– Rohan Mishra
INTRODUCTORY REMARK – NECROPHILIA
Ever since the Indian Penal Code, 1860 (hereinafter, “IPC”) came into play it has been celebrated widely as a great piece of penal legislation by positively testifying as the balance wheel of the society containing in itself a rich lode of progressive laws as per the growing condition of the modern-day society. In the present paper, the author tries to demonstrate the uprising trend of ‘Necrophilia’ crimes in India since the past decade. The paper also intends to analyse the lacuna in the Indian penal code to deal with the conundrum of ‘Necrophilia’ apropos, examining closely the interpretation of the different judicial pronouncements by the apex court dealing with the rights reserved for the dead in the Constitution of India.
The term ‘Necrophilia’ originates from the Greek language, Necro means ‘death’ or ‘corpse’, and the suffix- philia means ‘love’ or ‘affection’ was first coined by the Belgian psychiatrist Joseph Guislain. In general terms, Necrophilia can be simply defined as the abnormal fascination that crosses a spectrum of acts with the dead, more precisely, the individual’s desire to voluntarily indulge in sexual intercourse or sexual activities with the corpse and is also known as necromania or necrophilism.
Many researchers over the period of time tried to classify and grouped necrophilia into various categories ranging from necrophiliac fantasizers (people who fantasize sexual intercourse with the dead) to homicidal necrophiles (making sure that the body is dead before raping) and many more. The World Health Organisation has cited necrophilia under the ambit of Paraphilia (a condition that are generally characterized by abnormal sexual desires, involving dangerous activities)
UPRISING CASES IN INDIA
Since the last decade, India has witnessed copious numbers of Necrophilia cases and still, we do not have any specific penal provisions that deal with such crimes. The most prominent case came to light in the year 2006 named the ‘Nithari serial killing case’ where police arrested a rich businessman and his servant on suspicion of killing a 19 yr. old girl. After a massive investigation, it came to light that the duo was indulged in killing and having sex with the dead bodies of nearly a dozen children. During the trials, it also came to know that they used to chop and eat the body parts after cooking them. Similarly, In the case of Darbara Singh (a.k.a “baby killer”) the accused used to lure his victims using chocolates, sweets, juices, etc., then take them to a secluded place and slit their throats. In total the accused killed 17 children, mostly girls, and also tried to rape them.
It has been more than a decade since Nithari’s killing and darbara case and we’re no better in a position than earlier. It was an incident of last year in Assam when a 50-year old man was arrested for his alleged sexual intercourse with the body of a 14-year old girl. In 2018, 20-year old labor from Gurugram accused of rape admits to necrophilia to many of his victims. He confessed to the police that he “make the most of his catch” during the interrogation.
In June 2019, another shocking case appears in West Bengal when a serial killer was arrested by the police for murdering seven women and having sex with their corpses. A shopkeeper from Mumbai murders a women customer and had sex with her corpse on June 26, 2020. These are just some of the incidents, there exist many other cases which shook the human soul with their conduct and modus operandi. All these cases highlight that there has been a regular frequency in necrophilia cases over the time.
During the lethal second wave of COVID-19 in India many dead bodies were abandoned in the rivers, this raises the possibility of attracting more such heinous crimes. Thereby, it showcases the need and importance to criminalise such a ghastly act.
LACUNA IN THE PRESENT INDIAN LAWS
Professedly, the aforementioned incidents were barbaric in nature not because of the numbers of victims (or murders) involved but because of the manner and nature in which the offences were committed. Further, for the ‘offences against the dead’ IPC has very limited scope for such morally upsetting crime. The miscreants were tried under section(s) 297 and 377 of the IPC in any general case of necrophilia as there was and still is no specific provisions that profoundly punishes the act of sexual intercourse with a dead body which completely tarnished the dignity of the dead person. However, given the infinite categories of necrophilia prevalent in society, Invoking these two sections proves itself as a challenge to the authorities.
There are threefold arguments in order to observe the intricacies of present penal provisions, Firstly,Section 297 of the IPC provides for the punishment to a person for trespass on burial places which brings indignity to any human corpse or to wound the feelings of any person. Reference can be made on the defamation laws, wherein a dead person can be defamed, if the statement of the accused hurts the feelings of the family or near relative of the deceased. A plain reading of the section itself provides that its objective is to forbid the illicit trespassing on burial places keeping in view the religious sentiments as section 297 of the ‘Chapter XV’ itself suggests ‘Offences Relating to Religion’. The primary complication while invoking any case of necrophilia under this section is to suffice the essential i.e., trespassing into a burial place, which falls short on grounds in plenty of cases where no trespassing has been committed by the perpetrator. Similarly, it also does not apply where an accused killed a person merely to obtain the corpse or the crime has been committed at some other place where no trespassing occurred. There come a great many limitations with the said provisions as a person cannot be booked under the section even if they are caught in doing any of the prohibited acts in the sections. For instance, if the presence is in an official capacity, an official employee in the morgue, gateman, etc. cannot be held liable as no trespassing is done by the accused which is the very first pre-condition of the said section. The punishment for such a serious offence that impacts society at large and also violates the very basic right of dignified burial provided in the section i.e., one year of imprisonment does not have any mitigating effect on the crime.
Secondly, Section 377 of the IPC 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.”
This Section remained in a prolonged debate in so far it questions homosexual relationships. In the case of Navtej Singh johar v. Union of India, the Hon’ble Supreme Court decriminalized it to the part till it punishes for the voluntary sexual acts between two adults of whatsoever sexual orientation. In order to punish a person under this section, it becomes imperative to fulfill three essentials, which are : [i] voluntary intercourse; [ii] against the order of Nature and; [iii] with any man, woman, or animal.
A general case of necrophilia fulfills only two essentials, one of the essentials which focus on the voluntary intercourse of the act is still unrecognized in the present Indian legal system. In necrophilia cases, it is not practical to determine whether the intercourse is voluntary or involuntary. If the consent of the dead is possible to determine then it would surely fall under the offence of rape or sexual assault. However, the essential rest on the interpretation of the question of whether a dead person can give consent or not?
The other two essentials of the section are fulfilled unconditionally as it states that the intercourse must be ‘against the order of nature’. The term ‘unnatural offences’ and ‘against the order of nature’ itself is undetermined and vague as there is no objective definition but owing to the explanation of “Victorian Principle” any intercourse which does not end up in procreation is therefore unnatural and thus the cases of necrophilia very well falls under the section as it does not result in procreation. Lastly, in the third essential, according to Section 10 of the IPC which defines ‘man’ as a male human being of any age and woman denotes a ‘female’ human being of any age. After the death of a human body, it becomes quasi-subject before the law but it still remains ‘human’ even after the death of the person and thus with this argument section 377 can be invoked. However, a minor amendment is needed in this section in order to bypass the irregularity in the provision, so it can well assimilate the offence of necrophilia within it.
Lastly, Section 511 of the IPC punishes an attempt to commit an offence. The argument advance as discussed in the case of R v. Cheesman Elaborates further as to how necrophilia cases fall under this section, any attempt to commit a crime is an act done with the intent to commit that crime and forming part of a series of acts which constitute its actual commission if it were not interrupted. The degree of moral guilt of the offender in case of attempt is the same as if he had succeeded. The primary essential of this section is the mens rea to commit the offence. Therefore, If rape is committed on a dead body, the person who commits rape would be guilty for his mens rea because if the victim was alive it would fall under the offence of rape.
DIGNITY OF DEAD UNDER THE INDIAN CONSTITUTION
Now, putting emphasis on the most striking question vis-à-vis the legal status of a dead body juxtaposed with the right reserved for the dead in the Indian Constitution? The answer is quite non-satisfactory in the present legal jurisprudence in India. Although, there have been a plethora of judicial pronouncements over a considerable length of time that maintained and respected the dignity of the dead person as a right conferred underArticle 21 of the constitution. In the case of Paramananda Kataria v. UOI.,It was held that “Article 21 of the Constitution casts the obligation on the State to preserve life and it extends not only to living but also to his dead body”. It was reiterated in the case of Singh Mujeeb v. State of U.P and Ors., that under the ambit of article 21 the word “person” ensures the right to live with dignity extends to his dead body also. Further in the case of Amrutha v. The commissioner., the court observed that “even dead persons have got a right of privacy and their souls should not be disturbed, as they have immortal life after their death”
As per the international framework, human dignity holds the core value of human rights laws, The UN Commission on Human rightsadopted a resolution in 2005, that underlined the importance of dignified handling of human remains, including their proper management of disposal as well as respect for the needs of the families. It makes the state binding to enact such laws in order to fulfill the international obligations.
Many countries all over the world noticed and expressly penalized this grave offence to a great extent. Though the penal provision in India is ambiguous and insufficient to punish such bizarre acts. There is a dire need to introduce amendments in the IPC as the present provisions do not have any mitigating effect in the crime and to effectively deal with the cases of Necrophilia and protect the societal interest along with law and order. The whole criminal jurisprudence takes no notice of the dead and the status of the dead body remains in a very peculiar position. Therefore, it is the need of the hour for the legislature to take cognizance of this serious crime against the society at large.
[The author is a 3rd year, B.A. LL.B (Hons.) student at Guru Gobind Singh Indraprastha University.]