Mind the Gap: Advocating for an Indian Legislative Response to Neurotechnology

Abstract: Neurotechnology is a rapidly evolving field that brings with it a range of benefits, especially in the healthcare sector. However, growing developments in this area pose significant risks to individual privacy, particularly in relation to the use of neurotechnology such as Brain-Computer Interfaces. This article argues that the recognition of neuro-rights embodied in the right to mental privacy can help address some of these challenges. While such recognition can be drawn from the Indian jurisprudential framework, it only provides the first step in what is a long journey for the protection of individuals from the unique problems that neurotechnology presents. In its present state, the Indian framework falls short of providing any tangible protection and a more concrete response can only be achieved through a comprehensive legislation that provides guidelines for the production and use of neurotechnology. Drawing on examples from other jurisdictions such as Chile, this article advocates for India to take proactive steps in developing and implementing such legislation in line with the precautionary principle. In doing so, the article also highlights the missteps that the Chilean Legislature has made in order to ensure that the proposed Indian legislation is drafted with complete awareness of such pitfalls. A legislation of this nature would help ensure that individuals’ mental privacy and autonomy are protected and would help build a foundation for the responsible use of neurotechnology in the future. Acknowledging that a holistic legal mechanism of the proposed nature is not an overnight process, the authors also recommend interim protections that can be put in place in order to ensure that individuals’ neuro-rights are not compromised in the meantime.