of human identity—thoughts and consciousness. India’s current privacy protections, designed for conventional data, are insufficient to safeguard the unique sensitivity of neural information.

A comprehensive legal framework that explicitly recognizes neuro-rights is essential to protect dignity, autonomy, and mental integrity in the face of advancing neurotechnologies. Postponing such safeguards risks unregulated exploitation and the erosion of the last frontier of privacy. India must decide whether to remain reactive to crises or to assume global leadership by establishing a neuro-rights regime that preserves the sanctity of the human mind in the era of mind-machine convergence.

By proactively integrating neuro-rights into its constitutional and legislative landscape, India can not only protect its citizens but also set a model for emerging democracies. Such leadership would align with India’s constitutional commitment to human dignity and reinforce its role as a global voice for ethical governance in the digital age.

[1] K.S. Puttaswamy v Union of India (2017) 10 SCC 1 (SC) (recognizing the right to privacy as a fundamental right under Article 21).

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

[3] Government of Chile, Constitutional Amendment Recognizing Neuro-rights (2021).

[4] Emily Fawn, The Role of Neurotechnology and Brain Data Privacy in Modern Ethics, FEDERAL HEALTH GROUP (Mar. 9, 2025), hhttps://federalhealthgroup.com/posts/the-role-of-neurotechnology-and-brain-data-privacy-in-modern-ethics/.