RIGHTS OF THE DEAD
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This article is written by Shivansh Dwivedi from Nirma University, Institute of Law.

Table of Contents

Introduction

“The dead cannot cry out for justice, it is the duty of the living to do so for them”

Indian Constitution is the largest written constitution in the world and yet it is silent about certain rights, the rights which were beyond imagination while drafting the constitution. These rights revolve around one question, does a person have rights after his death? Or does the state recognize a person after his death? The answer to the latter is yes as the enforcement of a person’s will after his death is a clear example of the state’s recognition of a dead person, on the other hand, the rights of a dead person are very vaguely covered by Indian laws and statutes. This gives rise to the crimes like Necrophilia. The term ‘Necrophilia is derived from a ‘nekro’ (dead body) and ‘philia’ (attracted to / love) and is defined as a paraphilia whereby the perpetrator gets sexual pleasure while having sex with the dead. A necrophiliac is a person who voluntarily indulges in such acts which are generally motivated by sexual desires.      

In India, the act of necrophilia is not given proper consideration as it deserves. The Indian legal system lacks several legal measures and contains vague provisions which result in some major loopholes for a crime like necrophilia. Because of such potential loopholes the judiciary, being bound by the law, has to acquit the accused unwillingly. In the past decade, India has seen rising cases of necrophilia and not only in the places like mortuary but have also seen a massive number of cases where people are digging out buried corpses and even murdering other people for raping their corpse. One of the most prominent cases of necrophilia in India is the Nithari case (2006) in which the accused and his servant were taken into custody after it was discovered that 19 girls were missing after visiting the house of the accused. During the investigation, several pornographic CDs and naked pictures of different women and children were discovered from his house and several cases of murder, rape, abduction, sexual assault against children, and cannibalism were filed against the accused and his servant. The servant confessed the crimes and stated that the accused killed 16 people (9 female children, 2 male children, and 5 adult women). He used to kill the victims in his living room then dragged the bodies upstairs in a bathroom and attempts to rape them and then chopped them into small pieces to cook them and threw the rest into the drainage behind his bungalow. 

Recently in May 2020, a 50-year-old man in Assam was arrested by the police for his alleged sexual intercourse with the dead body of a 14-year-old girl. In 2015 Skarkur Lucas from Ghana, an attendant in a mortuary confessed on a live streaming news channel that he had sex with the dead bodies of women in the mortuary “many times” as he did not have any girlfriend. Generally, in most of these cases, the accused are charged for murder, rape, sexual assault, and cannibalism depending on the case, but are not charged for necrophilia because the laws are very vague about it. Because of such uncertain laws, the state is also not able to frame right charges and this murky crime is left unpunished. 

Indian Laws Concerning Necrophilia 

Although Indian laws are very uncertain regarding a crime like necrophilia but do not ignore human rights after the death of a person. Article 21 of the Indian constitution not only recognizes a right to life with dignity and respect but also include the right to die in a dignified manner and the Supreme  Court in the case of Parmanand Katara vs. Union of India further recognized that Article 21 provides the right to life, fair treatment, and dignity, and these rights extend not only to the person alive but also to their dead bodies. In the case of Ashray Adhikar Abhiyan vs. Union Of India, the Supreme  Court held that the dignity of the dead must be respected and a deceased homeless person has a right of decent cremation according to his/her religious customs. In the case of Ramji Singh and Mujeeb Bhai vs. State of U.P. & Ors., Allahabad High Court said that the right under Article 21 also includes a right to treat the dead body a person with the same respect as the person would have deserved while being alive and to protect the dignity of dead person the court also said that post-mortem should also be avoided until very necessary.     

Section 297 of the Indian Penal Code very vaguely covers the act of necrophilia by stating that any person who, “commits any trespass in any place of worship or on any place of sepulchre, or any place set apart from the performance of funeral rites or as a depository for the remains of the dead, or offers any indignity to any human corpse, or causes disturbance to any persons assembled for the performance of funeral ceremonies”. By stating “offers any indignity to any human corpse” the provision is trying to cover crimes against the dead but as the Section mainly talks about the trespassing of burial places or religious places where bodies are kept it becomes very difficult to include a place like a mortuary in this Section, leaving a major loophole over an aspect which is not covered by the law. Secondly, the Section states that “Whoever, with the intention of wounding the feelings of any person, or of insulting the religion of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted thereby”. This clause of the Section implies that the primary intention of this Section is to protect the religious rights of people and not to provide any rights to a dead person against a crime like necrophilia.   

On the other hand, Section 377 IPC can include necrophilia under its ambit as it says that “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal”. In the case of Childline India Foundation vs. Allan John waters, the Supreme  Court said that there should be an act of carnal intercourse and such act should be against the order of nature to constitute the crime under Section 377. For an act to be against the order of nature it should very uncommon and cannot result in procreation. Necrophilia is prima facia against the order of nature but is still very difficult to include in this Section because of the term “voluntarily”. This Section only covers the voluntary act of carnal intercourse that is against the order of nature. Because the dead cannot give or deny consent, it becomes impossible to determine whether the act of necrophilia is voluntary or not. If the act is done without consent then it falls under the ambit of rape which completely removes it from the ambit of Section 377 i.e. unnatural offences. Because of the constant debate on the term “voluntarily”, necrophilia is not included in this Section but rather left ungoverned and the right to dignity of deceased citizens is left unprotected. 

International Stance on Necrophilia and Rights of the Dead 

At a global level, the dignity of a dead person is considered as an intrinsic part of human rights, and to make sure such human rights are respected various international conventions and declarations have included various provisions regarding the same. Article 130(1) of the fourth Geneva Conventions talks about the dignity and respect of the dead people and provides that the states should ensure an honourable burial of dead people and if possible, such burial should be done according to the rites and religious rituals of the person. UN Commission on Human Rights in a Resolution adopted in 2005, underlined the importance of dignified handling of human remains, including their proper management and disposal as well as of respect for the needs of families. Other than such international declaration and conventions among various countries, some countries like New Zealand, South Africa, and the UK have enacted very stringent and precise provisions that criminalize necrophilia and any other act that interferes with the dignity and respect of such corpses. 

Conclusion 

It is high time for the Indian Legal System to properly comprehend and scrutinize the crime of necrophilia because of its gravely offensive nature. As India is a part of different international conventions and decelerations that recognises and protect the right to dignity of the dead, the Indian legal system should also include the same in its laws in a precise manner. Indian judiciary has also recognized this right of the dead in several judgments and has tried to protect such rights of the corpses along with the sentiments of their family members. As India is facing rising cases of necrophilia and a law against necrophilia has become the need of the country. Section 377 of IPC has the potential to include necrophilia in its ambit as necrophilia is evidently against nature but because of a constant uncertainty created by the term ‘voluntarily’ in the Section, it becomes difficult to cover necrophilia in its ambit. On the other hand, in Section 297 of the code, the duration of punishment for trespassing burial or religious place and causing indignity to any corpse is a maximum imprisonment of one year which cannot stand appropriate for a felony like necrophilia. Any kind of sexual activity with a corpse is offensive to the dignity of the corpse, family of the corpse, and to the community at large, considering the above points India should have a proper law to define and punish this crime, covering every aspect of this murky crime and awarding a stringent punishment for an appropriate duration for the defilement of human remains.       


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