It is deeply distressing to witness the degradation of a deceased person's dignity through the reprehensible act of necrophilia. Necrophilia is a paraphilia characterized by a sexual attraction or interest towards dead bodies. It is considered a rare and highly deviant behavior that is widely condemned and illegal in most of the countries. Individuals who engage in necrophilia may seek out corpses for sexual gratification, engage in sexual acts with the deceased, or display a sexual fascination with death and corpses.
Necrophilia is generally viewed as morally and ethically repugnant due to the violation of the dignity, autonomy, and consent of the deceased. It is important to note that engaging in necrophilia is illegal in many countries due to the desecration of human remains, public health concerns, and the infringement upon the rights of the deceased.
The understanding and study of necrophilia primarily fall within the fields of forensic pathology, psychology, and criminology, where it is considered as an abnormal and pathological behavior. Treatment for individuals with necrophilic tendencies typically involves psychological therapy aimed at addressing underlying issues, deviant sexual fantasies, and providing appropriate outlets for healthy sexual expression. In India, there has been a troubling rise in such cases, highlighting the need for specific legal provisions to prevent and address this issue.
There is unquestionable certainty that Article 21 of the Constitution of India encompasses the right to life, which inherently includes the right to live with dignity. Living a dignified life pertains not only to an individual during their lifetime but also extends to the dignity of their existence even after death. The entitlement to dignity and equitable treatment, as prescribed by Article 21, extends beyond the realm of the living and encompasses one's mortal remains following their demise.
A significant question that arises is whether an individual retains their constitutional rights after death. The answer to this question is complex. Indian laws and statutes do recognize, albeit vaguely, certain rights of a deceased person. The laws prevailing in India have not been given proper consideration or in other words lack accurate measures to curb offenses like necrophilia due to which the judiciary in order to abide by the law, has to acquit the offenders.
It is stated in the most prominent case “Rangaraju @Vajapeyi vs State of Karnataka”, Karnataka High Court on 30th May 2023, upheld that The accusation of murder against the defendant stands, as it was concluded that there is no basis for charging them with rape under Section 375 (rape) since engaging in sexual acts with a deceased woman does not constitute an offense according to the provisions of the Indian Penal Code.
The bench highlighted that the act of violating a corpse, commonly referred to as "rape," does not fall under the category of "unnatural offenses" as defined in Section 377 of the Indian Penal Code (IPC).
Upon careful examination of Sections 375 and 377 of the IPC, it becomes evident that a deceased body cannot be legally classified as a human or a person. Consequently, the provisions outlined in Section 375 or 377 do not apply to such cases, as noted by the bench.
The court, referring to Section 46 of the Indian Penal Code (IPC), determined that the term "death" pertains specifically to the "death of a human being." Consequently, the court concluded that rape can only occur between living individuals and not with a deceased body. The court emphasized that a dead body lacks the ability to provide consent, protest against rape, or experience fear of bodily harm, and it does not possess emotions of outrage.
Furthermore, the court relied on a Supreme Court ruling from 1989, known as "Pt Parmanand Katara, Advocate vs. Union of India," which emphasized the need to uphold the dignity of a deceased body. The ruling established the responsibility of the state to ensure respectful cremation and recognized that the right to dignity and fair treatment under Article 21 of the Constitution of India applies not only to living individuals but also to their bodies after death.
A bench of Justices B. Veerappa and Venkatesh Naik, Partially allowing the convict's appeal in the rape and murder case, expressed the need for immediate action, the court emphasized that it is high time for the government to bring about amendments to the IPC, specifically targeting the criminalization of necrophilia. The court recommended either revising Section 377 of the IPC or introducing a distinct penal provision to address the offense of necrophilia.
The accused argued in the high court that since the victim was murdered before her dead body was sexually assaulted, he should not be charged under Section 376 of the Indian Penal Code (IPC). It was further asserted that the act constituted necrophilia, and since there was no specific provision in the IPC to convict the accused, he should be acquitted.
Based on these arguments, the main question before the division bench of the high court was whether engaging in sexual acts with a deceased woman's body would qualify as rape under Section 375 of the IPC. The aforementioned is the court's observation as stated in its judgment.
The following countries have legislation in place that criminalizes necrophilia:
United Kingdom: In the United Kingdom, necrophilia is considered an offense under Section 70 of the Sexual Offences Act 2003. It is punishable by imprisonment for a period of up to 2 years.
Canada: In Canada, necrophilia is addressed under Section 182 of the Criminal Code of Canada 1985. Engaging in necrophilic acts can result in imprisonment for a maximum term of 5 years.
New Zealand: New Zealand's Crimes Act 1961 includes provisions against acts performed on a corpse that undermine its dignity. Section 150 specifies a potential imprisonment term of 2 years for such offenses.
South Africa: Necrophilia is explicitly prohibited under Section 14 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 2007 in South Africa.
In India, while corpses are not recognized as legal persons, there have been court judgments that emphasize the right to human dignity even after death. It raises the question of whether the right to dignity should extend to preventing sexual violations of corpses.
Conclusion:
In India, the legal status of necrophilia remains unclear and unsettled. The Indian Penal Code (IPC) does not explicitly address necrophilia as a distinct offense. Courts have interpreted provisions such as Section 375 (rape) and Section 377 (unnatural offenses) to exclude necrophilia from their scope, stating that a dead body cannot be considered a person or capable of consenting.
However, there have been calls for legislative action to criminalize necrophilia and provide specific provisions to address this heinous act. Some court judgments have emphasized the need to maintain the dignity of a deceased body and extend the right to dignity and fair treatment beyond the person's lifetime.
As of now, there is a legal gap in explicitly criminalizing necrophilia in India. It may require legislative amendments or tSure! Please provide the text or content you would like to make more attractive, and I will enhance it for you.he introduction of new laws to address this sensitive issue and ensure the protection of human dignity even after death.
SOURCES:
This article is written by Jahnavi of ICFAI LAW SCHOOL, HYDERABAD
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