A young twenty-one-year-old girl left her home for a computer class and never returned. On her way back, she was brutally murdered by slitting her neck and the horrendous act of sexual assault was inflicted upon her dead body. The bewildering part of this incident is that the perpetrators were not convicted on the grounds of sexual offence due to absence of any provision in the Indian Penal Code that addresses the menace of necrophilia. The aforementioned incidents are the facts of Rangaraju vs State of Karnatakai.
Through this article, an attempt to deal with these legal lacunae in the penal Laws are made. ‘Necrophilia is a morbid fascination with death and the dead and more particularly, an erotic attraction to corpses’.iiAcross the globe, there is a sense of obscurity on the matter of necrophilia and its penal implications. However the United Kingdom has penal acknowledgment of necrophilia under section 70 of the sexual offences act 2013iii and South Africa criminalizes necrophilia through section 14 of the Criminal Law (Sexual offences and related matters) Amendment Act 2007.iv
While the UK and South Africa are the only legal systems which have taken cognizance of the concept of necrophilia, countries like Canada and New Zealand have adopted approaches akin to India in dealing with matters pertaining to sexual offences committed on dead persons. The existing framework against necrophilia in India does not address the issue in a direct way, rather it is indirectly dealt with through provisions that are not pertaining to sexual offences per se. One such provision is section 297 of the Indian penal codevwhich deals with “indignity to any human corpse” by ‘trespass into a place set apart for performance of funeral rites or as a depository for the remains of the dead ‘which entails a punishment of a year.
Sexual offences against dead persons cannot be included and penalized under section 375 and 376 (rape) IPC because of reasons mentioned and discussed in the ensuing sections of this article. Acts of necrophilia are even excluded from the remit of section 377 of the IPC viwhich criminalizes unnatural sexual acts, the legal rationale behind such preclusion is the mention of ‘man’ ‘woman’ and ‘animals’ in the provision which does not include dead persons within their definitions. The logical absurdity of this provision is that an act that is discernibly unnatural and illegal i.e. sexual acts committed on dead persons has been excluded under this section. The legal dispensation has failed to acknowledge and address this void in penal laws.
While there exists a dire need of specific provisions that cater to the offence of necrophilia to avoid the ambiguity that surrounds the issue of sexual offences of dead persons, we argue that that the sinister offence of necrophilia can be dealt with the existing penal provisions of the Indian Penal Code. Through this article, it is shown as to how the appalling act of necrophilia qualifies as rape under section 375 of the IPC.
The sole ground on which the preparators were absolved of conviction in the matter of sexual offence was a mere technicality as to how the penal provisions in India are strictly applicable to woman therefore sexual offences inflicted upon dead female bodies lay beyond the remit of penal laws of India.vii
However, the Supreme court has explicitly stated in Canara Bank vs Debasis Dasviii that ‘administration of justice should be freed from linguistic technicalities and grammatical niceties’. Therefore, the courts of law are within their power to expand the scope of certain terms and phrases for the purposes of imparting justice. Section 376(2)j of IPCixmentions rape committed on woman incapable of giving consent, we argue that a female dead body with an equal bodily integrity as a living person constitutes as a woman under the aforementioned provision because the intent of the perpetrator is essential in determining the culpability as opposed to the material existence of life.
This argument borrows legal credence from Commonwealth v. Waters and numerous other casesx wherein it was held that it was immaterial if the person was unaware that the victim is alive or dead which is to say that ‘the state of being’ of the victim during penetration is not relevant to the determination of culpability. This arguments finds support in the paper ‘Defiling the Dead: Necrophilia and the law’xi that intent should be given consideration while deciding on matter of necrophilia.
The supreme court has reiterated the established principle in Consolidated Construction Consortium Ltd. v. Hitro Energy Solutions (P) Ltd.xii that the courts should employ ‘purposive interpretation to make the provisos more inclusive’ and justice centered. It is not to be forgotten that a dead person has an equal and sacrosanct bodily integrity that is the same if not more than a living person.
This principle has been legally accepted by the Supreme Court in Parmananda Kataria vs union of Indiaxiii wherein it was held that a dead person has right to life and dignity under article 21 of constitution. Moreover, Fred O. Smith Jr. in his paper ‘The Constitution After Death’ has defined ‘bodily integrity as one that exists with life and persists with death’xiv which is to say that the fundamental and essential rights of a person do not die with the material and biological death of the person.
The third condition that needs to be fulfilled for constituting the offence of rape is the lack of consent. Indian penal code defines consent as “Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act”xv under section 375. This clarificatory definition of consent was added through the Criminal (Amendment) Act 2013xvi on the basis of the recommendations made by JS Verma Committee 2012xvii to develop an affirmative standard of consent. The contrary line of argument resorts to the reasoning that a dead person is not capable of providing their consent.
This implies that there is a presumed consent on the dead person’s part, which is logically inconsistent to the recommendations of JS Verma committee’s report. It is argued through this article that consent is a positive concept and an unequivocal communication of the same is mandatory to qualify as consent.
The inability to provide consent should not be interpreted as presumption of consent but an absolute negation of the possibility of consent. The only possible route of obtaining consent from a dead person is the opt-in systemxviii wherein the family is authorized to communicate the consent. It is writ large that a family will not agree to this terrifying act, thereby refuting the question of consent whatsoever.
Furthermore, the Sexual Offences Act `2003 England and Wales defines consent as a positive concept. Therefore, when a person violates the bodily integrity of a female body through a sexual act that involves the act of penetration as mandated by section 375 of the IPC it qualifies as rape because it satisfies the touchstones of Indian Penal Provisions.
Particularly in a country like ours, where the divinity of the deceased has been preached through a plethora of holy texts, where the dignity of woman has been given paramount importance in the society and a land where the idea of woman empowerment lies at the core of its developmental saga, acts like necrophilia are a disgrace to the society. Therefore, evolution of a legal framework that caters specifically to this heinous crime is essential and vitally important.
(The authors are first year law students at Jindal Global Law School. Views and opinions expressed are personal)
i Rangaraju v. State of Karnataka [2023] SCC Kar 23.
ii Rangaraju v. State of Karnataka [2023] SCC OnLine Kar 23. iii Sexual Offences Act 2013 (UK).
iv Criminal Law (Sexual Offences and Related Matters) Amendment Act 2007, s 14 (SA). v Indian Penal Code 1860, s.297
vi Rangraju v. State of Karnataka [2023] SCC OnLine Kar 23.
vii Rangaraju v. State of Karnataka [2023] SCC OnLine Kar 23.
viii Canara Bank v. Debasis Das [2003] 4 SCC 557. ix Indian Penal Code 1860, s.376 (2) j.
x Commonwealth v Waters 649 NE 2d 724, 726 (Mass 1995), State v Collins 585 NE 2d 532, 536 (Ohio Ct App 1990), State v Hick 762 SW 2d 121, 127 (Mo Ct App 1988).
xi Tyler Trent Ochoa and Christine Newman Jones, ‘Defiling the Dead: Necrophilia and the Law’ (1997) 18 Whittier Law Review 539.
xii Consolidated Construction Consortium Ltd. v. Hitro Energy Solutions (P) Ltd [2022] 7 SCC 164. xiii Parmanand Katara (Pt.) v. Union of India [1995] 3 SCC 248. xiv Fred O Smith Jr, ‘The Constitution After Death’ (2020) 120 Columbia Law Review 1471 https://www.jstor.org/stable/10.2307/26943414
xv Indian Penal Code 1860, s.375
xvi Criminal Amendment act 2013
xvii Report of the Committee on Amendments to Criminal Law (Justice J.S. Verma Committee) 2012.
xviii Govert den Hartogh, ‘Can Consent be Presumed?’ (2011) 28 Journal of Applied Philosophy 295 https://www.jstor.org/stable/24356055
