Authored By: Tamanna Ashra
Renaissance law college
INTRODUCTION
Necrophilia is derived from the Greek word for “corpse” and “love. It refers to sexual arousal towards/engaging in sexual activity with dead bodies. Criminally and legally, it is considered as a serious violation of social rules and 100% disrespect towards the dead. Necrophilia is frequently associated with high levels of personality disorder and problems with relating to living people by psychologists. Although most agree that it is wrong, the Indian Penal Code of 1860 does not explicitly state if necrophilia is a crime or not. This is a way this sinful act is allowed to fly under the radar. The following paper will suggest that India is in dire need of specific legislation against necrophilia. Currently, the act is not regulated by existing laws. In addition, there are more cases in the news and outraging the public. Most importantly, a person’s dignity is afforded during their life, and that dignity should be extended to after death as well.
A MULTI-FACETED ANALYSIS
- The Legal Lacuna in Indian Law
In India, the biggest hurdle in the prosecution of the offence of necrophilia is the lack of a dedicated offence. Courts and prosecutors have tried to place this act into the current, but poorly designed, IPC. An analysis of these sections is revealing their great inadequacy.
Penalties for section 297 of IPC: Section 297 of IPC is penalizing “trespassing on burial places etc.” with imprisonment for up to 1 year. It deals with conduct that is “indignity to any human corpse” or “any annoyance” to the people who have “assembled for the purpose of performing funeral ceremonies. The section does not adequately cover the topic of necrophilia, although sex with the dead is certainly an indignity. It’s about trespass, and the annoyance to the living, not the inherent sexual violation of the dead body itself. One year is a very disproportionate punishment for the offense of necrophilia.
Historically, IPC might have been a potential, but problematic, tool, but it was Section 377 which criminalised “unnatural offences.” Since the Supreme Court’s decision on Navtej Singh Johar v Union of India, which decriminalised consensual sexual intercourse between adults, the enforcement of Section 377 has come under a definite cloud. In addition, carnal knowledge is the “carnal knowledge against the order of nature with any man, woman, or animal. A corpse can’t be a person and so the section cannot be applied logically. It is also not a matter of consent in any sense and therefore the whole structure of Section 377 is irrelevant.
The Chhattisgarh High Court in the recent case of xyz (Mother of The Deceased) v. State of Chhattisgarh (2024 SCC Online Chh 4849) brought this lacuna in the law to the fore. In this instance, the accused was let off the hook of rape charge under Section 376 of IPC, on the basis that the victim was dead at the time of sexual assault. A dead body was not a “person” and the crime of rape, defined by the act being committed against the will of a woman or without her consent, could not be proved, the court said. The court aptly pointed out the lacuna and said, “this Court is not in a position to convict the accused for the crime of rape, however, this Court notes that the time has come for the Parliament to intervene with an independent provision for the crime of necrophilia”.
Post-mortem dignity has been a part of the judiciary’s tradition for a long time. In Parmanand Katara’s case (1995) 3 SCC 248, the Supreme Court ruled that the right to dignity and fair treatment under Article 21 of the Constitution extends to the body of the deceased as well. This was also repeated in Ashray Adhikar Abhiyan v Union of India (2002) 2 SCC 27 in which the court had directed for dignified treatment of the deceased beggars. This is a direct violation of this constitutionally guaranteed dignity after death, due to the failure to criminalize necrophilia.
- Manifestation of Necrophilia:
Due to lack of a specific category in the crime code, and underreporting, statistics concerning necrophilia are limited, but this cruel form of sexual activity has recently captured the public and judicial attention.One of the most gruesome cases in India was the infamous serial killings by Nithari (Surendra Koli v. State of Uttar Pradesh, 2023 SCC OnLine All 2038) and necrophilia was a major element in the case.All of these incidents highlight that necrophilia is a problem that exists and is not some abstract or theoretical concern.
There are generally two types of necrophilia that are distinguished by criminologists.
- Opportunist Necrophilia: When someone has sex with a corpse when they can, usually without a plan.The person could be someone who works in a morgue, a funeral service or someone who stumbles on a body.
- Familiar with the term, Necrophilia Homicide: is a more sinister form, in which someone kills a person with the purpose of sexually performing with the body after its death.The Nithari case is a gruesome instance of this type.In such instances it is hard to prove the motive without a specific law, which might result in a lesser charge being levelled if the killing itself may not be deemed as being proven beyond reasonable doubt.
Cases are becoming more commonplace and with a more alert media, there is an urgent need for a legal instrument to deter and hold perpetrators of such acts accountable in line with the nature of the act.
- The Argument for Criminalization:
The arguments for criminalization of necrophilia are threefold: the dignity of the corpse, the morality of the public and international law.
The law protects the body and reputation of the dead, although a dead person has no legal personality, and cannot have rights, as P.J. Fitzgerald says in Salmond on Jurisprudence (12th ed.).The protection is not for the benefit of the dead, but of the living – of the feelings of the family and community.The law provides for a decent burial and prevents the corpse being insulted or treated with disgrace in order to maintain the moral and ethical standards of society.Necrophilia should be criminalized as an extension of this.It recognizes that any act that insults or pollutes a human body is a violation of the collective conscience of humanity and of the memory of the one who was.
Comparative Legal Analysis: India has not criminalised necrophilia and has been behind many other jurisdictions which have done so. The need for specific legislation can be seen from a short comparative survey, which shows there is a consensus throughout the world:
- In the United Kingdom, Section 70 of the Sexual Offences Act 2003 makes it an offence to have sexual penetration of a corpse, with a maximum penalty of two years’ imprisonment.
- Canada: Section 182 of the Criminal Code penalizes those who “intentionally or recklessly” use a dead human body or human remains in an “indignity” or “improper” manner, with up to five years imprisonment.
- In Germany, sexual acts with corpses are punishable by the “desecration of the dead” (Strafgesetzbuch – StGB, §168).
- The United States has no Federal law, but a number of States have State laws.Under, e.g., California’s Health & Safety Code, Section 7052, it is a felony to engage in any action that “outrages the decency of the community, or is injurious to the public health, or to the public morals.Has been prosecuted for necrophilia.
As can be seen from these examples, the lacuna in Indian law has been noticed and filled by mature legal systems. They offer a transparent set of guidelines for India to follow.
The need of a formal examination by the Law Commission of India: As observed by the judiciary and seen in the society the need of a formal examination is required by the Law Commission of India. The Commission is most suited to provide a full review, input from stakeholders and a report with proposed changes to legislation. A formal recommendation from the Law Commission would give the impetus that would accelerate Parliament’s action.
Conclusion and Recommendations
The Indian Penal Code has a distinct lacuna in its provisions to criminalize necrophilia. The current legal framework has been drafted for a different time and for entirely different crimes and is entirely unsuitable for the special depravity of sexual acts against a human corpse. This absence of punishment for horrifying acts does not only result in the unpunished commission of such acts, but also contravenes the concept of ‘post mortem dignity’ which has been recognized by judiciary as an extension of Article 21. The fact that other major jurisdictions clearly have legislative precedents for such crimes and that they are becoming more common indicates the urgency of the situation.
Hence, it is strongly recommended that the Parliament of India make a specific law to make necrophilia a crime. A new provision, either as an amendment to the Indian Penal Code or as a part of the new Bhartiya Nyaya Sanhita, should contain the following key elements:
Explicit Definition: Necrophilia, as defined by the law, should encompass any sexual contact with a body (including penetration of any kind) with a corpse.
Severe Punishment: The severity of the punishment should be commensurate with the seriousness of the offence and should be more than the existing Section 297 punishment of one year. This is a serious offence for which an adequate prison sentence should be imposed.
Broad Scope: The provision should have been drafted so that all forms of the offences would be included so that no perpetrator could ever be let off on technicalities, whether it be Opportunist Necrophilia or Necrophilia Homicide.
The Statement of objects and reasons for the new law should make it clear that it is intended to respect the dignity of the deceased after his death; the new law needs to be firmly grounded in the constitution.
With such a law India will not only fill a dangerous legal loophole, but will also make a strong statement about the sanctity of the human dignity in life and after death. This is long overdue and necessary as a legislative step to save the life of a just and moral society.
