It is time to amend section 377 of the IPC to criminalize Necrophilism: Karnataka High Court.

Necrophilism is sexual attraction to dead bodies. Legally, it is treated as unnatural sex act and classified under Section 377 of the IPC. There is no provision to cover the offence under Indian law to cover the offence, judges bank either on Section 377 IPC (unnatural offences) or Section 297 IPC (trespassing the burial ground), however it does not still cover the offence. The Karnataka High Court mandated recently that all public and private hospitals in the state have CCTV cameras placed in their mortuaries to stop “offences against the dead bodies of women.” The Karnataka government has been given six months to fulfil the instructions.

The Karnataka High Court division bench stated during the hearing of a murder and necrophilia (an act of engaging in sexual activity with a deceased person) case: “It is brought to our notice that in most government and private hospitals where the dead bodies, especially those of young women, are kept in the mortuary, the attendant who is appointed to guard them has sexual intercourse with the dead body.”

Thus, the court issued guidelines to the state government regarding mortuaries.

• Background of the news

In the present case before the division bench, the accused committed murder of the prosecutrix, and thereafter accused sexually assaulted the dead body of the prosecutrix. Session court find the accused guilty of murder and rape. The appellant filed the appeal on the ground that the present matter is a case of necrophilia and there is no provision for under Indian law punishing the act of necrophilia.

• The issues before the court

In the present case, the bench was dealing with two issues whether the accused is guilty of murder and rape charges under sections 302 and 376 of the Indian Penal Code respectively.

• Law points under discussion

As it is well established that the accused murdered the prosecutrix the only legal question that arises for consideration was whether sexual intercourse on the dead body of a woman amounts to rape, in the provision of section 376 of the Indian Penal Code?

• The ratio of the decision

1. Section 375 of IPC defines “Rape on a woman” The term women as defined under section 10 includes a female human being of any age, by the combined reading of both sections it can be constructed that a dead body cannot be called a “woman” for the purpose of section 375. The Application of section 377 could be denied on the same reasoning.
2. Moreover, rape must be accomplished with a person, not a dead body. Rape must be committed on women “against her will”. A dead body cannot consent to rape, neither it can be in fear of immediate and unlawful bodily injury.
3. The essentials ingredient for the guilt of rape consist of the outrage of the person and the feelings of the victim of rape. A dead body has no feeling of outrage.

Considering the abovementioned points the court held that the intercourse on a dead body is nothing but necrophilia.

 The right to dignity and Fair treatment under Article 21 of the Constitution of India for dead bodies and rights of dead persons

 The right to a life with dignity is now clearly included in the right to life guaranteed under Article 21 of the Indian Constitution. Living with dignity entails maintaining a person’s dignity both while living and after they pass away. By Article 21 of the Indian Constitution, a person’s mortal remains after death also have the right to dignity and fair treatment.

• Provision of IPC protecting the rights of Dead Person

The provision of IPC contemplates the right of a deceased person against the trespass of burial sites or places of funeral rights under section 297 of IPC. Right against dishonest misappropriation and conversion of property as provided under section 404 of IPC. The right against defamation is provided in section 499 of the IPC and the right against criminal intimidation is provided under section 503 of the IPC, 1860.

• Case law on the issue

 In Pt. Parmanand Katara, Advocate vs. Union of India & Anr., (1995) 3 SCC 248, it was held by the Supreme Court that both a live man and his dead body have the right to dignity. In that instance, the petitioner had argued that the Punjab Jail Manual’s hanging method of carrying out death sentences was cruel and in violation of Article 21 of the Constitution of India.

The petitioner claimed that the Jail Manual’s provision that a condemned convict’s body be left hanging for a half-hour following hanging violated their right to dignity. The High Court upheld the petitioner’s argument that the suspension of the corpse for 30 minutes after death constituted a breach of his right to dignity but rejected the petitioner’s objection to the hanging mode of execution.

 A petition was filed in Vikash Chandra @ Guddu Baba Vs. The Union of India & Ors. 2008 SCC OnLine Pat 905 over the dishonourable way Patna Medical College & Hospital disposed of deceased bodies. It was said that the dead bodies were dumped into the Ganges without even closing the wounds from the post-mortem procedure. The Patna High Court ruled that the hospital staff and state officials must dispose of unclaimed and unidentified dead bodies in accordance with the law and with the utmost respect for the deceased. If the identity of the deceased can be verified, final rites must be performed in accordance with the deceased’s known religion.

In Common Cause Vs. Union of India, 2018 SCC OnLine SC 208 a Constitution Bench of the Hon. Supreme Court addressed the question of euthanasia and paved the way for the recognition of the constitutional right to a dignified death. It was noted that the right to a dignified death is a crucial component of the right to a dignified life.

The  Judges discussed the case of a man who was in a chronic vegetative condition and was approaching death when they noted that his natural death process had already started and that he had the right to die peacefully since it was impending and inevitable. The Court determined that the right to pass away in dignity constitutes a Fundamental Right and is therefore a crucial component of Article 21.

In Paramanand kataria vs. Union of India, (1989) 4 SCC 289 it was recognized that article 21 provides the right to life, fair treatment, and dignity, and these rights extend not only to the person but also to their dead bodies. 

• Observations of the Court and Directions of the Court

Despite no offence could be formed under section 375, the court discuss the issue of the dignity of the dead body of a human being. The court observed that the right to dignity as provided under Article 21 of the Indian constitution is also extended to a dead person.

Regarding the need to amend section 377 of the IPC, the bench observed “It is high time for the Union government, in order to maintain the right to dignity of the dead person/woman, to amend the provisions of Section 377 of the IPC to include the dead body of any man, woman or animal or to introduce a separate provision as an offence against dead woman as necrophilia or sadism” as has been done in other countries to ensure the dignity of the dead person including a woman”

There is currently no explicit statute in India that makes necrophilia a criminal, according to the High Court division bench of Justices B Veerappa and Venkatesh Naik.

In light of this, the state government has been instructed as follows by the high court:

• Within six months of the date of the decree, the state government should guarantee that CCTV cameras are installed in all public and private hospitals’ mortuaries to deter crimes against women’s corpses.
• In order to preserve the dead in a suitable, clean atmosphere, the government should make sure that mortuary hygiene is maintained by routine mopping and cleaning of the mortuary.
• Every public and private hospital should uphold the confidentiality of clinical records and have a system developed to protect information about the deceased, particularly in situations that are stigmatized and subject to societal criticism, like HIV and suicidal patients.
• The general public and tourists should not be able to see the post-mortem chamber directly.
• Staff at both public and private hospitals have to be educated on how to manage a dead corpse and interact sensitively with the deceased’s companions.

International Perspective on the Issue of Necrophilia  

Necrophilia, the sexual activity with a deceased person, is illegal in most jurisdictions worldwide. While specific laws may vary between countries, there are international legal frameworks that address the issue of sexual crimes and human rights violations.

Geneva Convention (1984) Rule 113 (Singh, A. (2023, June 30). Understanding Necrophilia and The Issues Surrounded With It. – The Amikus Qriae. The Amikus Qriae) states that “all possible measures must be taken to prevent a dead body from being despoiled. It prevents Necrophilia. The international convention aims to give every human body equal respect, rights, and privacy, irrespective of whether it is living or dead. A resolution was passed by the United Nations Human Rights Commission in 2005 to preserve the dignity of dead bodies and prevent the mutilation of dead bodies”.

National Laws: Each country has its legal system, and the specifics of necrophilia laws may vary. Many countries have specific legislation that criminalizes Necrophilia, often categorized under sexual offences, desecration of corpses, or similar statutes. Penalties for engaging in Necrophilia can range from fines to imprisonment, depending on the jurisdiction. Here, we review the laws of different jurisdictions.

In the United Kingdom (Participation, E. (n.d.-b). Sexual Offences Act 2003), sexually penetrating a dead body is illegal under Section 70 of the Sexual Offences Act 2003 and is punishable by up to two years in jail. However, records show that, as of right now, no cases have been brought against anyone for such an offence. There are no federal laws against Necrophilia in the United States (T. Ochoa T and Jones C, “Defiling the Dead: Necrophilia and the Law, 18 Whittier L. Rev.539); instead, it is up to each state to make laws in this area. For instance, Florida in the United States of America punishes Necrophilia as a second-degree felony, Arizona punishes it as a class 4 felony, Hawaii punishes it as a misdemeanor, and Alaska punishes it as a class A misdemeanor. Similarly, various American states have their laws against Necrophilia. France is one of the rare countries to allow Necrogamy. When a live person marries a deceased person, the union is known as a posthumous marriage or necrogamy. Article 171 of their Civil Code declares this practice to be legitimate. Necrophilia is not directly punished in the New Zealand penal code; however, under Section 150 of the New Zealand Crimes Act, 1961, “Misconduct in respect of human remains” carries a sentence of up to two years in jail. Section 182 of the Criminal Code of Canada, 1985 makes Necrophilia a punishable offence. In South Africa, Section 14 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 prohibits Necrophilia.