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Violating the Dead: A Legal Review of Necrophilia u/s 377 IPC

 

 

“She killed herself because she was a victim of sexual abuse. But even in death, her body was not spared. Her soul must be, somewhere, crying out in pain. We live in a society that turns a deaf ear to women who are abused everyday, can we then hear the cries of the women who are dead? I have never feared death, but today my biggest fear is dying; my body after my death.”

 

Although necrophilia is poorly understood in India, almost all countries across the globe have legislation against necrophilia. Some are powerful, while others are vague and ambiguous. India is at the lowest level among the latter group of countries because legislative reforms in this arena are more obscure than that of other countries.

 

Part III available to the DEAD

Right to life and liberty has been protected by Article 21 of the Indian Constitution for every person. In Paramanand Kataria, Advocate v. Union of India & Another (1995), the Apex Court had made a valuable observation that this right is not only limited to a living person but must be guaranteed to the dead also. The same had been reinforced in Ramji Singh Mujeeb Bhai v. State of U.P and Ors. (2009), where the Hon’ble Court interpreted that the term ‘person’ in Article 21 is enough to believe that a person’s right to live with dignity also extends to the corpse. It must be treated in a respectful manner in the same way as the person would have been treated if he were alive. Moreover, S.Sethu Raja v. The Chief Secretary (2007), was another landmark judgment which drew inspiration and authority from the previously mentioned judgment to confirm that even the dead are entitled to the right to dignity.

 

Revisiting Section 377 IPC

Unnatural offences are penalised under Section 377 of the IPC. It is undoubtedly against the order of nature to perform an intercourse with a corpse but the provision has a limitation.

Issue 1: DEAD are humans too: The existing laws recognise the act of sexual intercourse only with a woman, a man or an animal but as described earlier a corpse is no more a legal person. It is just a dead body. It is argued that once a person is dead,  the person is considered to be a Quasi subject in the eyes of law. This concept of the legal status of a dead body is a complication in the path of penalizing necrophilia. New Zealand and South Africa are the only two countries who have acknowledged the crime of necrophilia explicitly. The definition of a ‘person’ is given by the General Clauses Act in Section 3(42). This definition includes a living individual, a company or a group of individuals notwithstanding whether it is incorporated or not. According to this, these persons are the legal persons who would have duties and rights under the law. Additionally, the words ‘man or woman’  has been provided with the definition in Section 10 of IPC as an individual of the male or female gender irrespective of the age. Even though dead bodies are not living but even after their death, they remain to be ‘humans’. Section 377 can thus be interpreted as the ultimate resort if the last condition is also fulfilled. As a suggestion, the terms ‘man’, ‘woman’,‘animal’ and ‘corpse’ could be added to Section 377 so that acts of necrophilia attract this Section too undoubtedly.  In a situation where Section 377 cannot be attracted there must be a separate legislation which deals with the subject in a comprehensive manner.

Issue 2: Non-consensual sexual interaction: Section 377 takes into consideration those acts which have been carried out without consent or involuntarily. The provision uses the word ‘voluntary’, which means that the sexual intercourse must be voluntary but in case of necrophilia, it is understood that a corpse is not in a position to provide consent. The primary element is absent and there is no corrective arrangement in India which condemns the ‘specific demonstration of necrophilia’ in the absence of trespass. The technical challenges in the application of this provision to cases of necrophilia is with respect to the requirement that the clause addresses ‘voluntary’ sexual interactions among women, men and animals that is violative of natural configuration. Despite the fact that the act of necrophilia is unnatural, the element of voluntariness or consent cannot be satisfied. It can be thus concluded that the legal provisions are of a superfluous nature in this regard.

Issue 3: Barbaric crime, yet obscure punishment: The mental state of being a Necrophile has acted as a prime motivator for criminals to commit murder when they have failed to attain the control of other’s body. One can very well imagine the heightened extent of inhumanity and barbarism of such a perpetrator. A recent example can be taken of Guwahati where a 50-year-old man was taken into custody on the charges that he had sex with the Corpse of  a girl of 14 years and charged under Section 306 and 377 of IPC and POCSO Act’s Section 8. It was contented by the deceased’s family the man has constantly been trying to harass her in extreme ways and this is what finally led to the girl taking a step towards suicide. The crime of against get another minor girl who belong from Haryana was of a similar nature where to individuals from her neighbourhood murdered the 11-year old and rape her corpse.

 Besides a high underline ambiguity in the Indian laws in this regard, is also the reason behind the increase in the punishment for such barbarous acts. It is high time to modify Section 377 or insert separate sanctions. Severe punishment draws a clear legal perspective in this regard. An immediate requirement for amending Section 377 and Section 297 or a separate legislation which provides for a longer penalty as imprisonment exists. As long as the laws are not stringent,  it will not be possible to alter the psychological perception of the crime.

 

Conclusion

This research article presents the main findings arising from the research whilst proposing policy recommendations to effectively address the issue from a legal perspective. There is no explicit mention of the term ‘necrophilia’ in the Indian laws which forbids any specific criminal liability. It is highly recommended that a new legislation dedicated to this purpose be formulated and this acute requirement has its roots in the graveness of the case of necrophilia that India has already witnessed. In addition to men, women and animals, the term ‘corpse’ can also be included in Section 377 through an amendment to bring acts of necrophilia under the purview of unnatural offences unconditionally which will certainly attract Section 377 in the case of necrophilia. It is not a new idea that prevention is always better than cure. Analysing the scenario in India, it seems that the country has already crossed the period in which it could have prevented acts of necrophilia and now stands the chance to cure it which it cannot afford to lose.


 

 

ABOUT THE AUTHORS

KABIR JAISWAL is a 4th year student pursuing B.A. LL.B. (H) from NUSRL, Ranchi

 

 

 

 

 

 

DEBARATI PAL is a 1st year student pursuing B.A. LL.B. (H), from NUSRL, Ranch

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