On 4th February, the Supreme Court junked a plea from the Karnataka government contesting a ruling of the Karnataka High Court that did not classify necrophilia as rape under Section 375 of the now-shelved Indian Penal Code (IPC). The apex court pronounced that it could not overrule the high court’s decision to partially acquit the accused who had sex with the woman’s body after killing her. The high court verdict cleared him of rape charges for having sex with the corpse but maintained the conviction for murder.
Afterwards, a Special Leave Petition (SPL) was submitted by the Karnataka government. According to a bench of Justices Sudhanshu Dhulia and Ahsanuddin Amanullah, however, the parliament should look into the matter and, if required, amend the law. They further added that the state could provide the parliament with the requisite representation if it desired appropriate revisions.
Aman Panwar, the Additional Advocate General of Karnataka, contended on behalf of the state that the word “body” in Section 375(c) should be interpreted to include a deceased as well. It was also argued that a dead body, which is incapable of communicating assent, should be included in the offence’s scope. He further emphasized that a circumstance in which a woman is unable to express her agreement will be deemed rape under the seventh description of the crime, which encompasses situations in which a female is unable to offer consent. Therefore, the corpse would not be able to agree in the present case either.
The counsel relied on the 1995 judgment of the Supreme Court in Paramanand Katara v. Union of India, which mentioned that deceased individuals should also be treated fairly and with dignity. It was submitted that similar criminal statutes have been extended by courts of other nations including the Supreme Court of Tennessee in State v. Brobeck, to add dead bodies within the scope of rape. The bench, however, declined to entertain the submission. It stated that necrophilia is not an offence under the IPC. It further highlighted that the decision was legally sound and refused to intervene.
Karnataka High Court’s observations
Karnataka High Court bench consisting of Justices B Veerappa and Venkatesh Naik T in 2023 decided that sexual assault against a woman’s corpse does not qualify as rape, which is punished under Section 376 of the Indian Penal Code. As a result, it absolved a man, resident of Golagenahalli of Sira taluk in the Tumakuru district of rape charges for killing a 21-year-old girl and then sexually assaulting her dead body. The trial court’s decision to incriminate him under the clause was partly quashed by the bench.
He was found guilty of both murder and rape by the trial court, but, in the high court decided that necrophilia was not considered an unnatural offense or a form of rape. “A careful reading of the provisions of Sections 375 and 377 of the Indian Penal Code make it clear that, the dead body cannot be called as human or person. Thereby, the provisions of sections 375 or 377 of the Indian Penal Code would not attract. Therefore, there is no offence committed punishable under Section 376 of the Indian Penal Code,” it explained.
According to the bench, performing intercourse on a corpse is simply necrophilia (the erotic attraction to dead bodies). “Utmost it can be considered as sadism, necrophilia and there is no offence made out to punish under Section 376 of the Indian Penal Code,” it asserted. The court reasoned that necrophilia is a “psychosexual disorder” that falls within the category of “paraphilias” in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), which also includes sexual masochism, paedophilia and exhibitionism. The perpetrator was found not guilty of rape, but the court also noted that a law against necrophilia must be passed by Parliament.
The government, on the other hand, was instructed by the bench to install CCTV cameras in all government and private hospital mortuaries within six months to prevent crimes against dead bodies, especially those of women. It also asked the government to ensure that sure mortuaries are kept clean on a regular basis to protect the dignity of the deceased and to raise awareness among mortuary staff about the importance of handling deceased people with care.
“The postmortem room should not come under the direct line of sight of the general public/visitors for maintaining privacy and mortuaries should have all basic infrastructure as per the Indian Public Health Standard guidelines for the district hospitals for management of the dead bodies,” the court ordered.
The court observed, “It is brought to our notice that most of the government and private hospitals where the dead bodies, especially young woman kept in mortuary the attendant who appointed to guard, have sexual intercourse on the dead body. Thereby it is high time for the state government to ensure such crime should not happen, thereby maintaining dignity of the dead body of the woman. Unfortunately in India no specific legislation enacted including under the provisions of Indian Penal Code for the purpose of upholding dignity and protecting rights and crime against the dead body of the woman.”
It further declared, “It is high time for the central government in order to maintain right to dignity of the dead person/woman to amend the provisions of Section 377 of IPC should include dead body of any men, woman or animal or to introduce a separate provision as offence against dead woman as necrophilia or sadism as has been done in United Kingdom, Canada, New Zealand and South Africa, to ensure dignity of the dead person including woman.”
The Karnataka government had appealed against the acquittal for the rape violation to the Supreme Court.
Similar remarks by the Chhattisgarh High Court
The Chhattisgarh High Court last year proclaimed that although having sex with a deceased person is one of the most awful acts, it is not covered by Section 376 of the Indian Penal Code (IPC) or the Protection of Children from Sexual Offences (POCSO) Act. The act does not fit the legal definition of rape as stated in these laws, according to a bench of Chief Justice Ramesh Sinha and Justice Bibhu Dutta Guru. “Such provisions apply only when the victim is alive,” it eloborated.
The court made the statement while maintaining the acquittal of Neelkanth Neelu Nagesh who had a case against him for raping a minor’s dead body. He was deemed culpable of other crimes. “There is no doubt that the offence committed by the accused, Neelkanth Neelu Nagesh, i.e., raping a dead body is one of the most horrendous crimes one can think of. But the fact is that, as of now, the accused cannot be convicted for the offences punishable under Sections 363, 376 (3) of the IPC, Section 6 of the POCSO Act, 2012, and Section 3(2)(v) of the Act of 1989, as the offence of rape was committed with a dead body. For convicting an offence under the aforementioned Sections, the victim should be alive,” it pointed out.
The court is considered the pleas of two men who were charged in a case involving the kidnapping, rape and murder of an underage who was abused even after she passed away. Neelkanth Neelu Nagesh and Nitin Yadav, the defendants, were proven guilty of multiple offenses under the IPC and the POCSO Act. Nagesh was convicted under Section 201 (causing disappearance of evidence) and Section 34 (acts done by several persons with a common intention), earning a seven-year prison sentence, while Yadav was determined guilty of rape, kidnapping and murder, resulting in a life imprisonment.
The court reaffirmed the verdicts and sentences of both individuals after evaluating the arguments, evidence and concluding that the prosecution had established their guilt beyond a reasonable doubt. Nagesh contested his conviction, arguing that he had made sexual contact with the minor’s dead body. However, he was exonerated of rape under the POCSO Act and the IPC in the trial court. The prosecution countered that although sexual interaction with a deceased person is not considered “rape” under Section 376 of the Indian Penal Code, Article 21 of the Constitution protects the right to die with dignity, which includes the proper handling of a corpse.
“The learned trial court has erred in law by acknowledging the fundamental truth that necrophilia constitutes a flagrant infringement upon the rights of the deceased, who are entitled to a dignified funeral,” it stressed. The court, however, disagreed and mentioned that Nagesh could not be charged with rape under the law.
“There can be no disagreement that dignity and fair treatment are not only available to a living person but also extend to their dead body. Every dead body is entitled to respectful treatment, but the law must be applied to the facts of the case. None of the offences sought by the learned counsel for the objector can be imposed upon the appellant, Neelkanth @ Neelu Nagesh,” it stated.
The plea contesting his acquittal on the rape charge was turned down by the court, which conveyed, “Since we have already concurred with the reasons and findings of the learned trial Court, we are not inclined to allow the acquittal appeal filed by the mother of the victim, therefore, it also stands dismissed.”
Laws against Necrophilia: India vs other countries
The legal structure that deals with necrophilia in the country akin to other parts of the world, is mostly derived from general criminal laws and regulations that uphold the sanctity of the human body and dignity. The Bharatiya Nyaya Sanhita (BNS) 2023, which succeeded the Indian Penal Code of 1860, imposed by the Britishers, does not in particular define or make necrophilia a crime in and of itself.
One such clause concerns trespassing on grave sites and is found in Section 301 of the Bharatiya Nyaya Sanhita which only applies if necrophilia is committed after the deceased person has been buried and not if necrophilia is committed in a mortuary or any other location outside a cemetery. Furthermore, it fails to specifically tackle necrophilia or other sadistic acts against the dead corpse and focuses on protecting burial sites and maintaining the sanctity of the person’s final resting place.
While the now struck down Section 377 of the Indian Penal Code prescribed crimes for unnatural sexual offences, such as willfully having sexual relations with a man, woman or animal that goes against the natural order, there was no specific mention of necrophilia. As this law solely applied to living things, the issue of necrophilia was not addressed. Similarly, the interpretations of important provisions against rape like Sections 375 and 376 only apply to living women, consequently, dead bodies are not included.
Notably, while the Supreme Court struck down the entire section 377 to decriminalise gay sex, it created new problems, as there was no other section in the IPC to cover sexual crimes against men and other such unnatural sexual crimes. When the BNS was created to replace IPC, the new law also didn’t include any provision for punishing unnatural crimes, including rape of dead bodies.
Several skeletons were found in the village of Nithari in Moninder Singh Pandher and Surendra Koli v. State of Uttar Pradesh. The infamous case had sent shockwave across India. Moninder, a wealthy and politically connected businessman, and his servant Surendra Koli were arrested by Delhi police on suspicion of raping, killing and having sex with the bodies of women and children. The Central Bureau of Investigation (CBI), however, found it challenging to prosecute them for necrophilia because it lacked specific laws, even though they were charged under several sections of the penal code.
Human rights principles, cultural values and differing legal standards among jurisdictions serve as the main sources of information for the international legal framework around the crime of necrophilia which is regarded as a breach of the deceased’s dignity. It can be addressed through a variety of legal frameworks and instruments, despite the fact that it is neither uniformly defined nor explicitly criminalized in international law.
According to Article 130 of the fourth Geneva Convention, the departed shall be buried with dignity, ideally in accordance with their religious customs, and their graves must always be revered, kept in good condition and marked so that they are easily identifiable. United Nations Inter Agency Standing Committee’s Operational Guidelines on Human Rights and Natural Disasters titled, “dealing with mortal remains,” further safeguards the rights and dignity of the deceased. The mortal remains of the deceased should be gathered and recognized, based on Article 6.1, to allow their return to the next of kin and to stop destruction or mutilation.
According to Article 6.2, to enable future identification and return to the family, interim storage or burial should be given priority over cremation if the remains cannot be returned. Article 6.3 highlights the need of adhering to local religious and cultural traditions while disposing of bodies, ensuring that the procedure respects the privacy and dignity of the departed as well as their loved ones. Additionally, according to Article 6.4, family members should be able to retrieve the remains for cremation or reburial in accordance with their cultural and religious norms.
Necrophilia is particularly addressed by the Sexual Offences Act 2003 in the United Kingdom. This law, which recognizes the need to preserve social moral norms and preserve the dignity of the deceased, makes sexual acts with them illegal. It is strictly illegal to have sex with a corpse,per Section 70 of the Sexual Offences Act 2003. According to the law, “sexual activity” encompasses a wide range of sexual behaviors. The conduct is regarded as a violation, and individuals found guilty face a maximum sentence of two years in prison.
Since there is no federal law officially regulating necrophilia, the situation varies greatly from state to state in the United States. Necrophilia laws in the United States are set at the state level. Necrophilia and similar behaviors are expressly illegal under the laws of many states. For instance, necrophilia is illegal in Washington according to chapter 9A, section 44.105 of the Revised Code of Washington. Necrophilia is expressly illegal in Nevada, as stated in Nevada Revised Statutes, Chapter 201, Section 450. Although the exact wording of the laws may differ, they usually forbid performing sexual acts with human remains.
Sexual activity with a corpse is forbidden by Section 14 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007. Without explicitly employing the terms necrophilia, penetration, or any other sex-oriented terms, the Criminal Code of Canada, 1985, deems necrophilia to be unlawful. “Whoever behaves indecently or improperly or offers any indignity to the dead body or its remains is guilty of the offence and is liable to the punishment of imprisonment for a term not exceeding five years,” according to section 182 of Part V of the statute.
New Zealand terms necrophilia as “Misconduct in respect of human remains” under Section 150 of the New Zealand Crimes Act, 1961. Each Australian state has its own laws governing the penalties for necrophilia, which is a criminal offense. For example, misbehavior involving corpses is covered by Section 81C of the Crimes Act 1900 in New South Wales. This implies that necrophilia is covered by specific laws in some nations. Likewise, the act of sexually penetrating a corpse is a criminal offense, even though it is not particularly dubbed as “necrophilia” in most legal codes. Necrophilia is unlawful in all European countries and falls under laws against desecration of corpses or grave robbing. Penalties vary by jurisdiction but usually involve incarceration.
Social and moral facets of Necrophilia
The Greek word “Nekros” or “Necr” means or refers to a corpse or dead, while the Greek word “Philia” indicates love or attraction. When combined, these two words create the word “Necrophilia,” which is defined as an unhealthy, unnatural obsession with death and the dead. Necrophilia is surrounded in taboo and stigma and hence it is critical to address the issue with tact, senstivity and with an understanding of the complexities around the subject. It is seen as morally wrong.
The majority of societies view it as a flagrant transgression of respect for the deceased and human dignity. It is considered a grave violation and an insult to the core values of human morality to sexualize a dead body. The viewpoint is supported by several religious and cultural beliefs that regard the body as a temple or precious vessel that deserves respect, especially after death.
Necrophilia raises similarly complicated ethical issues. The infringement of bodily autonomy is the main concern. Sexual activity cannot be consented to by a deceased and hence such actions without permission is an extreme violation of personal boundaries. Moreover, necrophilia entails taking advantage of a vulnerable and helpless person which points out to abuse of authority and power.
A critical ethical factor is the psychological and emotional toll that necrophilia takes on people who are directly or indirectly impacted. Several cultural practices incorporate ritualistic washing or caring for the body after death. These customs are carried out with respect and attention as well as have profound spiritual meaning. Different societies have distinct ways of honouring, celebrating and preparing their deceased for the afterlife or per their belief systems. However, when the dead are desecrated, their relatives and loved ones experience severe emotional anguish and trauma.
Necrophilia has considerable legal ramifications as well. It is illegal in the majority of jurisdictions, which reflects society’s moral disapproval of the practice. Laws prohibiting necrophilia are intended to preserve the honor and integrity of the dead and discourage others from partaking in such harmful conduct. The perpetrators are also shunned by society and are condemned to spend their lives either behind bars or in isolation.
Conclusion
The practice of necrophilia is reprehensible and ought to be handled as such. It not only violates the deceased but also defies all legal, social and cultural norms, causing great sorrow to those who are affected. Necrophilia could be classified as a “psychosexual disorder,” but so does pedophilia and crimes against children are considered very critical and are treated with stern laws in the civilised socities. Hence, necrophilia can not be an exception and deserves equal attention of both the executive and the judiciary.
