Abstract:
Necrophilia, the practice of having intercourse with a dead body, is strongly frowned upon and morally abhorrent in cultures all of the world, including India. Even though there is little information about necrophilia in India, it is typically thought to be a rare occurrence. Indians have a great aversion to necrophiliac actions because of the country's diversity in terms of culture and religion, as well as the country's high emphasis on respect for the deceased and societal conventions around death and funeral customs.
Necrophilia's legal status in India is not specifically covered by distinct legislation. Instead, the act would probably be dealt with in accordance with current legislation, such as those covering offences against the dead's dignity or outraging a woman's modesty. These laws typically strive to uphold the sanctity of the dead, defend individual autonomy, and maintain public order.
While incidences of necrophilia are not frequently recorded in India, grave robbery and manipulating corpses have occasionally made headlines. Public outcry and demands for stronger legislation and improved protection for the dead have been sparked by these instances. However, no special legislation addressing this issue in the Indian context has been drafted due to the rarity of necrophilia and the intricacy of the legal and cultural issues involved.
It is important to remember that societal norms and legal systems can change over time. As awareness increases, there may be a greater understanding of the necessity for special legislation that criminalises necrophilia and imposes suitable punishments. To balance protecting the rights of the deceased with addressing the psychological issues related to such behaviour, any legislative action in this area would need to be carefully considered, in cooperation with legal and mental health specialists.
Overall, although necrophilia is generally abhorred and viewed as morally wrong in Indian society, the specific legal reaction to this problem still heavily depends on the country's existing laws regarding unnatural offences, offences against modesty, and respect for the dead. Hence, this article aims to address those grey areas and provide recommendations for the same.
INTRODUCTION:
In a recent decision, the Karnataka High Court cleared a man who was accused of raping a 21-year-old woman's dead body of any wrongdoing under the rape or unnatural offences provisions of the Indian Penal Code. However, the court maintained the decision of a lower court convicting the defendant of murder. The central government should change the legislation to make necrophilia an offence, the court of Justices B Veerappa and Venkatesh Naik recommended. The court reached the decision that the murder conviction would stand based on the prosecution's evidence, which included evidence found at the crime scene and the injuries sustained by the deceased woman. In this research article, we would be recognizing the need for a separate legal provision to consider necrophilia as an offence under IPC.
WHAT IS NECROPHILIA?
"Necrophilia" is the term for a macabre obsession with death, the dead, and more specifically, an erotic attraction to corpses. It is a psychosexual condition that falls under the DSM-IV's category of "paraphilias," along with paedophilia, exhibitionism, and sexual masochism. It "could be the result of rage, experimentation, or lust rather than sexual necessity or habit," according to the DSM.
PRESENT LAW AGAINST NECROPHILIA IN INDIA:
Necrophilia is not expressly prohibited by any IPC provisions. The section does not clearly identify "corpses," despite the fact that it can be interpreted as an "unnatural sexual act" under Section 377 of the IPC ("voluntary carnal intercourse against the order of nature with any man, woman, or animal").
Section 377 of the IPC deals with Unnatural offences. It states that whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Further explanation is provided which states that Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
Further, Section 297 of the IPC cannot be considered as well. Judges who presided over instances that are presented before the courts frequently feel constrained to focus on either the illegality of trespassing on graveyards under Section 297 [ii] or "Sodomy" under Section 377. Even Section 297 is inadequate to address Necrophilia because it only prohibits acts with the intent to "wound the feelings of any person, or to insult the religion of any person (as they pertain to funerals and cremations)...or to offer any indignity to any human corpse" and leaves out explicit references to sexual activity.
COUNTRIES WITH SEPARATE LAWS FOR NECROPHILIA:
UK, Canada, South Africa, and New Zealand, have such provisions to deal with necrophilia. Necrophilia is a crime under Section 70 of the Sexual Offences Act of 2003 in the United Kingdom, which makes "sexual penetration of a corpse" a crime subject to a six- to two-year prison sentence.
According to New Zealand law, anyone who abuses the dignity of a corpse—whether it is buried or not—will get a two-year imprisonment under Section 50 of The Crimes Act, 1961.
In accordance with Canadian legislation, it is likewise forbidden to defile the recently departed. According to Section 182 of The Criminal Code of Canada, 1985, "Whoever improperly or indecently interferes with or offers any indignity to a dead human body or the human remains, whether buried or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years."
WHY NECROPHILIA SHOULD BE CRIMINALISED:
There are several reasons why necrophilia is widely considered to be morally and ethically repugnant, leading to its criminalisation in many jurisdictions:
1) Consent: The fact that the deceased cannot give consent is one of the main reasons necrophilia is seen negatively. Any consenting sexual action must have consent since it assures that all participants are freely and knowingly engaging in the act. The autonomy and dignity of the deceased are violated when sexual activity is performed on them because they are dead and unable to give consent.
2) The dignity of the deceased: The widespread consensus in society is that the deceased should be handled with respect and dignity. Sexual interaction with a corpse is regarded as a desecration of the deceased's body and a violation of socially accepted guidelines for handling the dead.
3) Public Health Concern: Necrophilia can have negative effects on public health. Sexual contact with a corpse in decay exposes people to dangerous pathogens, illnesses, and infections. Making necrophilia illegal aids in discouraging the practice and safeguarding the public's health.
4) It impacts psychologically: Necrophilia is frequently regarded as a paraphilic disorder or a sign of a psychiatric disturbance. It may be a sign of a deficiency in empathy, a skewed perception of acceptable sexual behaviour, or other underlying mental health problems. Criminalization can be a tool for addressing these problems through judicial and therapeutic actions.
It's significant to note that societal attitudes and regulations governing necrophilia and other sexual offences can change over time. Necrophilia is now a crime, reflecting the culture's moral standards and commitment to upholding the dignity and rights of both the living and the dead.
RECOMMENDATIONS:
The HC of Karnataka appealed to the Centre that it should consider amending Section 377 of the IPC which deals with unnatural offences. A separate provision must be created to introduce strict penal actions against crimes against dead body. A penalty of life imprisonment up to 7 or 10 years in addition to a fine should be considered a fit punishment for offences related to necrophilia.
Further, there should be more accurate and intensified regulations in mortuaries with the installation of Close circuit cameras, maintaining hygiene and privacy and safeguarding the confidentiality of clinical data, and educating mortuary employees.
There is a need to develop or amend existing laws to explicitly criminalize necrophilia. This may involve defining necrophilia as a specific offense and establishing penalties for its commission. It should be mentioned that because the deceased is unable to continue to give consent, even with prior consent, engaging in sexual activity with them is still illegal. There is a need to promote international collaboration to address necrophilia as a criminal offense. Exchange best practices, share information, and establish mechanisms for cooperation in investigating and prosecuting cross-border cases.
CONCLUSION:
In addition to being a criminal against society, necrophilia is also a crime against humanity. Denying the fundamental right to a dignified funeral is a crime against the dead person's feelings. Despite this, the law in this area is stale and outdated. Better laws seem to be desperately needed in the nation.
To create a deterrent effect among people, the sentence specified in Section 297 for such a crime should be increased. Without laws that severely penalise such unlawful conduct, the change would be challenging to implement. The Indian rules in this area also seem unclear, demanding reforms as well as harsher punishments. It is time to revise Sections 297 and 377, or create a new punitive provision, to reflect a clear legal position on this matter with severe penalties.
To ensure that no one, not even the guardians of the cemetery, is excluded from its scope, the word "trespass" should be eliminated from Section 297. Second, the word "corpse" might be added to Section 377 along with the words "man, woman, and animal," which would surely make necrophilia subject to Section 377. We should work collectively and effectively to ensure that such gruesome crimes do not happen in a country like ours.
Authored by: Nidhi Kamath
Nirma University
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