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Deconstructing Section 297 IPC: Extension, Inclusion and Reformation

Necrophilia “a recurrent, intense sexually arousing fantasies, sexual urges, or behaviours generally involving non-human objects, the suffering or humiliation of oneself or one’s partner, children and non-consenting persons (this includes dead bodies)” has always been one of the most important topics to research about both because of its legal implications as well as its psychological facets. It has never failed to shock readers with horrifying perspectives and barbarous acts. No wonder that it has been an attention seeking subject for movies and books. The turning point is that despite being a subject of such nature, there is very little research and lack of open-minded understanding about the concept. This is the primary reason why worldwide laws on necrophilia are either underdeveloped or ambiguous.
Protection and Recognition of DEAD
As far as clarification is required regarding a corpse’s  legal status, the laws in India do not provide an absolute solution. The criminal justice system of India addresses this issue either in an implied manner or through various judicial pronouncements that have reached the conclusion through interpretation of law expressing that a corpse has the right to dignity enshrined in Article 21 of the Constitution. Despite this, the legal status of a dead person remains unaddressed per se. A man’s death is accompanied with the state of that individual being destitute of his or her position of a legal entity, duties and rights except for a few rights as follows: (1) bodily rights, (2) right to influence passing over of estate and the (3) right to reputation. A resolution had been adopted by the UNCHR in 2015 that threw light upon the importance of handling corpses with care, efficient management and disposal while also giving attention to the needs of the deceased’s families.
It is an obligation upon the State to formulate laws which are coherent with the international guidelines. Necrophilia is seen as vandalism and not sexual violation of the deceased. The Chairperson of NHRC, P. C. Pant suggested the formulation of a legislation which will protect a corpse’s dignity and will also draw authority from Article 21 that has been interpreted to give protection to dead bodies too. An obligation exists for the State to ensure that any crime against a corpse is prevented. A dead body has the inherent right to remain unmolested and undisturbed.
In the matter of Jamuna Das Paras Ram v. State of Madhya Pradesh, it has been interpreted by the MP High Court with reference to Section 392 of IPC that the term ‘person’ has a wide ambit that also includes the person’s body. Therefore, a corpse too must be given the same rights notwithstanding the fact that it is dead or alive.
Extension of the term ‘Trespass’
Section 297 of the IPC, charges individuals defiling human corpses. But there are various restrictions with the said provision. Initially, just those people can be caught under Section 297 for acts disallowed under 297(1) who have intruded into the burial grounds.
Issue 1. Undue protections to ‘certain individuals’: A mortuary guardian, a worker in the funeral home, gatekeepers of the mortuary or watchmen of the cemetery and attendant of the graveyard or whatever other individual who is available at one or the other spot under their authority limit cannot be held responsible regardless of whether they held guilty under sub-section (1) since they have not intruded into both of the spots. A person with a necrophiliac tendency always tries to reach out to places which have easy access to dead bodies. Section 297(1) falls flatly regarding the very first requirement, since this protects people who commit necrophilia without trespassing into a burial ground and keeps them out of the clutches of the Indian law.
Issue 2. Limitation to Burial Place: The section takes into account those acts of necrophilia which are committed by intruding into a crematory ground or cold storage of dead bodies. It does not take into account, act carried out at other places such as those which had been carried out in the atrocious events of the Nithari case in India related to the serial killing of 19 girls and their subsequent rape. The negative effects of the legislation is that a perpetrator even with an extremely grave act of violation of a corpse can get away with the crime because the act of trespass has not been performed. Thus, Section 297 stands unsatisfying on safeguarding the right to dignity and right against sexual misconduct, as it provides certain limitations (as safeguards) in its effective implementation.
Inclusion of Deterrence in the Society
Section 297(2) lays down a period of one year under imprisonment against an act of necrophilia.
Issue 1. Lenient punishment scheme:  With respect to comparison of Penalties in the Indian legal system, for sexual assault / offence/ harassment/ rape. Section 354A. 2 … imprisonment for a term which may extend to three years, or with fine, or with both. On the other hand for necrophilia/ indecent interference, under Section 297, the imprisonment of either description for a term which may extend to one year, or with fine, or with both. The above analysis is concluded on the finding that necrophilia, once acknowledged, is taken to be as serious as any other grave sexual crime and it is implied that the punishment too must be either equal to or more than the punishment stipulated for other sexual offences. However, if we take a practical approach, the very unconventional act of necrophilia is hardly acknowledged as an act of crime or offence. The punishment meted out is a very lenient one and it cannot be expected that the fear of punishment would prevail and prevent one from executing such an act.
Issue 2. No classification for offence: Another loophole in the law is that no law takes into account the types of necrophilic acts. Existing research has classified necrophilic acts as opportunistic and homicidal acts and the third type being necrophilic fantasizing. Although, other crimes such as theft are classified on the basis of psychology and graveness of intent to decide an appropriate punishment, the same is not the case with necrophilia. Acts of murdering a person to obtain a body are surely more grave than an act where a necrophile is opportunistic and executes an act of corpse rape only when a body is within his access. The root case and psychology at the root of both the acts are completely different and this distinction must be implemented by the laws to decide for gravity and punishment in accordance. Not just punishment, the justice system has always used a preventive approach as well. A Classification of necrophilia would also help identify the individuals who need help through rehabilitation. For instance, an opportunistic necrophile would not require rehabilitation but a necrophile who kills to rape would surely require the process.
Issue 3. Defunct sanctions: It is not a sparse phenomenon in India that necrophiles have raped the corpse after the act of brutal murder. Such a perverse and deep-rooted mindset or uncontrollable desire has a large societal threat. It is a larger threat than it was initially perceived by those who drafted the statute. In SC Advocates-on-Record Assn v. U.O.I, Pandian J. opined that: “the exploration of the new principles are essential in those areas not before explored: more so when the old principles are found to ne not responding to the unresolved and unforeseen modern challenges or to have become inapplicable to the new situation or found to be unsound.” Thus, it is not worthwhile to continue with the existing laws since they have no effect on creating a sense of deterrence in the minds of criminals by inculcating a fear of law and punishment. Unless the punishments are amended into harsher ones, a psychological change which is very much required to overcome the problems from its roots will be a very far fetched idea.
Conclusion
Through this article, the authors present the primary findings that have arised from the research on whose basis, recommendations are being presented to reach an effective addressal of the issue. To suggest, the explicit mention of the term ‘trespass’ in Section 297 can be removed from the statute to give it a wider purview. This omission will ensure that even those who are serving at a position where corpses are easily available, such as crematory grounds or cold storages. An alternate solution can be to remove the term ‘trespass’ and the inclusion of an explanation such as- ‘A person who commits an act as mentioned and prohibited in (1) while on duty at a morgue or crematory ground shall be liable to be punished’.

 

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Debarati Pal is a first year law student at National University of Study and Research in Law, Ranchi, Jharkhand

 

 

 

Kabir Jaiswal is a fourth year law student at National University of Study and Research in Law, Ranchi, Jharkhand. 

Content Picture Credit: Lawoctopus

 

 

 

 

 

Kindly note that the views and opinions expressed are of the author and not of the Indian Journal of Law and Public Policy.

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