Neurorights and the Indian Constitution: Is Article 21 Enough to Protect The Mind?

Abstract

This paper examines whether Article 21 of the Indian Constitution provides sufficient protection against the emerging challenges posed by neurotechnology and the collection of neural data. Advances in brain-computer interfaces, EEG devices, and consumer neurotechnology have enabled the extraction, storage, and commercialization of information derived directly from brain activity, raising unprecedented concerns regarding privacy, autonomy, and mental integrity. While the Supreme Court's decisions in Justice K.S. Puttaswamy v. Union of India and Selvi v. State of Karnataka have expanded constitutional protections for privacy, bodily integrity, and protection against self-incrimination, these doctrines were developed before the widespread adoption of neurotechnology and do not specifically address neural data governance. The paper argues that the Digital Personal Data Protection Act, 2023, fails to recognize neural data as a distinct category of sensitive information, creating a significant regulatory gap. By analyzing international developments, including Chile's constitutional recognition of neurorights and emerging protections in North America and Europe, the paper highlights the growing global consensus on safeguarding mental privacy and cognitive liberty. It concludes that although Article 21 provides an important constitutional foundation, effective protection of the human mind requires dedicated neurorights legislation that specifically regulates the collection, use, retention, and transfer of neural data in India.