INTRODUCTION
Twenty-one-year-old Rathnamma was returning home from her computer classes in the Tumakuru district of Karnataka when her throat was slit and she was brutally murdered. The perpetrator, unfortunately, did not stop there. The dead body of Rathnamma was then raped by the accused. The court convicted the accused on the charges of murder but not rape[1]. The court, in the statement through Justice Venkatesh Naik, decided that a dead body has no feelings of outrage and, thus, sexual intercourse on a dead body is nothing but necrophilia[2]. It is regretful, to say the very least, that this young woman was not provided adequate justice for the heinous crimes committed against her.
Necrophilia is a psychosexual disorder classified under paraphilias, such as paedophilia and sexual masochism. Necrophilia refers to the sexual attraction towards the dead. The word is derived from the Greek words ‘Nekro’ meaning “the dead,” and ‘philos’ meaning “attraction towards.” It is the act of performing sexual activities with corpses. We are all provided with the right to life under Article 21[3] of the Indian Constitution. In the landmark case of Parmanand Kataria vs. Union of India[4], the scope of Article 21 was broadened to include the Right to die with dignity within its range. Such evil atrocities committed around us bring us to the question- ‘Are women not safe even after their death?’
INDIAN LAWS
There have been no such provisions made in India against necrophilia. One can even say that it is a legal act in the country. Section 375 of the IPC[5] defines ‘rape’ as the act of a person wherein he has sexual intercourse with another without their consent or against their will by coercion, misrepresentation, or fraud. This definition refers to a person per Section 3(42) of the General Clauses Act of 1897[6]. This definition is only limited to individuals or companies living in nature. The dead are not an accepted part of this definition. Thus, an anomaly is created. The rape of the dead is not considered rape and, therefore, is not punishable.
Shri Nithin Ramesh was appointed the Amicus Curiae in the following case by the court. He has provided us with various insights on the terms of ‘necrophilia’ and their interpretation. The learned Amicus Curiae took cognizance of Parmanand Kataria vs. Union of India[7] to impart the amendment to Article 21[8] wherein the right to live with dignity was extended to include rights to dead bodies. He further argued that Section 297 of the Penal Code, 1860[9], which states that anyone who “commits any trespass in any place of worship or on any place of sculpture, or any place set aside for the performance of funeral rites or as a depository for the remains of the dead, or offers any indignity to any human corpse, or causes disturbance to any persons assembled for the performance of funeral ceremonies,” remotely covers the act of “necrophilia.” While not directly related to the issue, this is the closest punishment under Indian Law to the same. Sad to say, the bench found the defendant guilty of murder, not rape, in the aforementioned Tumakuru district case. Their rationale is that rape only occurs when the modesty of a ‘living’ person is violated. The bench did, however, urge lawmakers to inculcate stricter laws that protect women and form acts that could prevent the furtherance of such gruesome crimes.
SIMILAR CASES
The case of Rathnamma was not an isolated one. Various cases around the world and our country are seen relating to the topic of necrophilia. In India, in August 2022, a twenty-three-year-old man in Assam snuck in on a woman having a shower, bludged her to death and then raped her dead body. During peak covid lockdown in 2020, a shopkeeper slit the throat of a woman who he had a fight with in his shop. He then proceeded to rape her dead body[10]. The Karnataka High Court had, in a recent judgment, ordered CCTV monitoring and various provisions to be made within six months in mortuaries as it was noted that multiple personnel responsible for the mortuary were raping the bodies of dead women[11].
INTERNATIONAL PROVISIONS
If we look at laws that other foreign countries have made concerning this issue, we can see that in many countries, necrophilia is a punishable offence and is deemed illegal. New Zealand, in its Crimes Act of 1961[12], serves a time of two years or more in jail for acts on corpses, whether buried or unburied, that harm its dignity. In Canada, necrophilia is punishable under law for a term of not more than five years.[13] According to South African Law[14], crimes against the dead are illegal and felonious. The Amicus Curiae mentioned all these acts in his interpretations.
CONCLUSION
It is sad to see that underdeveloped countries such as South Africa have better rights to protect their population than our country. India is at the crux of development, and thus, it is high time laws and amendments are made to safeguard the rights of women and provide them with justice, even after their demise. The courts should protect the natural right of a human to live and die in peace. Necrophilia is a heinous act that violates not only the body of an individual but also pollutes their tranquility in death. It leaves a deep and scarring memory to the family members of the victim and leads to their defamation, too. Lawmakers should make provisions to stop such practices in the country.
In a famous quote, Lois McMaster Bujold said, “The dead cannot cry out for justice; it is the duty of the living to do so for them.” This is an impactful statement in place of the above cases. As a society, we have seemed to develop laws and rationales to protect the rights of the living. However, the rights of the dead are missing. It is despicable of humans to have not left the dead alone. The acts of necrophilia have recently been garnering more and more attention in the news, but no such laws have been formed for the same. The absence of laws on necrophilia shows a gap in the Indian Legal System. It makes us believe that our rights as individuals are not protected after our death. India should take Suo Moto Cognizance and create solid legal boundaries to protect people against such acts. Awareness must be spread among individuals, and strict penalties should be made. By doing so, India would be sending out a message to the world about how we, as a country, do not tolerate such evil atrocities.
Author(s) Name: Girisha Sharma (Symbiosis Law School, Pune)
Reference(s):
[1] Indian Penal Code, 1860 (s. 302)
[2]RangarajuVajapeyi v. State of Karnataka [2023] Kar 23
[3] Constitution of India, 1950 (art. 21)
[4]Parmanand Katara v. Union of India [1989] 4 SCC 286
[5] Indian Penal Code 1860 (s. 375)
[6] General Clauses Act, 1897 (s. 3)
[7]Katara (n. 4)
[8] Constitution (n. 3)
[9] Indian Penal Code, 1860 (s. 297)
[10] Times Now News (timesnownews.com) <https://www.timesnownews.com/mirror-now/crime/article/mumbai-shopkeeper-murders-woman-customer-has-sex-with-corpse/615958> accessed 23rd February 2024
[11]Rangaraju (n. 2)
[12] Crimes Act, 1961 (New Zealand)
[13] Criminal Code of Canada, 1985 (s. 182) (Canada)
[14] Criminal Law Amendement Act, 2007 (s. 14) (South Africa)
