With advancements in neuroscience and brainwave technology, the legal landscape is facing a new challenge: Can thoughts and brain activity be used as evidence in Indian courts? While polygraph tests and narco-analysis have been controversial, brainwave mapping technology such as Brain Electrical Oscillations Signature (BEOS) profiling has already been used in India. This raises critical questions about privacy, consent, and admissibility under Indian law.
Brainwave-based evidence involves analyzing electrical signals in a person’s brain to detect memory recall, intention, or truthfulness. Technologies like EEG (electroencephalography) and BEOS claim to identify whether a person has prior knowledge of an event or crime.
In 2008, India made global headlines when a Pune court convicted a woman based on BEOS profiling. The case sparked ethical and legal debates about whether such evidence violates fundamental rights. Over the period of time, it has gained legal acceptance in India, though its should be corroborated with other evidences as well.
In and around 2023, the SC recognised that psychological tools such as polygraph and brain mapping are a material piece of evidence but cautioned that these tools alone are insufficient to determine guilt in a case.
Article 20(3) of the Indian Constitution states that no person accused of an offense shall be compelled to be a witness against themselves. Brainwave-based evidence, if obtained without consent, could be seen as forcing individuals to reveal their thoughts involuntarily.
In Selvi v. State of Karnataka (2010), the Supreme Court ruled that narco-analysis, polygraphs, and BEOS tests conducted without consent violate fundamental rights. This judgment makes it difficult to admit brainwave-based evidence unless taken with voluntary consent.
Brain scanning technology can reveal deeply personal thoughts, memories, and emotions. This raises concerns under Article 21 (Right to Privacy), reinforced by the Puttaswamy v. Union of India (2017) judgment. Using brainwave-based evidence without strong safeguards could violate an individual’s mental privacy.
Globally, brainwave-based evidence has been met with skepticism. In the US and UK, courts have largely rejected such evidence due to concerns over accuracy and self-incrimination. The European Court of Human Rights has emphasized the need for consent before using such invasive technology.
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