~By Tanya Verma
Necrophilia, characterized by the pursuit of sexual satisfaction through engaging in sexual acts with corpses, has undergone a significant transformation in societal perception. The recent acquittal by the Karnataka High Court (HC) of a man accused of sexually assaulting the lifeless body of a 21-year-old woman following her murder highlights the concern regarding the lack of legal provisions safeguarding the dignity of deceased individuals. Defining the same, the court quoted, “It is a morbid fascination with death and the dead and more particularly, an erotic attraction to corpses. It is a psychosexual disorder and DSM-IV classifies it among a group of disorders called ‘paraphilias’, including pedophilia, exhibitionism and sexual masochism and names necrophilia as ‘not otherwise specified’.” Consequently, the Court called for considerations to amend Section 377 of the Indian Penal Code (IPC) to encompass protections for the dead or introduction of provisions criminalizing such acts, akin to legislation in other jurisdictions. This piece seeks to examine the existing legal framework in India, identify its loopholes, and recommend necessary changes to ensure the preservation of dignity for the deceased.
INTRODUCTION
The issue of necrophilia and its legal recognition, or lack thereof, is not a recent development. Instances such as a 20-year-old laborer from Gurugram admitting to necrophilia with his rape victims in 2018, a serial killer in West Bengal arrested in June 2019 for murdering women and engaging in sexual acts with their corpses, and a shopkeeper in Mumbai murdering a female customer and desecrating her corpse on June 26, 2020, exemplify the presence of such disturbing cases. Adding to the ongoing controversies, the Karnataka HC issued a ruling stating that engaging in sexual acts with the corpse of a woman (necrophilia) would not be considered rape under Section 375 of the Indian Penal Code (IPC). Though these incidents were characterized by their barbaric nature, not solely due to the quantity of victims or murders involved, but rather due to the method and nature in which the offenses were perpetrated, the existing legal jurisprudence still paints an unclear picture.
LEGAL LANDSCAPE
India’s legislation on necrophilia is relatively underdeveloped compared to other countries globally. While numerous nations have established laws to address necrophilic acts, powerful or vague, India’s legal framework in this regard lacks clarity and exhibits ambiguity. For the purpose of this discourse, the section will be divided into three key issues. First, the author shall examine whether the dead fall within the purview of legal personhood extension, questioning their inclusion as subjects of rights. Second, the author shall explore the concept of consent regarding sexual interactions between the living and the dead. Lastly, the question of whether such acts can be equated to rape and whether the corresponding punishment serves commensurate to the offense shall be taken up.
- Legal personhood of the dead
To begin with, article 21 of the Indian Constitution safeguards the right to life and liberty for all individuals. The Supreme Court has observed in the past that this right extends not only to the living but also to the deceased. Further interpreting that the term ‘person’ in article 21 encompasses the right of a corpse to be treated with dignity, akin to how a living person would be treated.
The Indian Penal Code (IPC) lacks specific provisions addressing the said heinous and morally reprehensible crime. A close analysis of the code reveals that Section 297 vaguely attempts to provide punishment for trespassing on burial places and for acts that bring indignity to human corpses. However, this section does not recognize the right to dignity and protection against sexual misconduct for the deceased. Consequently, it is inadequate in addressing cases of necrophilia that occur outside of burial places. One such example is the Nithari serial killings, where the perpetrator murdered 19 girls and engaged in sexual intercourse with their corpses in a bungalow. Thus, the existing legal framework leaves a significant gap in the protection of the dignity of the deceased and the gravity of the offense committed.
In India, the definition of a ‘person’ is provided by the General Clauses Act (1977) under Section 3(42). According to this definition, legal persons encompass living individuals, companies, and groups of individuals, regardless of their incorporation status. Notably, the terms ‘man’ and ‘woman’ are defined in Section 10, IPC as individuals of the male or female gender, irrespective of age. While dead bodies are not living entities, they still retain their status as ‘humans’ even after death. In this context, Section 377 of the IPC can potentially be applied, which extends to include voluntary carnal intercourse against the order of nature, provided that all conditions are fulfilled. Its position post Navtej Singh Johar judgement saw a major shift when it decriminalized all consensual sex among adults including homosexual sex. In context of the ‘necrophilia’ debate, to establish culpability, it is crucial to satisfy three essential elements: [i] the engagement in voluntary intercourse; [ii] a violation of the natural order; and [iii] involving a man, woman, or animal. For effective addressal, it is suggested that certain terms be added to Section 377, ensuring that acts of necrophilia are unambiguously covered by this section. Before that, we shall address the term ‘voluntarily’, which brings us to the second part of this section.
As it is widely understood that a corpse cannot provide consent, the essential element of voluntariness is absent in cases of necrophilia. Despite necrophilia being an unnatural act, the element of voluntariness or consent cannot be fulfilled. “A careful reading of Sections 375 and 377 of IPC makes it clear that a dead body cannot be called a human or person. Therefore, the provisions of Section 375 or 377 would not be attracted,” the Karnataka HC stated. The rationale for this being, rape inherently involves an act committed against a living person, as it requires the absence of consent and the violation of a person’s will. Since a dead body lacks the capacity to provide consent, express protest, or experience fear of immediate bodily harm, it cannot be subjected to rape. The absence of feelings and the inability to experience outrage render the concept of rape inapplicable to a deceased individual.
While the set rationale is laid, necrophilia can potentially be addressed under Section 297 of IPC to address the legal void. Section 297 provides for punishment in cases where one intentionally causing hurt or insult to anyone’s religious feelings, or disturbing funeral ceremonies, in places of worship or burial sites. On similar application, if the necessary legal elements of intention are satisfied, necrophilia could be punishable as an offense that wounds the feelings of individuals or insults religious sentiments, as determined by the Court. To this end, though New Zealand and South Africa are the only two countries that have recognized necrophilia as a criminal offense, the United Kingdom, under Section 70 of the Sexual Offences Act, 2003, criminalizes intentional sexual penetration into any part of a dead person. In the United States, necrophilia is generally treated as a felony, although the severity of punishment may vary among different states. Similarly, the Criminal Code of Canada, 1985, addresses necrophilia under Section 182, making it punishable. Overall, these countries have enacted legislation aimed at protecting their citizens against the crime of necrophilia, albeit with varying degrees of legal penalties.
To this, Justice Prafulla Chandra Pant, the Acting Chairperson of the National Human Rights Commission (NHRC), proposed the introduction of legislation aimed at safeguarding the dignity of deceased bodies. Regardless of whether a death is natural or unnatural, it is the responsibility of the State to ensure the preservation of the deceased’s rights and prevent any form of mistreatment or crime against their bodies, which brings us to the third part of this section.
More often than not, the psychological condition of necrophilia has served as a significant driving force for criminals to resort to murder when they are unable to gain control over another person’s body. To be deemed ‘against the order of nature’, an act should be exceptionally rare and incapable of leading to procreation. Necrophilia is considered prima facie against the order of nature; however, its inclusion in this category is challenging. To the extent it affects society at large, the case of Darbara Singh, commonly known as the “baby killer,” involved a disturbing pattern of luring victims, predominantly young girls, by offering them chocolates, sweets, and similar enticements. The accused would then take them to secluded locations, slit their throats and attempted rape.
However, owing to ambiguity in interpretation, in Guwahati case, unlike that of recent Karnataka case or Darbara Singh case, the man was taken into custody, and charged under Section 306, along with 377 of IPC and Section 8 of POCSO. This ambiguity has contributed to the need for enhanced penalties for these barbaric acts. By imposing severe punishments, a clear legal standpoint can be established. Urgent amendments to Section 377, Section 297, or the introduction of separate legislation that prescribes lengthier imprisonment penalties are necessary. Without stringent laws, it will be challenging to bring about a change in the psychological perception associated with these crimes. Alternatively, if Section 377 cannot be invoked, it is imperative to establish separate legislation that comprehensively addresses the subject of necrophilia, as it has been extended by the Karnataka HC.
Further, Section 511, IPC, punishes ‘attempt’ and the argument put forth in R v. Cheesman further explains how such cases can be encompassed within this section. Interpreting the same, any act undertaken with the intent to commit a crime, forming part of a series of acts that would constitute the actual commission of the crime if not interrupted, falls under the purview of attempt. The moral culpability of the offender in cases of attempt is considered to be equivalent to that if the offense had been successfully carried out, thereby extending it to set culpability.
WAY AHEAD
Moving forward, it is imperative for the Indian legislature to strike a delicate balance between safeguarding the sanctity of the dead and preserving the rights of the living individuals involved in necrophilic acts. While acknowledging the universally taboo nature of necrophilia, it is crucial to address the contemporary relevance of this issue in the Indian context. After addressing the existing gaps and clarifying the grey area, it is clear that the current legal framework in India is unsuitable for addressing necrophilia and situate desired criminal liability. Therefore, it is imperative to develop dedicated legislation that addresses this issue, given the gravity of the cases observed in India. To include acts of necrophilia within the scope of unnatural offenses, an amendment can be introduced to incorporate the term ‘corpse’ into Section 377. Alternatively, in the absence of an amendment, the interpretation of the law can be broadened in line with the concept of attempt as outlined in Section 511 of the Penal Code. Recognizing the long-established principle of prevention being preferable to cure, it is evident that the window for preventing necrophilia acts in India has likely elapsed. The focus, however, must shift towards remedial measures that address and rectify this issue.
The author is a second-year law student at Dr. Ram Manohar Lohiya National Law University.