This article has been written by Tarannum Vashisht, a student of the Rajiv Gandhi National University Of Law, Punjab. This article is an attempt at throwing light on the legal status and rights of bodies of people after they die.
Table of Contents
Introduction
On a cold winter night as I was passing by a cemetery, I saw the most horrific visual. I saw a man, naked trying to have sexual intercourse with a corpse! Brutally forcing his body over a dead woman. I was shaken to the core and ran back home. That was the day I started researching the rights of the dead. First of all, we need to understand the concept of a person. Who is a person? Also, when people die are they to be treated as mere things?
Concept of a person
Interestingly, the word person has been derived from the Latin word persona, which means the mask worn by a person. Until the sixtieth century, this term was used to refer to the role played by a man on stage. It was only after some time that this term started to be used in terms of someone having rights and duties.
It has to be noted here, that writers often limit the word personality to humans. However in law, the connotations are different, idols, company, gods, etc. all are given the status of juristic persons, and hence have rights as any other human being would have.
This word has now acquired multiple meanings. According to the famous jurist Litelmana, the essence of a legal personality is its “will”, the bodiliness of man being a completely different and unrelated attribute.
According to Salmond, a person can be anyone capable in law to acquire rights and duties. Similarly, Hindu law treats idols as personality. Therefore, this is evident that personality and humanity are not synonyms.
Persons in law have two categories, natural and legal. Natural persons are human beings, legal persons, on the other hand, maybe called artificial persons. They are imaginary persons who have rights and duties in law and in whom law vests personality by way of fiction.
If this is the case, are humans to be considered as legal persons after their death?
Who is a person under the Indian Laws?
Section 3(42) of the General Clauses Act defines who is a person. According to this definition, it includes a company or an association of individuals irrespective of the fact that it is incorporated or not. Henceforth, a person as per this definition would have rights and duties and would be treated as a legal entity under the law. The Indian Penal Code also defines a person under Section 11, and it includes a company, an association of a group of individuals irrespective of the fact that they are incorporated or not.
Can dead bodies be considered legal persons?
Salmond was of the view that the personality of a man commences from his birth and ends with his death. It is said that they cease to have any rights as all their duties and interests cease with their death. For determining that a dead person is a legal person or not, the following questions have to be answered.
Does the enforceability of a will indicate that dead are legal persons?
A will made by a person is indeed enforceable post his death, however for that enforcement to be successful, the will has to be made in favour of a living legal legatee. If the testament does not provide for bequeathing the property to living persons it cannot be legally enforced.
The enforceability thus depends on the fact that the person in the name of whom it is bequeathed is a living person or not. Hence, the fact that a deceased’s testament is enforceable, does not point to the fact of the deceased being awarded the status of a legal person.
However, the dispositions mentioned in his will are carried out as per law. This is true specifically for charitable purposes. Let’s take, for example, the maintenance of the grave of the dead. If it is mentioned in the will, that the whole graveyard would be maintained from the estate, then that would be done as per law. However, the maintenance of the grave of the dead would not be maintainable and hence unenforceable in law.
Whatever has been gifted by the deceased for charitable purposes would be maintainable under law but not otherwise.
Law protects the reputation of the dead. Does this point to the fact that dead are legal persons? The reputation of the dead is protected by law and a libel on the dead would be actionable under law. This is however for the sole purpose of protecting his descendants. This is the reason why the defamation of the deceased would be actionable.
When humans die, for obvious reasons they don’t have any duties and also can’t be subjected to any punishment. Therefore, when humans die they become mere things and hence do not enjoy the position of a legal person. So, one thing is clear, the dead do not enjoy the status of a juristic person. However, certain rights are provided to the dead. This would be enumerated further in this article.
Rights of the dead against sexual assault
Now let’s jump back to the incident which I was narrating at the beginning of the article. What are the rights that the dead have against sexual assault? To understand this concept, let’s first understand its cause.
Necrophilia
Necrophilia means a feeling of sexual enticement or sexual attraction that a minority population has towards the dead. The World Health Organization and the American Psychiatric Association has classified this as paraphilia. Paraphilia may be called a deviation, an abnormal sexual attraction towards atypical objects, situations, etc.
The situation in different parts of the world
Many countries around the globe have a well- defined law against people who try to treat dead bodies with indignity, more specifically against people who try to commit sexual offences against the dead.
New Zealand provides a section under the Crimes Act, 1961 which prescribes two-year imprisonment to those who treat dead bodies with indignity. These dead bodies may be buried or not.
United Kingdom’s Sexual offences Act 2003’s Section 70 deals specifically with people who commit a sexual act with a dead body. While Section 14 of the South African Law does the same in the country. While the United States Of America Lacks A Federal Law for the same, different states have their own laws punishing these offences.
Situation in India
Sexual offences against corpses are on the rise in India. One recent example is that of a 26-year-old woman whose corpse was gang-raped in Ghaziabad, Uttar Pradesh. Her corpse was taken out of her grave by the assaulters and was found naked twenty feet away from her grave. Another example of this is the 2006 Noida serial killings. In this, a rich businessman and his accomplice committed sexual assault on dead bodies of some women and children.
Despite all these horrific examples, India does not have a specific law in this regard. Although offenders are charged under Section 297 (trespassing on corpses) and Section 377 (Unnatural Sex) of the Indian Penal Code.
It should also be considered that there are some cases in which women are killed just before they die. In such situations, these sections don’t apply. Also, the degree of punishment given under the already present sections is very less considering the gravity of these offences. Hence, there is an urgent need for making specific laws in this regard in India.
Provisions for rights of the dead in India
In India, some rights have been provided by statutes like the Indian Penal Code to the bodies of people after they die. These are enumerated as under:
Section 297 of the Indian Penal Code
According to Section 297 of the Indian Penal Code, the irreverence of dead bodies are strictly prohibited. If any person with the intention or knowledge of wounding or insulting the religion of any person, commits trespass in any place set up for funeral rites or set up as a depository for the remains of the dead or treats a dead body with indignation or causes disturbance to people assembled to carry out funeral rites of the dead, he or she shall be punished for a term extending to one year or fine or both.
This section deals specifically with the people trying to trespass places set up for the conduction of funeral ceremonies or with people. It is pertinent to note that the person who must cremate or bury the dead also has the right to take action against the person who tries to harm the dead body in any way.
Property rights
Ordinarily, a corpse is not regarded as property in the eyes of law. However, for burial, when a person dies, his body becomes quasi- property in law. Its rights are then possessed by the spouse or next of kin. The property, however, is considered to be a part of the ground after burial.
Right to a decent burial
There was a time, not long ago, when as per law, it was legal to sell our organs. Although, now it has become legal to donate your organs if they are in the interests of humanity. A corpse, however, is no man’s property under the law. Therefore, it cannot be done away with any instrument or accord.
In India, the rights of the dead have been derived from Article 21 of the Constitution of India. This was followed in the landmark case of Pt.Parmanand Katara Vs. Union of India. In this case, public interest litigation was filed by a lawyer, challenging the method of execution. The court accepted the petitioner’s second contention that there was no need to mandatorily suspend the body of the dead for half an hour. The only mandatory provision is that a medical officer has to make it certain that the person is dead. Therefore, in this case, the Supreme Court Of India recognized that right to life, to fair treatment and dignity, extends not only to a living person but also to their bodies after death.
Another important case was that of S.Sethu Raja v. The Chief Secretary. In this, relying on the previous judgement, it was held that, right to human dignity is available to persons even after their death.
In another case of Ashray Adhikar Abhiyan Vs. Union of India, that deals with the rights of homeless people for a decent burial, a similar ruling was given. It was held by the apex court that people have a right to a decent burial, according to the religious faith to which the person belonged before death.
Therefore, it can be safely concluded that a dead body has a right to a decent burial in India. Also, it is in the best interests of both the deceased and the society that the dead body is buried or cremated as soon as possible.
Coming to the question of who has the duty or the right to bury the dead. This is as such not explained in any Indian law. However, it is accepted that the right to bury is with the spouse or the next in kin. In law, duty has also been imposed on the person under whose roof the person died.
Right to disinterment
Once a body is buried on public property, it becomes the property of and remains in the custody of the law. These dead bodies are not to be bothered and are to remain in peace. The court is mandated to protect these dead bodies against any disinterment or disturbance.
Law does not favour any form of disinterment and hence protects the sanctity of the buried dead bodies, in the spirit of public property. After a body is buried, it is not to be disturbed, unless the court orders to do so under exceptional circumstances.
Conclusion
Corpses don’t enjoy the status of legal persons in India. This according to me does make sense. Although bodies of people after they die are given some rights in India. In my opinion, however, there exists a lacuna in the number of laws provided to the dead bodies. Especially, laws related to sexual offences committed against corpses. There is an urgent need to study this matter in-depth and make appropriate laws for the same.
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