By Jaiverdhan Singh and Yashvardan Singh Shekhawat. The authors are 3rd and 4th-year students of Maharashtra National Law University, Nagpur, respectively.
Introduction
The dead can’t speak for themselves. So, it is incumbent upon us to speak for them
Recently, the Division Bench of the Karnataka High Court while ruling on an appeal filed by the accused convicted of offences punishable under Section 302 and 376 of the Indian Penal Code, 1860 (IPC), held that “rape on the dead body of woman will not attract the offence punishable under the provisions of Section 376 of IPC.” The above-quoted ruling of the Karnataka High Court has brought the spotlight back on the menace of Necrophilia, that had caught the world’s eye when large number of dead bodies were left unattended amid the dastardly waves of Covid-19. The menace of Necrophilia, however, has plagued the human society for a prolonged time. But it is perplexing to note that an act that is considered reprehensible by society, has received very little global attention and what is more appalling is that in many countries, around the globe, there are no specific laws outlawing it.
This piece endeavours to highlight the lacunas in the legislations in force in India to penalise the horrendous act of Necrophilia and posit that despite having robust judicial precedents protecting the rights of dead person, the act of Necrophilia goes unabated due to the legislative inertia. Further, the authors aim to turn the eye of the legislators on the growing need for the introduction of Necrophilia as a separate offence in the statute books or to amend the existing laws to protect the rights of the deceased.
Defining Necrophilia
The word ‘Necrophilia’ is derived from the Greek words ‘nekros’ meaning corpse and ‘philia’ meaning love, wherein the perpetrator gets sexual pleasure by indulging in sexual activity with the dead corpse. The Criminal Code of Georgia defines Necrophilia as “A person commits the act of necrophilia when he performs any sexual act with a dead human body involving the sex organs of one and the mouth, anus, penis, or vagina of the other”.
The Lacunas in IPC
The laws in India on sexual intercourse with a dead body are somewhat murky. The IPC contains several provisions concerning the protection of dead bodies in general, but it is unclear whether these provisions provide dead bodies protection from sexual assaults.
Section 297 of the IPC penalises “indignity to any human corpse”. However, the provision is incomplete and there are a lot of lacunas of which the accused can take recourse and escape from the clutches of law. Firstly, Section 297 penalises the act of “indignity to any human corpse” done with the intention of “wounding the feelings of any person, or of insulting the religion of any person”. The issue herein is that when an accused commits the gruesome act of sexual intercourse with a cadaver, it is not always the case that the act was committed to insult the religious feelings of the person. Fitting necrophilia into the ambit of Section 297 would on the other hand amount to giving religious overtones to such horrendous sexual acts. Secondly, the ambit of Section 297 is limited to the acts committed on “any place of worship or any place set apart for the performance of funeral rites”. This virtually excludes mortuary, hospital wards and other sites at which the act of necrophilia is mostly performed from its ambit. It has also been observed that the act of necrophilia is committed by mortuary attendants and guards, who have unfettered access to dead bodies considering the dilapidating condition of Indian mortuaries and the non-installation of CCTV cameras there. Also, the maximum punishment under the aforementioned section is one year. Considering the gravity of the offence and the consequent repercussions it has on grieving family members, the punishment prescribed is inadequate to create a deterrence.
The other provision is Section 377, which penalises ‘voluntary’ sexual intercourse “against the order of nature with any man, women and animal.” This provision also has certain lacunas. Firstly, there is no definition of the expression “against the order of nature” in Section 377 or in any other section of the IPC. However, applying the Victorian Principle, any sexual act that does not lead to procreation falls under ‘against the order of nature or unnatural’. However, the use of the word voluntary in Section 377 appears to be problematic as in case of sexual intercourse with a cadaver, the victim being dead therefore there is no scope of consent being there.
Further, in the absence of any specific statute proscribing necrophilia, the accused person(s) is charged with the offence of rape under Section 376 of the IPC. Section 375 of the IPC, which defines the offence of rape, is a gendered offence. The first line of the section reads as ‘A man is said to commit “rape” with a woman if he has forceful sexual intercourse under six circumstances enumerated under the section. The wording of the section restricts the scope of this section where the act is committed on male dead bodies. Also, under Section 10 of the IPC, a man is defined as “a male human being of any age” and a woman is defined as “a female human being of any age.” There is no reference of a dead person anywhere in the IPC or in any other legislation now in force in India.
The Global Position
World over, in many countries there are no laws penalising the horrendous act of necrophilia. The inability or lethargy on the part of the legislators to frame laws has led to continued commission of the offence unabated. However, many countries like the United Kingdom, South Africa have robust anti-necrophilia laws. Section 70 of the United Kingdom’s Sexual Offences Act, 2003, makes “sexual penetration of a corpse” an offence punishable with six months to two years imprisonment. In New Zealand, the Crime Act 1961 directly does not deal with the offence of necrophilia but under Section 150 of the Act, a person is liable to imprisonment for a term not exceeding two years for “Misconduct in respect of human remains.” In South Africa, section 14 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 titled ‘sexual act with corpse’ penalises the offence of Necrophilia. The United States on the other hand has no federal law criminalising necrophilia but only a handful of states including Arizona and Georgia have explicit laws criminalising necrophilia.
Indian Legal Jurisprudence on Rights of Deceased persons
Presently, the law relating to the dignity of the dead exists, but its contours have not been defined. The Indian constitution, however, contains a catena of rights protecting the dignity of the dead under Article 21 of the constitution of India.
The Supreme Court of India in the case of Parmanand Katara v. Union of India, held that “right to dignity and fair treatment under Article 21 of the Constitution of India is not only available to a living man but also to his body after his death”.
In the case of Ashray Adhikar Abhiyan v. Union of India, the Supreme Court delivered a momentous verdict pertaining to the cremation of deceased homeless individuals. The Court reaffirmed the importance of treating the departed with utmost respect and acknowledged the fundamental right of homeless individuals to have their funeral rites performed in accordance with their religious beliefs.
The Allahabad high court in the case of Ramji Singh Mujeeb bhai v. State of U.P & Ors., while dealing with a petition highlighting, inter alia, the dilapidated state of mortuary in Allahabad, imposed obligation on the state to accord dignity and respect to dead bodies and ensure that the dead bodies should never be used for any ocular purpose and for that, the court gave an extended meaning to the expression ‘person’ in Article 21 so as to include dead bodies.
In the case of Amrutha v. The Commissioner, the Madras High Court delved deep into the intricate realm of safeguarding the privacy of departed souls. Drawing inspiration from the puranic literature, the court shed light on the enduring essence of privacy, transcending mortal existence, even in the realm of death. The court emphasized that it’s crucial not to invade the privacy of the deceased and to respect their right to privacy even after they have passed away.
Suggestive Remarks
The rights of the deceased have long been overlooked despite having a catena of solid judicial precedents supporting them. The judgment of the Karnataka High Court should serve as a catalyst for the legislature to either fix the lacunas in the existing laws or introduce a new provision in the statute books upholding the dignity of the deceased person,
A draft provision penalising the act of Necrophilia by adding a clause to Section 377 of the Indian Penal Code has been suggested below by the authors.
Section 377A. Offense of Necrophilia. “Whoever engages in sexual penetration of a deceased person’s body, using one’s penis, or any other body part, or any object, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”. This amendment would effectively establish necrophilia as a distinct criminal offense in the IPC, ensuring that such horrendous acts are explicitly recognized and punishable under the law. Furthermore, penalizing necrophilia aligns with the global consensus on human rights and the universal belief in the sanctity of the human body, even after death. It will also demonstrate India’s commitment to international standards of human decency and serve as a reflection of its progressive and compassionate approach toward protecting the rights and dignity of its citizens.