Introduction
The Supreme Court of India, recently, made a striking observation that sexual intercourse with a dead body, or necrophilia, does not amount to rape under Indian criminal law, as it is not explicitly defined as an offence. This stance contradicts the Court’s previous assertions that the right to dignity and privacy extends even to deceased people. The glaring absence of a specific provision against necrophilia raises a critical question: why does this disturbing act remain a loophole in India’s criminal justice system, leaving the dignity of the dead unprotected under the law?
The division bench of the apex court was hearing an appeal of the state government against the acquittal of the accused from the charges of rape by the Karnataka High Court. The Karnataka High Court, in Rangaraju v. State of Karnataka, (2023), held that sexual assault on the dead body of a woman would not attract the offence of rape, punishable under section 376 of IPC. The court had acquitted the accused having a charge of sexual assault on a woman’s body after killing her. Though the accused was finally convicted for the murder and not for rape. Subsequently, the court made a recommendation to the central government to amend Section 377 of the IPC to include dead bodies of all men, women, and animals or to add a new provision that would define an offence against a dead woman as necrophilia or sadism.
Most societies worldwide view this act as forbidden, unethical, and criminal, including the United Kingdom, Canada, New Zealand, and South Africa but India has no such legislation.
What is Necrophilia?
Necrophilia is a phrase derived from the Greek words “philios,” which means attraction to or love, and “nekros,” which means dead body; in other words, it refers to the erotic attraction to a dead body. It is a sexual and psychological condition in which a person experiences intense arousal and sexual attraction to corpses. It entails the urge for sexual activity or contact with the dead.
Psychological aspects and motive behind necrophilia
Edmund Kemper, an American rapist, and necrophiliac, once said, “If I killed them, you know, they couldn’t reject me as a man. It was more or less making a doll out of a human being… and carrying out my fantasies with a doll, a living human doll.”
Indian Legal Perspectives on Necrophilia
The Indian legal system lacks clarity on the subject of necrophilia. There is no specific provision that directly deals with it, and so it causes significant legal loopholes for sexual abuse against corpses. The lack of specific provisions addressing these heinous acts restricts the judiciary, often forcing them to acquit the accused.
Although there is no specific section that deals with Necrophilia, it can be considered an “unnatural sexual act” under Section 377 which talks about “voluntary carnal intercourse against the order of nature with any man, woman, or animal”. But the definition of Section 377 misses the term “corpse” thereby creating a loophole in it. Even Section 297 is inadequate to address necrophilia because it only prohibits acts with the intent to “wound the feelings of any person, or to insult the religion of any person (as they pertain to cremations and funerals) or to offer any indignity to any human corpse” and makes no mention of sexual activity.
Currently, these acts are typically prosecuted under Section 297 IPC (trespassing burial places) or Section 201 IPC (destroying evidence). The same has now been covered under Section 301 and Section 241 of the Bharatiya Nyaya Sanhita, 2023 (BNS) respectively.
Necrophilia has been more prevalent in India over the past ten years. During the pandemic, cases increased, not just in locations like morgues but also in incidents when people dig up the buried or even kill others for raping their bodies. Now, the state is unable to formulate proper charges due to the laws’ ambiguity. Hence, this heinous crime goes unpunished.
Analysis of Bharatiya Nyaya Sanhita
Section 63 of the BNS, earlier Section 375 of IPC addresses rape as non-consensual sexual intercourse with a woman or any act considered illegal under this provision. The term “woman” is defined in Section 10 of the IPC, now Section 2(35) of the BNS, as a female human of any age. Importantly, this section only pertains to living women, meaning that rape under Section 375 and the associated punishments under Section 376 of the IPC, now Section 64 of the BNS, do not apply to acts of necrophilia.
Section 315 of the BNS criminalizes any act of misappropriating a deceased person’s property if done maliciously. Section 356 BNS addresses defamation, making it a criminal offence to publish false and defamatory statements about a deceased person. Section 351 BNS criminalizes threats that involve harming the reputation or image of a deceased person, especially when such threats are used to intimidate someone close to the deceased. These sections aim to protect various aspects of a deceased person’s dignity; however, none explicitly address necrophilia. This highlights that while Indian law does recognize and protect the dignity of the dead to some degree, it falls short in addressing emerging crimes related to deviant sexual behavior, emphasizing the need for legal reforms to criminalize necrophilia and similar offences.
Why should Necrophilia be Criminalized?
“The dead may be voiceless, but it is our duty as the living to speak up and seek justice in their name.”
The question at hand revolves around the continuation of a person’s rights after their demise. The current legal framework in India does not explicitly include deceased individuals within the definition of a “person.” Nonetheless, certain rights inherently belong to an individual and cannot be separated, even after their passing. The Indian Succession Act of 1923 enables the execution of a person’s will after their death. The Allahabad High Court, in Ramji Singh and Mujeeb Bhai vs. State of U.P. & Ors held that a person also possesses the right to protect their deceased body from mutilation, waste, or organ removal without their prior consent or the consent of their family or the State in the case of unclaimed bodies.
In the recent case of Rangaraju v. State of Karnataka, 2023, the high court of Karnataka recommended that, “It is the high time for the Central Government in order to maintain right to dignity of the dead person/woman to amend the provisions of Section 377 of IPC should include dead body of any men, woman or animal or to introduce a separate provision as offence against dead woman as necrophilia or sadism as has been done in United Kingdom, Canada, New Zealand and South Africa, to ensure dignity of the dead person including woman.” Additionally, the National Human Rights Commission’s advisory, dated May 14, 2021, also emphasized key principles for upholding the dignity and protecting the rights of the deceased. It calls for non-discrimination in the treatment of the dead, prohibiting any form of physical exploitation, ensuring a dignified and timely burial/cremation, seeking justice in cases of crime related deaths, respecting legal wills, preventing defamation after death, and safeguarding the deceased’s privacy rights, with the overarching goal of preserving the dignity and rights of all deceased individuals, regardless of their background or circumstances.
Conclusion
The legal framework in India has, for long, remained blind to the abhorrent crime of necrophilia. While the judiciary has made remarkable advancements in safeguarding the dignity of the deceased, the absence of an explicit provision criminalizing necrophilia stands as a glaring gap in the Indian Penal Code. As societal norms evolve, legal systems must adapt to address emerging crimes that challenge moral and ethical standards. Comparative legal analysis reveals that several countries have successfully criminalized necrophilia, recognizing it as a fundamental violation of human dignity. India must follow suit by enacting robust legislation that not only defines necrophilia as a distinct offence but also prescribes stringent punishments for perpetrators. This would not only serve as a deterrent but also reaffirm the fundamental right to dignity that the Constitution of India guarantees to every individual, living or deceased.
– Authored by Adv. Akansha Sharma