Abstract

The future of human-machine interaction is quickly shifting towards a more intimate and direct relationship between humans and machines, with the aid of technology like Brain-Computer Interfaces (BCIs). Although these advancements in medicine, communication and accessibility may seem like great opportunities, they are also risking mental privacy, cognitive freedom and human autonomy. Existing legal frameworks remain incapable of even addressing the collection and misuse of neural data. This blog proposes that mental privacy should be constitutionally protected, and proposes legislating for advance regulation, based on the concept of neurights, to protect the individual from cognitive surveillance, manipulation and commercialization.

Imagine a near-future where your employer can monitor not only what you actually say, but your very thoughts keeping track of your performance levels, stress, and even the way you think on a second-to-second basis. This may sound implausible, but it is not far from reality as neurotechnology advances rapidly. Although these technologies have revolutionized medicine, learning, and interaction between humans and machines, they also pose a novel threat to human autonomy and dignity. If not regulated, neurotechnology would be potent enough to compromise what can be called humanity’s final frontier of privacy—the human mind.

Neurotechnology mainly involves the creation of devices and systems capable of communicating directly with the brain or nervous system, such as Brain Computer Interfaces (BCIs). These devices are able to record, process, and even manipulate neural activity, ushering in new forms of communication and control. However, as these technologies are increasingly being used to improve the prospects of ‘reading’ brains in order to obtain information, they also leave space for unauthorized surveillance and manipulation.

Thus, the current inadequacy of data privacy frameworks highlights the immediate need to recognize mental privacy and neurorights as distinct human rights.

Mental Privacy and Neurorights

The construct of ‘mental privacy’ refers to an individual’s ability to determine when, how, and to what extent information about their thoughts is to be communicated to others. It is wholly based on the idea that one should have control over the access to their neural data, and to the information about their mental processes and mental states that can be obtained by analyzing such data.

The term ‘neurorights’ was first coined by Ienca and Andorno in 2017, as they argued that the existing human rights laws were inadequate to adequately address new ethical and legal issues posed by neurotechnology. Moreover, in their paper, they identified the four key neurorights, which are: mental privacy, cognitive liberty, psychological continuity, and mental integrity.

The Global Regulatory Vacuum

Even the EU’s GDPR, which is supposed to be the most comprehensive data protection law in the world, falls short as far as neural data protection is concerned. Even though neural data might be classified as ‘sensitive data,’ the GDPR is still silent on the monitoring and manipulation of brain activity.

At the international level, the UDHR and ICCPR protect privacy, freedom of thought, and bodily integrity. However, these instruments were drafted way before the advent of neurotechnology; hence, these rights need reinterpretation according to contemporary standards to ensure protection.

Most notably, in 2021, Chile amended Article 19 of its Constitution to recognize neurorights, and it became the first nation to constitutionally protect mental privacy. Positively, even international institutions have started to respond. For example, in 2019, the OECD made recommendations on how neurotechnology should be ethically governed.

Taking this further, UNESCO adopted the Recommendation on the Ethics of Neurotechnology at its 43rd General Conference in Samarkand in November 2025, a landmark global framework that calls on Member States to protect mental privacy, ensure free and informed consent before any neural data is collected, and prohibit the use of neurotechnology for surveillance, social control, or manipulation. Notably, the framework also extends its protections beyond implanted devices to include wearables and AI tools that can infer mental states indirectly, filling a critical gap that most national laws have yet to address.

It is quite evident that neurorights and mental privacy are starting to get recognized in countries and international organizations; however, the Indian legal system has yet to develop provisions on the same.

Where Does India Stand?

The Digital Personal Data Protection (DPDP) Act of 2023 is an important advancement for India in the domain of data privacy. However, it does not make any direct mention of neural or cognitive data. Moreover, Section 2(t) of the Act defines ‘personal data’ as information that identifies an individual. This definition, however, fails to capture the complexity of brain-derived data, which may not reveal a person’s identity but can still be highly personal.

Building on this, the Indian jurisprudence has a constitutional foundation for recognizing mental privacy. In Justice K. S. Puttaswamy v Union of India (2017), it was stated that the right to privacy in Article 21 does incorporate both bodily and mental autonomy. Furthermore, in Kaushal Kishore v. State of Uttar Pradesh (2023), the Court ruled that the fundamental rights provided by Articles 19 and 21 might be enforced even in relation to non-state actors. This suggests that neurotechnology companies could be held accountable if mental privacy were to be recognized in India.

However, a legal system that controls the collection, exploitation, or commercialization of neural data is absent in India currently. Without clear rules, neurotechnology companies may take advantage of this gap and use brain information collection and processes in the name of innovation. Unlike Chile’s constitutional neurorights, India’s framework leaves neural data vulnerable, which increases risks.

Emerging Challenges

The current trends in neurotechnology are proof of its potential and threat at the same time. For example, a 2021 experiment by Neuralink allowed a monkey to play a video game using only a brain-implanted chip, whereas a breakthrough by Synchron enabled paralyzed people to post on social media by merely thinking.

Even though these breakthroughs show the possibilities of BCIs, they also raise serious ethical concerns. Research indicates that BCIs have the potential to retrieve sensitive data about memories, feelings, and even political views of an individual, which can lead to unprecedented types of surveillance or behavioral control.

Already, there is an unregulated use of mental health apps and AI-based monitoring devices at workplaces to monitor productivity. The threat of unauthorized cognitive surveillance is even more terrifying in India, where, in most cases, the ecosystems of data may be intertwined with the systems linked to Aadhaar.

Existing legal tools do not take into consideration the cases where brain data can be taken non-invasively, such as the use of wearable electronics to record the brainwaves or the eye movement patterns. This makes it possible to extract thoughts or emotions without physical contact, and      creates a new form of vulnerability that traditional privacy frameworks were never designed to combat.

A Way Forward

The risks of delaying regulation until after neurotechnology becomes fully developed are significant. Thus, the ‘Precautionary Principle’ should be implemented, which provides that in situations of scientific uncertainty, where a technology may pose a risk, action should be taken to prevent harm even if there is not yet conclusive evidence of that harm.

In light of this precautionary approach, India must take proactive measures to include safeguards within its constitutional framework. Article 21 should be interpreted in such a way that it explicitly covers mental privacy and cognitive liberty that can safeguard thoughts, beliefs, and inner thinking processes as part of human dignity.

Simultaneously, the Parliament should enact a Neurotechnology Regulation Act, based on Chile’s neurorights model, to define neural data, govern its application, and ban unauthorized manipulation or commercialization of brain activity. The creation of a National Commission on Neuroethics, that would establish the ethical standards of neuro-research and commercial use, and would provide guidelines to universities, corporations, and startups, should also be considered. 

Conclusion

Data privacy was once about protecting our emails and bank details. Today, it is about protecting something far more fundamental, which is our thinking mechanism. As neurotechnology has found its way into hospitals, classrooms, and everyday gadgets, the stakes have never been higher. India cannot afford to wait for a crisis before any action is taken. Recognizing mental privacy as a constitutional right is not concerned with slowing down innovation; it is about making sure that innovation does not come at the cost of our mental autonomy.

The real question is whether, when a machine can read your mind, you will still own it. India has a choice: either to lead on mental privacy, or wait until the law is forced to catch up with a reality it never saw coming. History suggests we cannot afford the latter.