Finding little to no recognition in most countries, the bizarre act of Necrophilia means the sexual desire and attraction towards a corpse. A deplorable act in which the perpetrator gets sexual pleasure in having sex with a corpse. With lamentable lust being the absolute motive, Necrophilia is often found to be done by rejected lovers. India has been witnessing a surge in cases of sexual assaults on corpses for so long, yet it still lacks specific laws to prevent such acts. Therefore, to understand the dire need for the formulation of a specific law, this article aims to analyze the growing conundrum of Necrophilia in India and while introspecting if the act Necrophilia could fall under the ambit of Section 377 of the Indian Penal Code, 1860.
Lacuna in the Indian Penal Code, 1860
The Indian Penal Code, 1860, has an absence for such a heinous and morally upsetting crime. Analyzing the penal code to find the dignity provided to the corpse, Section 297 makes a vague attempt to provide punishment for trespass on burial places and for bringing indignity to the human corpse. The above section does not stipulate that corpses also have the right to dignity and the right against sexual misconduct. This section disappoints most cases where Necrophilia is not committed by trespassing into a burial place but in other places where Necrophilia can be committed, as in the case of Nithari serial killings in which the perpetrator murdered 19 girls and had sexual intercourse with their corpses in a Bungalow. The repercussions of such an act, firstly, are, the perpetrator will not be punished as he had not committed the act of trespass. Secondly, if somehow the same is proved, then the punishment is so meager that it is up to one year, which cannot contribute to crime prevention in a case where the perpetrator was arrested for digging up the grave and having sexual intercourse with the corpse. These cases have attracted the charge of murder, but the commission of rape has gone unnoticed and unpunished. This section’s primary purpose is to prohibit ‘trespass on burial places, protect the religious sentiments’ (as in Chapter XV), i.e., Offences Relating to Religion, to ensure a dignified and uninterrupted burial, and not to protect the corpse from sexual attacks.
On the other hand, Section 377 states that whoever voluntarily has carnal intercourse against the order of nature with any man or women or animal 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. The first element of this section is ‘voluntarily’ which means the intercourse must be voluntary. In cases of Necrophilia, it not possible to determine whether the action was voluntary or voluntary. If it can be determined that Necrophilia is voluntary or involuntary, can the act not be prosecuted as rape if sexual intercourse was not voluntary? The answer to which is crucial whether or not the sexual intercourse was voluntary or involuntary, depending on the question of whether a corpse could give consent or not. The second element of this section is ‘unnatural,’ which means any intercourse that does not result in procreation or is uncommon must be punished. Therefore, Necrophilia is prima facie against the order of nature as it does not result in procreation. The third element, ‘man or woman is defined in Section 10 as a person (male or female) of any age. Corpses, although they may not be living but remains ‘human’ even if they are dead, so section 377 can be the last resort if the final condition is also met.
Legal Status of a Dead Body
As far as the legal status of a dead body in India is concerned, it is present in the Criminal Justice System of India in a vague manner. Although, the judicial procurements have instigated the right to dignity of a dead body, a right protected under Article 21 of the Constitution, the legal status per se of a dead body remains absent. With their death, they lay down their legal entity and, as such, are destitute of legal rights and duties. The UN Commission on Human Rights, in a Resolution adopted in 2005, emphasized the importance of dignified handling of dead bodies, including their proper management and disposal as well as respect for the needs of families. The State is bound to enact such Domestic Law consistent with the International Obligations. Necrophilia, in this sense, becomes an act of vandalism, not a sexual attack against a person.
Dignity of Lost Souls under the Constitution of India
The ambit of Article 21 of the Indian Constitution guarantees the protection of the right to life and liberty to every person. The Supreme Court of India in Paramanand Kataria, Advocate v. Union of India & Another(1995), implicated that the protection of the right to life and dignity is not only confined to the living persons but also extends to the dead person. Again in Ramji Singh Mujeeb Bhai v. State of U.P and Ors. (2009), Supreme Court held that the word “Person” in Article 21 ensures a person’s right to live with dignity also extends to his dead body, which should be treated with respect which he would have deserved, had he been alive.
Recently, Justice Prafulla Chandra Pant, Acting Chairperson of National Human Rights Commission (NHRC), recommended for the enactment of legislation to protect the dignity of a dead body and observed that the protection the rights of the dead bodies from its recognition that the right to life, fair treatment, and dignity, derived from Article 21 of the Indian Constitution extends not only to the living persons but also to their dead bodies. Either in case of natural or unnatural deaths, the State must protect the rights of the deceased and prevent crime over the dead body. However, the Indian Criminal Laws have turned a blind eye towards the dignity of a dead body in the cases of Necrophilia. Despite the judicial pronouncements and guidelines issued by the authorities, the State has failed to enact a specific law under the Indian Penal Code consistent with the Constitution of India to prevent the violations of the right to dignity of a person.
Laws Around the Globe
Since India follows a common law system, let us first start with the United Kingdom, Section 70of the Sexual Offences Act, 2003 of the UK makes it an offence for a person who intentionally sexually penetrates, knowingly or recklessly, any part of his body into any part of a dead person. In the United States, Necrophilia is being treated as a felony and in others as a misdemeanor. In Canada, Section 182 of the Criminal Code of Canada, 1985 makes Necrophilia punishable. In New Zealand, Section 150 of the Crimes Act, 1961, serves imprisonment for two years to any person doing any act on the corpse, whether buried or unburied, to harm its dignity. In South Africa, Section 14 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 prohibits Necrophilia. More or less, countries have strived to protect their citizens against this crime.
Indian laws are weaker and ambiguous. A significant lag is found to be the legal status of a dead body. After recognizing the ambit of Article 21, which provides protection to the right to dignity to a person, the word human corpse should fall within the ambit of the word ‘person’ under the IPC. Being a heinous crime in itself and involving non-natural circumstances, it should also be seen in the light of unnatural offences mentioned in Section 377 of the IPC. Hence, a dire need for legislation to penalize such an appalling crime of Necrophilia violating a dead body’s dignity arises and should be met urgently.
About the Authors, Mohd Ayan & Shabih Fatima [2019-24] are pursuing B.A.LL.B (Hons) from the Faculty of Law, Jamia Millia Islamia, New Delhi