Protecting the Last Private Frontier: Neurorights, Brain-Data Privacy and The Indian Legal Landscape-Lessons from Chile

Abstract

The rapid development of neurotechnology, artificial intelligence (AI), brain-computer interfaces (BCIs), electroencephalography (EEG), neuroimaging and other brain-sensing technologies is creating new possibilities for understanding and interacting with the human brain. These technologies offer significant benefits in healthcare, neurological rehabilitation, assistive communication, scientific research and human-computer interaction. At the same time, they generate highly sensitive forms of information commonly referred to as neurodata or brain data. Unlike conventional personal information, neurodata may reveal, or potentially permit the inference of, aspects of a person's cognitive condition, emotional responses, attention, preferences, neurological characteristics and behavioural patterns. This raises important questions concerning privacy, autonomy, dignity, freedom of thought and mental integrity. The emerging concept of "neurorights" seeks to address these concerns by developing legal and ethical safeguards for the human mind. Chile represents an important comparative example because its Law No. 21.383 of 2021 amended Article 19(1) of the Chilean Constitution to require that scientific and technological development serve persons and respect physical and psychological integrity, with particular protection for brain activity and information derived from it. The subsequent decision of the Chilean Supreme Court concerning the Emotiv Insight EEG device further demonstrated the practical legal significance of brain-data protection. India does not presently have a dedicated comprehensive neurorights statute. Nevertheless, the constitutional jurisprudence concerning privacy, dignity, autonomy and mental integrity provides an important foundation. In particular, Justice K.S. Puttaswamy (Retd.) v. Union of India recognized privacy as a constitutionally protected right and emphasized the relationship between privacy, autonomy, dignity and the sanctity of the mind. Similarly, Selvi v. State of Karnataka addressed the constitutional implications of techniques such as narco-analysis, polygraph examination and Brain Electrical Activation Profile testing, thereby providing an important foundation for discussions concerning mental privacy and compelled access to information associated with the mind. This paper examines whether India's existing constitutional and data-protection framework is sufficient to address the distinctive risks associated with neurodata. It compares the Chilean approach with India's constitutional privacy jurisprudence and the Digital Personal Data Protection Act, 2023 and Rules, 2025. The paper argues that neurodata warrants enhanced protection because of its potential to expose information that an individual may never have consciously communicated. It proposes a technology-neutral Indian neurorights framework based on mental privacy, cognitive liberty, meaningful consent, purpose limitation, data minimisation, security, non-discrimination and independent oversight.