(Trigger warning: Murder, rape, and necrophilia)
Necrophilia (noun): A sexual interest in dead bodies
Source: Oxford Learners
Necrophilia is still a grey area in Indian law, but the Karnataka High Court lifted some of the ambiguity recently by observing that Sections 375 (rape) and 377 (unnatural offences) do not apply to necrophilia.
"A careful reading of Sections 375 and 377 of IPC [Indian Penal Code] makes it clear that a dead body cannot be called a human or person. Therefore, the provisions of Sections 375 or 377 would not be attracted," the court said while hearing an appeal against an order of the Sessions Court, which convicted a person for the murder and subsequent 'rape' of a 21-year-old woman.
The court, as per LiveLaw, further recommended that the central government amend the provisions of Section 377 of IPC to include necrophilia or introduce a separate provision.
This order by a bench of Justices B Veerappa and Venkatesh Naik is significant precisely because Indian law is fairly vague as far as necrophilia is concerned. In fact, there is no section in the IPC that can prima facie implicate anyone for necrophilia.
So, how has the law dealt with such cases in the past? What are the limitations of Sections 375, 377, and other laws when it comes to criminalising necrophilia? The Quint explains.
Karnataka High Court Ruling: Why Is Indian Law So Ambiguous About Necrophilia?
1. What's the Case About?
The accused in the aforementioned case contended that the offence of rape be removed as it was committed after the murder of the woman – and as there is no specific provision against necrophilia in the IPC, he argued that he should be acquitted of rape.
The HC then set aside the Sessions Court's order and convicted the accused of murder alone – while pointing out that it is high time the central government framed new laws or made changes to the IPC to make necrophilia an offence.
What exactly does the law say?
Laws Related to Necrophilia
India has reported several cases of alleged necrophilia over the past few decades – but the most prominent of them all was the 'Nithari serial killings' or the 'Noida murders' of the late 2000s.
While investigating the death of a 20-year-old woman in 2006, the police arrested a businessman and his domestic worker, only to find out later that the duo murdered at least a dozen children and allegedly attempted necrophilia with their dead bodies.
While both the accused were sentenced to the death penalty for murder, they were also charged with two other sections: 297 and 377 of the IPC.
Section 297 pertains to trespassing on burial places, wounding the religious sentiments of a person, and "offering indignity to any human corpse." The offence is punishable for up to a year.
Speaking to The Quint, advocate Ayesha Zaidi says, "The issue with a person who has indulged in necrophilia being charged under Section 297 is that it pertains to trespass on burial places and protecting the religious sentiments of people. More often than not, in such cases, there is no trespass. In the Nithari case, there was no trespass whatsoever – and this section is not applicable to several cases."
She adds: "This is not an issue of just hurting religious sentiments, it is an issue of violating dead bodies and not allowing them dignity."
Yashaswini Basu, a lawyer who works as the Outreach Lead at Nyaaya, tells The Quint:
"This provision is often applied to grave diggers, etc. But what is important here is the intent. This section brings in the aspect of necrophilia because it talks about the intention of wounding the feelings of any person."
"But this, again, is a very complicated thing," she adds, "because considering the feelings of a person who is no longer living poses questions. Moreover, this provision is limited to religious places and doesn't apply to other spaces where offences like these are common – like a mortuary."
In fact, recognising this, the Karnataka HC, in the recent hearing, directed the government to ensure that CCTV cameras are installed in all government mortuaries and private hospitals to prevent offences against a dead body.
It is also important to note that Section 297 does not address sexual intercourse, sexual assault, or any behaviour that is sexual in nature. And that is usually where Section 377 and 375 come in.
Expand2. And Their Limitations?
The Karnataka HC ruling appears to go against a previous Supreme Court order in Childline India Foundation vs. Alan John Waters, wherein it said that necrophilia can be interpreted as "carnal intercourse against the order of nature" – i.e, Section 377.
Section 377 states that "whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years…"
Zaidi, however, explained that applying Section 377 to necrophilia raises a few concerns. These include:
The phrase "against the order of nature" has a wide definition. It is vague and does not clearly say whether it pertains to a living or dead person.
The section refers to "carnal intercourse against … any man, woman or animal." But at the same time, Section 10 of the IPC defines a man and woman as living persons. So, that cannot be applied here.
As for invoking rape laws, the limitation – as the Karnataka HC pointed out – is that it applies to living persons and not the dead, she adds.
Expand3. Dignity in Death
The lacuna in the IPC appears to suggest that necrophilia is not a crime that jeopardises a person's human rights in India.
But Article 21 of the Indian Constitution offers citizens the fundamental right to live with human dignity. Several judgments have extended this right to the dead as well.
For instance, the Supreme Court, in Parmanand Katara v Union of India, said that Article 21 enshrines the rights to life, freedom, and dignity for both living people and the dead.
Also, in Ashray Adhikar Ahiyan v Union of India, the apex court recognised the right of homeless people to have a decent burial after their death in accordance with their religious beliefs.
"Right to dignity is also expanded [sic] to a dead person," the Karnataka HC also said in its recent ruling.
"Article 21 offers dignity, fair treatment, and respect to citizens – and these are also extended to their mortal remains, because it is a bodily right," says Basu.
"Even after they have passed away, their body is a receptacle of that right. So, if you look at it that way, necrophilia is violating their dignity – and is a violation of their fundamental right," she adds.
Expand
What's the Case About?
The accused in the aforementioned case contended that the offence of rape be removed as it was committed after the murder of the woman – and as there is no specific provision against necrophilia in the IPC, he argued that he should be acquitted of rape.
The HC then set aside the Sessions Court's order and convicted the accused of murder alone – while pointing out that it is high time the central government framed new laws or made changes to the IPC to make necrophilia an offence.
What exactly does the law say?
Laws Related to Necrophilia
India has reported several cases of alleged necrophilia over the past few decades – but the most prominent of them all was the 'Nithari serial killings' or the 'Noida murders' of the late 2000s.
While investigating the death of a 20-year-old woman in 2006, the police arrested a businessman and his domestic worker, only to find out later that the duo murdered at least a dozen children and allegedly attempted necrophilia with their dead bodies.
While both the accused were sentenced to the death penalty for murder, they were also charged with two other sections: 297 and 377 of the IPC.
Section 297 pertains to trespassing on burial places, wounding the religious sentiments of a person, and "offering indignity to any human corpse." The offence is punishable for up to a year.
Speaking to The Quint, advocate Ayesha Zaidi says, "The issue with a person who has indulged in necrophilia being charged under Section 297 is that it pertains to trespass on burial places and protecting the religious sentiments of people. More often than not, in such cases, there is no trespass. In the Nithari case, there was no trespass whatsoever – and this section is not applicable to several cases."
She adds: "This is not an issue of just hurting religious sentiments, it is an issue of violating dead bodies and not allowing them dignity."
Yashaswini Basu, a lawyer who works as the Outreach Lead at Nyaaya, tells The Quint:
"This provision is often applied to grave diggers, etc. But what is important here is the intent. This section brings in the aspect of necrophilia because it talks about the intention of wounding the feelings of any person."
"But this, again, is a very complicated thing," she adds, "because considering the feelings of a person who is no longer living poses questions. Moreover, this provision is limited to religious places and doesn't apply to other spaces where offences like these are common – like a mortuary."
In fact, recognising this, the Karnataka HC, in the recent hearing, directed the government to ensure that CCTV cameras are installed in all government mortuaries and private hospitals to prevent offences against a dead body.
It is also important to note that Section 297 does not address sexual intercourse, sexual assault, or any behaviour that is sexual in nature. And that is usually where Section 377 and 375 come in.
And Their Limitations?
The Karnataka HC ruling appears to go against a previous Supreme Court order in Childline India Foundation vs. Alan John Waters, wherein it said that necrophilia can be interpreted as "carnal intercourse against the order of nature" – i.e, Section 377.
Section 377 states that "whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years…"
Zaidi, however, explained that applying Section 377 to necrophilia raises a few concerns. These include:
The phrase "against the order of nature" has a wide definition. It is vague and does not clearly say whether it pertains to a living or dead person.
The section refers to "carnal intercourse against … any man, woman or animal." But at the same time, Section 10 of the IPC defines a man and woman as living persons. So, that cannot be applied here.
As for invoking rape laws, the limitation – as the Karnataka HC pointed out – is that it applies to living persons and not the dead, she adds.
Dignity in Death
The lacuna in the IPC appears to suggest that necrophilia is not a crime that jeopardises a person's human rights in India.
But Article 21 of the Indian Constitution offers citizens the fundamental right to live with human dignity. Several judgments have extended this right to the dead as well.
For instance, the Supreme Court, in Parmanand Katara v Union of India, said that Article 21 enshrines the rights to life, freedom, and dignity for both living people and the dead.
Also, in Ashray Adhikar Ahiyan v Union of India, the apex court recognised the right of homeless people to have a decent burial after their death in accordance with their religious beliefs.
"Right to dignity is also expanded [sic] to a dead person," the Karnataka HC also said in its recent ruling.
"Article 21 offers dignity, fair treatment, and respect to citizens – and these are also extended to their mortal remains, because it is a bodily right," says Basu.
"Even after they have passed away, their body is a receptacle of that right. So, if you look at it that way, necrophilia is violating their dignity – and is a violation of their fundamental right," she adds.
The Karnataka HC's ruling is, therefore, highly significant, says Zaidi. "Necrophilia, which is a heinous act, needs to be brought into the criminal framework," she points out.
Basu adds, "As heinous as it may be, there is not enough legal scholarship about necrophilia. It is always seen as a crime that is committed by serial killers – and not as an offence of its own. But what the Karnataka HC order does is that it establishes that there is a lack of legislation and it lifts the ambiguity surrounding the existing laws."
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