The Urgent Need to Bridge Legal Gaps to Penalize Necrophilia in India : Addressing a Void

Addressing a Void-The Urgent Need to Bridge Legal Gaps to Penalize Necrophilia in India

Author: Stuti Narayan

Introduction

Necrophilia, the act of engaging in sexual intercourse with a corpse, is a heinous crime that violates the dignity of the deceased and shocks the conscience of society.[1] Despite its abhorrent nature, India does not have any specific provision under the Indian Penal Code (IPC) to punish this offense. This glaring lacuna in the law has led to several instances where perpetrators of necrophilia have escaped punishment or received inadequate sentences. This article aims to highlight the urgent need for legal reform in India to penalize necrophilia, drawing upon supporting case laws and provisions from other jurisdictions.

The Current Legal Scenario in India

In recent years, India has witnessed a disturbing rise in cases of necrophilia. One of the most infamous cases was the Nithari serial killings in 2006, where a businessman and his servant were found guilty of killing and sexually assaulting the corpses of nearly a dozen children. Another chilling case involved Darbara Singh, also known as the “baby killer,” who murdered 17 children and attempted to rape their dead bodies.[2]

Despite the gruesome nature of these crimes, the IPC does not list necrophilia as a specific offense under its sexual offenses provisions. In general cases of necrophilia, the accused are tried under Sections 297 and 377 of the IPC, which deal with trespassing on burial places and unnatural offenses, respectively. However, these provisions are inadequate to address the unique nature of necrophilia and often prove challenging for authorities to invoke.

The Current Legal Framework: Section 375 & 377 Indian Penal Code

Section 375: Definition of Rape

Section 375 of the IPC defines rape as a criminal offense involving forced sexual intercourse without the consent of the victim. However, this provision does not address the act of engaging in sexual intercourse with a dead body, leaving a significant gap in the legal framework to penalize necrophilia.[3]

Section 377: Unnatural Offenses

Section 377 of the IPC addresses unnatural offenses, defining them as voluntarily engaging in carnal intercourse against the order of nature with any man, woman, or animal. While this provision might appear to cover necrophilia, it does not explicitly include the term ‘dead body,’ leading to a lack of clarity and a loophole that allows offenders to escape punishment.[4]

The Karnataka High Court’s Ruling and Recommendations

In a landmark judgment on May 30, the Karnataka High Court held that having sexual intercourse with a woman’s dead body would not attract the offense of rape under Section 376 of the IPC, as there is no provision in the code for it. While upholding the trial court’s decision to convict and sentence the accused to life imprisonment for murder under Section 302 of the IPC, the high court acquitted him under Section 376 for “raping” the victim’s dead body.

Recognizing the need for legal reform, the Karnataka High Court recommended that the Central government amend the provisions of Section 377 of the IPC to include dead bodies or introduce a separate penal provision to criminalize necrophilia with life imprisonment up to 10 years and a fine. The court’s recommendations underscore the urgent need for India to address this legal lacuna and protect the dignity of the deceased.[5]

Comparative Analysis: Necrophilia Laws in Other Jurisdictions

The United Kingdom’s Sexual Offences Act, 2003, serves as an example of a jurisdiction that has explicitly criminalized necrophilia. Under Section 70 of the Act, “sexual penetration of a corpse” is an offense punishable with six months to two years imprisonment. Similarly, countries like Canada, New Zealand, and South Africa have also prohibited necrophilia under their respective laws.

These jurisdictions recognize the gravity of necrophilia as a crime against the deceased and society at large and have enacted specific provisions to punish such acts. India can draw upon these examples to frame its own legislation to effectively deal with cases of necrophilia and protect societal interests and law and order.

Proposed Amendments to the IPC

The absence of specific provisions to penalize necrophilia in India is a glaring oversight that needs immediate attention. The dignity and rights of the deceased must be protected, as emphasized by the National Human Rights Commission’s advisory on “Upholding the Dignity and Protecting the Rights of the Dead.” Furthermore, the right to dignity and fair treatment under Article 21 of the Indian Constitution should extend not only to living individuals but also to their bodies after death

In light of the aforementioned arguments and comparative analysis, it is evident that there is a dire need for India to introduce amendments to the IPC to penalize necrophilia. The following are some proposed changes that could be made to the existing provisions:

1. Amend Section 377 of the IPC to include sexual intercourse with a dead body as an unnatural offense, punishable with life imprisonment up to 10 years and a fine.

2. Introduce a new provision specifically criminalizing necrophilia, outlining the various categories of the offense and prescribing appropriate punishments based on the severity of the crime.

3. Expand the scope of Section 297 of the IPC to cover cases where no trespassing has been committed by the perpetrator, such as instances where the accused is an official employee in a morgue or a gateman.

4. Amend Section 511 of the IPC to include attempts to commit necrophilia as a punishable offense, recognizing the moral guilt of the offender even if they do not succeed in committing the crime.

Conclusion

The rising trend of necrophilia crimes in India, coupled with the inadequacy of the current legal provisions to address this issue, calls for immediate action from the legislature. By amending the IPC and introducing specific provisions to penalize necrophilia, India can ensure that the dignity of the deceased is protected and that perpetrators of this heinous crime are brought to justice. It is high time for India to join other progressive nations in recognizing and punishing necrophilia as the grave offense that it is.

References

^[1] Indian Penal Code, 1860.

^[2] The Indian Express, https://indianexpress.com/article/explained/explained-law/what-is-necrophilia-and-is-it-an-offence-in-india-8644222/ (last visited June 13, 2023).

^[3] Indian Penal Code, 1860, § 375.

^[4] Indian Penal Code, 1860, § 377.

^[5] Ranjaraju v. State of Karnataka, 2023 SCC OnLine Kar 23.

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[1] APA Dictionary of Psychology, https://dictionary.apa.org/necrophilia (last visited June 14, 2023).

[2]The Indian Express, https://indianexpress.com/article/explained/explained-law/what-is-necrophilia-and-is-it-an-offence-in-india-8644222/ (last visited June 13, 2023).

[3]Indian Penal Code, 1860, § 375.

[4]Indian Penal Code, 1860, § 377.

[5]Ranjaraju v. State of Karnataka, 2023 SCC OnLine Kar 23.