Table of contents
Introduction
We frequently hear the phrase "We are safe once we die," like in "Ab to marne k baad hi suraksit hongey." But what if things change and you discover that you are not even protected after death? Sounds dubious, doesn't it?
Let us discuss the problem in greater detail. When we learned about the sexual event, our hearts broke. We feel awful for the victim, we worry about her agony, we ponder about rights and laws, and so on, since the rape was committed by a living monster against a living person. But what about the deceased? Does that make sense? What if you learn of a case in which individuals are suspected of committing rape with the dead? Sounds inhuman right?
Today, in the following article, we'll go over this horrible act or, as experts argue, psychological disorder in depth. We are all aware that the Indian legislature has developed new laws throughout time based on the basic evolution of scenarios. The necessity for a law revision or a new legislation is only realised when one or more instances arise in India's legal system. One of these traits is the 'Necrophilia' instances, for which there is a growing demand for legal solutions.
The odd behaviour of necrophilia, which refers to a person's attraction to a corpse sexually, is little to no recognised in the majority of nations. A Necrophiliac is someone who actively engages in such action, in which the act between the person and the corpse is generally motivated by a desire for sensual pleasures. Necrophilia takes its name from the Greek words necro, which means "the dead or death," and philia, which means "love or attraction." In layman's terms, the term Necrophilia simply refers to an act of love with the dead. A Necrophiliac engages in such acts with knowledge of them and the ability to do so voluntarily.
For a long time, India has seen an increase in reports of sexual attacks on corpses, but it still lacks explicit legislation to ban such actions. Because of this potential loophole, wherein the state of Indian judiciary isn't expected to be much developed and advanced enough to voluntarily take the initiative to cover-up the loophole that has been created over the ages, if any person is convicted of being a part of a Necrophiliac activity, there aren't adequate measures to counter it. In most situations, the guilty now receives a clean chit after only a few years following the occurrence.
When these types of incidents were brought to the attention of the Indian press and judicial systems, many psychologists and eminent personalities were of the opinion that the act of Necrophilia is primarily motivated by the possibility of insanity of mind, and that any person with sanity of mind would never engage in such acts. In many circumstances, such activities reflect the wrongdoer's character of bestiality, wrath, or graveness, when the sexual act is performed in the full sense and sanity of the mind, with a voluntary interest. As a result, when such crimes are discovered, the wrongdoers should not be permitted to claim insanity of mind as a defence and should be punished with an amount of penalty proportionate to the gravity of the offence.
Necrophilia is more than just the tendency or inclination of a person to commit a sexual offence with the dead. One aspect of necrophiliac inclinations is the person's romantic character, in which he or she appears to be so possessive that they refuse to accept the reality that their loved ones are no longer living in the current world and have left along the path of death.
In the last decade, India has seen an increase in incidences of necrophilia, not just in locations like mortuaries, but also in situations where individuals are digging up buried corpses and even murdering other people for raping their body.
Classification of necrophilia
In 1989, Jonathan P. Rosman and Phillip J. Resnick described two types of Necrophilia. The first is "genuine necrophilia," which is characterised by a strong sexual attraction to corpses. The second condition is "pseudo-necrophilia," which is defined by a transitory sexual attraction to corpses rather than a lifelong erotic preference for them.
Anil Aggrawal's "A new classification of necrophilia" was published in 2008. In the paper, he stated that there are at least 10 different types of necrophiliacs. The following is a brief summary of the three types of necrophiles:
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Homicidal necrophiles
These necrophiles are the most hazardous necrophiles of all. Homicidal necrophiles murder living people in order to establish sexual relationships with them. Because the sexual action is performed on the deceased's fresh body, such events are sometimes referred to as "warm necrophilia."
Homicidal necrophilia includes sadism and desire. A well-known example is the case of American serial murderer Jeffrey Dahmer. He was awoken by the preserved body bits of his victims. He was also said to be awoken by the carcasses of dead animals.
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Regular necrophiles
Even if they have the option of having sexual relations with the living, this sort of necrophile chooses to have relations with the dead. Even if they could, they prefer not to have sex with living people.
People who steal dead remains from mortuaries and cemeteries are included. This does not include a graveyard attendant who had sex with the dead since he had easy access to a dead body. He would also fall into this category if he wanted to have sex with the dead while having intercourse with the living. Regular necrophiles can have relations with the living, but it does not modify their choice.
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Romantic necrophiliacs
These necrophiles have modest necrophilic tendencies and are unable to accept the loss of a loved one. They generally mummify their loved ones' bodies while continuing to have sexual intercourse with them. This tendency is generally transient, but it might endure for years or even decades. The majority of necrophiles suffer from mental problems and require psychiatric therapy.
Legal status of a Dead Body
There have always been two opposing opinions throughout history. One side contends that, by legal fiction, a deceased persons preserves their legal existence as a person. Some contend, on the other hand, that a deceased person is merely an item, a lifeless corpse. The disagreeable argument over necrophilia stems from this misunderstanding of the idea of personhood. While people close to the departed may still see them as significant persons, others see them as lifeless, robbing them of their identity.
In terms of the legal status of a dead corpse in India, it is present in the Indian Criminal Justice System in a hazy manner. Despite the fact that judicial procurements have established the right to dignity of a dead body, which is protected under Article 21 of the Constitution, the legal status of a dead body remains undefined.
Article 21 of the Indian Constitution ensures that everyone's right to life and liberty is protected. In Paramanand Kataria, Advocate v. Union of India & Others (1995), the Supreme Court of India implied that the protection of the right to life and dignity extended not only to living people but also to the deceased. In Ramji Singh Mujeeb Bhai v. State of Uttar Pradesh and Others (2009), the Supreme Court decided that the word "Person" in Article 21 assures a person's right to live with dignity also applies to his deceased corpse, which should be treated with the respect he would have earned if he had been alive.
Recently, Justice Prafulla Chandra Pant, Acting Chairperson of the National Human Rights Commission (NHRC), recommended that legislation be enacted to protect the dignity of a dead body, observing that the protection of the rights of dead bodies stems from the recognition that the right to life, fair treatment, and dignity, derived from Article 21 of the Indian Constitution, extends not only to living persons but also to their dead bodies. The state must defend the rights of the deceased and prohibit criminality over the dead corpse in both natural and unnatural deaths. However, in situations of Necrophilia, Indian criminal laws have turned a blind eye to the dignity of a dead corpse. Despite court pronouncements and guidance made by authorities, the State has failed to adopt a particular provision under the Indian Penal Code that is consistent with the Indian Constitution to prohibit abuses of a person's right to dignity.
Legislations in India regarding Necrophilia
The renowned history of Necrophilia extends back about three decades, during which time the cases that happened gained greater public attention. Although it is often assumed that this sort of activity dates back to the 15th or 16th centuries, with the advancement of public knowledge and media empowerment, people are increasingly coming to the conclusion that it is a major violation of human rights. However, when we talk about necrophiliac acts in the 15th century, these kinds of actions were primarily associated with the romantic element of Necrophilia.
Historians felt at the time that people had such a strong connection with souls that they couldn't comprehend the concept that death might be the catalyst that broke their bond. As a result, if a person who was forever loved by someone died, his or her corpse was maintained in order to continue the behaviours begun prior to death with the other partner. There was no evidence of sexual activity in these activities. Sexual intercourse, they claimed, was ineffective in conveying the emotion of love.
Although Indian laws are unclear about a crime such as necrophilia, they do not disregard human rights after a person's death. Article 21 of the Indian constitution recognises not only the right to life with dignity and respect, but also the right to die in a dignified manner, In the case of Parmanand Katara vs. Union of India, the Supreme Court further stated that Article 21 guarantees the right to life, fair treatment, and dignity, and that these rights apply not only to the person alive, but also to their deceased corpses.
In Ashray Adhikar Abhiyan v. Union of India, the Supreme Court declared that a deceased homeless person has the right to a dignified cremation in accordance with his or her religious tenets and that the dignity of the dead must be protected. The Allahabad High Court stated in the case of Ramji Singh and Mujeeb Bhai vs. State of U.P. & Ors. that the right under Article 21 includes the right to treat a person's dead body with the same respect as the person would have deserved while alive, and that post-mortem examinations should be avoided unless absolutely necessary. As a result, necrophilia cases are presently referred to and dealt with other laws available in the Indian Judicial system that were initially created for various sorts of offences. A case of Necrophilia is primarily addressed to the two legal clauses of the Indian Penal Code. Sections 297 and 377 are examples of these provisions.
The sole regulation dealing to corpses in our nation is Section 297 of the Indian Penal Code, which deals with encroachment into burial sites. To be convicted under this clause, an individual must have entered the cemetery with the intent of humiliating the deceased, which may include having sexual intercourse with it, i.e., committing Necrophilia. This language of the Section suggests that the major purpose of this Section is to preserve people's religious rights, rather than to guarantee rights to a deceased person against a crime such as necrophilia.
To be charged with Necrophilia under this law, an individual must first have intruded on the graveyard and then had sexual intercourse with the body after removing it out of the grave, or otherwise. This allows persons who commit Necrophilia without entering into a graveyard safe from Indian Law. Perhaps the drafters of the legislation did not intend Necrophilia to be punished in this section; if they did, they would have expressly stated such in the Code, and the sentence would have been greater than that provided for in section 297 of the Code. Because of this vacuum in our penal code, the two suspects in the Nithari Case, Mohinder Singh Pandher, a rich businessman, and his cook, Surendar Koli, were not charged with Necrophilia.
In this particular case, the police invaded the perpetrator's house after receiving information about the killing of a 19-year-old girl who was one of many females who had gone missing from the village of Nithari and proceeded to the accused's residence. They discovered several pornographic CDs and images of naked women and children.
This was followed by a thorough investigation, the submission of a report to the court that discharged Pandher owing to a dearth of evidence, and the filing of a lawsuit against Koli, who had consented to the abduction, rape, murder, and desecration of the remains of dead girls, under S. 302 (punishment for murder), 376 (punishment for rape), 201 (causing disappearance of evidence of the offence or giving false information and some other relevant provisions of IPC, Because Necrophilia is not a crime in India, no charges could be brought against him for having sexual relations with the corpse.
Another incident of same type has been reported in Mumbai. According to the Indian Express, the perpetrator lured the woman victim to his flat, where he pummelling her to death before savagely raped her. The accused acknowledged to killing the victim and sexually abusing her body. Nonetheless, he was sentenced for rape and murder, not for post-death intercourse, because Necrophilia is not a crime in India, and no prosecution could be launched against him for this act.
There has been debate about whether Section 377 of the IPC might be enforced in such cases. The provision imposes a penalty of life imprisonment or detention for up to 10 years on anybody who wilfully engages in sexual intercourse with any man, woman, or animal in violation of the natural order.
Although having intercourse with a dead body is not natural and thus falls under the category of an unnatural crime, one of the key components of this provision is voluntariness, and there is no way in which approval could be obtained from the dead body, making the intercourse involuntary. Because of the ongoing disagreement over the phrase "voluntarily," necrophilia is not covered by this Section, therefore the right to dignity of deceased people is unprotected.
Another requirement is that the intercourse be performed with a man, a woman, or an animal; nevertheless, a dead corpse is regarded a dead body because it is no longer humans. They are undeniably human, yet once a person dies, he or she becomes quasi-subject to the law.
The legal status of a corpse sometimes makes Necrophilia more difficult to grasp when compared to the sacredness that certain families regard the body as holding- the individual may be gone, but they remain a valued one. In the legal sense, a corpse becomes a kind of property for the next of kin, making Necrophilia a form of vandalism rather than a sexual assault on an individual.
Law around the Globe
At the global level, the dignity of a dead person is regarded an integral aspect of human rights, and many international agreements and declarations have incorporated different requirements to ensure such human rights are upheld. Article 130(1) of the Fourth Geneva Conventions discusses the dignity and respect of the deceased and specifies that governments shall guarantee an honourable burial of the dead and, if feasible, such burial should be done according to the person's rites and religious ceremonies. In a 2005 Resolution, the UN Commission on Human Rights emphasised the need of respectful handling of human remains, including proper management and disposal, as well as regard for the needs of families. Aside from such international declarations and agreements, several nations, such as New Zealand, South Africa, and the United Kingdom, have implemented highly strong and detailed rules that criminalise necrophilia and any other conduct that interferes with the dignity and respect of such bodies.
Let us begin with the United States' laws since we adhere to the common law foundation. The United States has no federal legislation regarding Necrophilia; it is up to the individual states to enact such legislation. Approximately forty of the fifty states in the United States have some type of regulation describing illegal conduct using dead bodies.
There are four states that specifically use the term Necrophilia in their legislation: Arizona, Georgia, Hawaii, and Rhode Island, and the other thirty-six states have several legislations that refer to Necrophilia, with sentences ranging from one year (in several states) to fifteen years (in Georgia) and twenty years (in Massachusetts).
Without the explicit use of the terms Necrophilia, penetration, or any sex-oriented phrase, the Criminal Code of Canada, 1985, makes Necrophilia illegal. According to Section 182 of Part V of the Law, whomever behaves indecently or inappropriately or provides indignity to the dead body or its remains is guilty of the offence and is punishable by imprisonment for a time not exceeding five years.
Need for Laws regarding Necrophilia
This type of offender can only face legal punishments for rape, murder, and maybe bestiality. However, it is vital to note that they are not held liable for abusing the deceased's dignity. This offence affects the dead's family and those who have had a sexual interaction with the perpetrator in addition to the particular offender and the deceased.
It is critical to preserve the interests of the deceased, the feelings of the family, and those who have had sexual relations with the offender. Because of the possible spread of illnesses and infections, it is important to check their health.
While S.297 of the IPC specifies that "any indignity to any human corpse" is prohibited, the focus is on trespassing on burial grounds and religious sites where the deceased are laid to rest. The crime of necrophilia is more common at mortuaries. However, it does not appear appropriate to use the word mortuary in this section.
The number of occurrences in India is increasing, yet there are no regulations limiting the wrongdoing. The issue with numerous Necrophilia violations is that, unless particular law exists to make the demonstrations illegal, it may become impossible to oppose. Another example is savagery. There is no evidence in the nation demonstrating measures of sexual intercourse with animals. Many sexologists have noted its prevalence in rural regions and among those who live near domesticated animals.
Corpses are not persons. They are, without a doubt, human, but after we die, we become semi-subjects under the watchful eye of the law. When we consider it akin to the sanctity that certain families would perceive the body as holding- the individual could be dead, but they remain an acquaintance or a family member- the legal standing of a corpse usually makes Necrophilia much more difficult to fathom.
According to the law, in some cases of Necrophilia, a body becomes a form of property for the nearest family, an idea that many find doubly upsetting. Necrophilia becomes a tragic tragedy in this situation, rather than a sexual assault on a person. Some states in the United States consider necrophilia a crime, whereas others consider it an offence.
Permission or punishment for ill-treatment of a corpse was considered misbehaviour, and more severe sanctions appear to be unquestionably unreasonable in view of the fact that the harm contained is only a shock to reasonableness. The disregard for corpses reverberates indifference for the departed and the surviving classes of the dead. The treatment of the deceased should be approached in the same manner as the extraordinary rehearsals among the living.
Mental and Clinical Reasons
Several researchers have attempted to understand the causes and clinical motivations for Necrophilia. According to Rosman and Resnick, the most common factor they have discovered is a lack of confidence and fear of rejection. They have explained how necrophiles perceive corpses as a carnal object that cannot be ignored.
They discover corpses that suit their low morale desires, as well as an accomplice who will not tyre of them without any problems. In certain cases, after being introduced to a body, he produces an energising fantasy of intercourse with a corpse.
As Ernest Jones stated, "the dead person who adores will cherish forever and never grow tired of giving and receiving touches." Necrophiles have been portrayed as intellectually deficient and incapable of gaining a consensual sexual mate.
Connectivity behind Necrophilia and Sexual Murders
Because the idea of Necrophilia is still relatively new, society, as well as jurists, frequently associate Necrophilia-related actions with sexual murders. However, each of these notions are diametrically opposed and hence reflect separate sets of actions. With thus much misunderstanding existing at the most fundamental level, it is difficult to develop a different set of legal requirements for both of them.
If properly implemented, the legal provisions formulated in relation to Necrophilia and sexual murders shall not only define the acts themselves, but shall also mention the respective amount of punishments to be inflicted on the convicts, in addition to the protection of the victim's families' rights. Furthermore, the provisions must be written in such a way that they are capable of restoring the victim's affected rights through compensation measures.
Necrophilia, by definition, refers to sexual behaviours performed by a human being with a dead body or corpse. Necrophilia is distinguished from the others by the method in which the offence is performed. In the instance of Necrophilia, a person engages in sexual activities with a dead person or a corpse, i.e., a person who has already died is utilised to satisfy odd sexual cravings.
In many of these circumstances, Necrophilia is linked to the concept of defiling the dead. This word is mainly associated with graveyard manipulations. In some circumstances, a person who is already deceased is defiled from the graveyard and then exploited to satisfy sexual needs.
Some of its related instances address murder as well as Necrophilia-related acts. In this example, a person murders the other person and then engages in sexual intercourse with the body. These behaviours typically entail a sense of fury and revenge, and hence commit the act within that context. Even after such heinous deeds, a person's fury pushes them to engage in practises of a Necrophiliac type.
Sexual Murders, on the other hand, are the polar opposite of Necrophilia. Sexual Murders are defined as behaviours in which a person participates in sexual activity with a live person and subsequently murders the other person to escape suspicion and the acquisition of evidence. Sexual acts done before to the killing of a person are frequently non-consensual in character and so constitute rape. Fortunately, these sorts of activities have distinct legal rules in which the offence is adequately characterised, as well as the necessary punishment and compensating measures for the prisoner and victims.
Rising cases of Necrophilia in India
In general, we believe that because there aren't many examples in India, this crime isn't getting the attention it deserves. But this is the most incorrect notion since, while the media is preoccupied with someone's love story and other frivolous matters, essential issues are sometimes overlooked. Let us look at some recent incidents of necrophilia in India. One of the most heinous cases, the Nithari case, has previously been covered.
The Delhi Police have apprehended a 36-year-old 'crazy murderer' who is accused of strangling a guy to death, cutting his arms and neck with a knife to see if he was still alive, and then sodomising the victim's dead body. Pervinder, a resident of Sonipat, Haryana, was discovered to be engaged in a rape case involving a young boy that was reported at Police Station Kundli, Haryana, in 2017.
In 2018, a 20-year-old labourer from Gurugram admitted to raping several of his victims' corpses in order to satisfy his passion for sex and maximise his catch. In another example in Uttar Pradesh, a deaf and dumb man attempted to rape a woman, but when she resisted, he strangled her to death and raped her body.
In May 2020, police in Assam detained a 50-year-old man for suspected sexual intercourse with the deceased body of a 14-year-old girl. Skarkur Lucas, a cemetery attendant from Ghana, revealed on a live streaming news channel in 2015 that he had sex with the dead corpses of ladies in the mortuary "many times" because he didn't have a girlfriend. In majority of these cases, the accused are charged with murder, rape, sexual assault, and cannibalism, depending on the circumstances, but not with necrophilia since the statutes are so broad. Because of such ambiguous legislation, the state is likewise unable to draught appropriate accusations, and this dubious crime goes unpunished.
The Palghar instance goes back to July 2020, at a period of nationwide lockdown owing to the epidemic. During this time, a 30-year-old shopkeeper is accused of murdering a 32-year-old woman and then sexually assaulting her body. The offence was claimed to have been done in furtherance of a dispute over the price of certain products from the accused's business, since he smacked the victim, dragged her by the hair, strangled her, and cut her throat. The accused then performed sexual contact with the body while still enraged. The accused was eventually convicted for murder and rape based on CCTV video.
Availability of the Prospective Defences
In the current judicial system, situations involving necrophilia are the most readily preventable, with each and every accused or prisoner of necrophiliac behaviours enjoying a condition of liberty. In the lack of a strong legislative provision utilised to defend the law and offer room for the accused, once necrophilia is revealed, the court system is sometimes rendered incapable to get justice.
As previously stated, in the absence of a law specifically made for necrophiliac activities, the accused and convicts are usually dealt with legal provisions made for other purposes, such as Section 297 and 377.
When it comes to the accused or the convicted of Necrophilia, the most usually cited defence is insanity of mind. Every instance of Necrophilia mentions the potential of a person's unsound nature, in which he/she does not have complete control over his/her mind and senses when discovered engaging in a Necrophiliac action, and so commits such an offence.
Now, because the individual lacks control over his or her senses, the appeal to the court always demands for the categorization of the person as having an unsound nature, and therefore, instead of punishing, admits him or her to a mental rehabilitation facility. This action by the court not only violates the rights of the victim's family, but it also calls into question the administration of justice in society.
This defence of insanity of mind appears to be very unethical in the first place, as it is a commonly deducible stating that not all accused of Necrophilia might be a sufferer of unsound nature. Many times, the mere act of engaging in necrophilia reveals and shows the seriousness of the crime, as well as the bestial nature of the individual engaged. Even in the most basic sense, engaging in sexual acts with a corpse is regarded an act that is obvious in the presence of bestial nature.
Unfortunately, the highly learned class of the legal fraternity is capable of turning the entire notion in a case of Necrophilia from bestial nature to a person's unsound character. In recent years, there have also been situations in which the onset of necrophilia is simply a result of men's fury and graveness. This hatred within builds and overcomes the insight, eventually becoming the drive for conducting Necrophiliac behaviours. These actions are typically centred on murdering someone and then engaging in sexual intercourse with the body.
Changes in Bhartiya Nyaya Sanhita
We recognise the gaps in the Indian Penal Code because it was drafted in 1860, but we neglected to change the statute at the appropriate time. We decide to cover our eyes and lock our lips to ignore what is occurring after hearing about similar occurrences and contemplating how inhumane this act is.
However, the new Indian penal code, Bhartiya Nyaya Sanhita, is absolutely quiet on this matter. There is no modification to the current section or inclusion of a new provision in the legislation covering necrophilia.
Despite such horrific incidents in India, no word like necrophilia is mentioned. The legislator should have paid attention to this as well. It is time for the parliament to make its position plain by criminalising it, either by amending the IPC or introducing a new provision to it. Unless, of course, the administration is waiting for an incident of the magnitude of the Nirbhaya rape case to occur in this setting, sending the people back to the roads of grieving, protesting, and seeking strict legislation against Necrophilia.
Conclusion
If you've made it this far, I'm assuming you've read the entire writing. Now, do you believe that ignoring this crime is acceptable? Do you believe that granting the offender a pass based on illness of mind is acceptable? Legal authorities claim that no man of sound mind could commit such a crime. Do you believe that rape and gangrape are committed by rational people?
Necrophilia is a horrific crime that has existed for a long time yet is still relatively obscure. It cannot be justified by claiming insanity and should be treated as a serious offence on par with murder. It not only adds to the anguish of losing a loved one, but it also symbolises a heinous violation of the deceased's rights. While it may be founded in a psychological state, that cannot serve as a defence in and of itself.
Indian law is weaker and more unclear. The legal status of a deceased corpse is discovered to be a substantial latency. After recognising the scope of Article 21, which protects a person's right to dignity, the term "human corpse" should fit within the scope of the term "person" under the IPC. Because it is a horrible crime in and of itself and involves non-natural conditions, it should also be considered in light of the unnatural offences listed in Section 377 of the IPC. As a result, there is an urgent need for laws to punish the heinous crime of Necrophilia, which violates the dignity of a dead body.
The horrific act of necrophilia is a crime not only against society, but also against mankind. Denying the fundamental right to a dignified burial is a crime against the deceased's sentiments. Despite this, the legislation in this area is outdated and stale. However, it appears that the country is in serious need of improved legislation.
References
- Necrophilia; Is it an Offence, Rostrum's Law Review, Volume III, Issue 1. Retrieved from https://journal.rostrumlegal.com/necrophilia-is-it-an-offence/
- Section 297, Indian Penal Code, 1860.
- Section 377, Indian Penal Code, 1860.
- Ratanlal & Dhirajlal, the Indian Penal Code, 487 (Lexis-Nexis, 34th ed., 2014). Ibid c 2.
- Mohinder Singh Pandher and Surendra Koli v. State of Uttar Pradesh, Indlaw ALL 237; 2009 (8) ADJ 251.
- Youth gets Life in Jail for killing teen, sexually abusing her body, The Indian Express, 10th Dec 2010 Retrieved from http://archive.indianexpress.com/news/youth-gets-life-in-jail-for-killing-teen-sexually-abusing-her-body/722762/
- Section 250.10, Model Penal Code, (Official Draft, 1962)
- Section 182, Criminal Code of Canada, 1892
- Article 225-17, Code Penal (France), 1994
- Palghar stunned by Necrophilia, a man raped woman's corpse, The Tribune, 04 July 2020. Retrieved from https://www.tribuneindia.com/news/nation/palghar-stunned-by-necrophilia-a-man-raped-womans-corpse-108480