Necrophilia [Legal Status in India]

The Karnataka High Court declared, in June 2023, that engaging in sexual activity with a deceased lady cannot be considered rape or unnatural conduct under the Indian Penal Code (IPC). In this article, we discuss the legal status of necrophilia in India. This topic is relevant to the Indian Polity segment of the UPSC syllabus.

Necrophilia in India – Legal Status

• The provisions of Sections 375 (rape) and 377 (unnatural offenses) of the IPC do not apply, the court added, because the deceased body cannot be regarded as a person or a human. 
• The court clearly defined necrophilia as a morbid obsession with death and the dead, and necrophilia was defined as having sexual relations with a dead body.
•  It was emphasized that the IPC does not specifically list necrophilia as a crime.
• An individual was found guilty of murder and given a strict life sentence by the Sessions Court, along with a fine of Rs. 50,000 in June 2023.
• He received a further 10 years of harsh jail for raping the victim’s dead body, as well as a fine of Rs. 25,000.

The Karnataka High Court Ruled:

• It upheld the trial court’s judgment to convict him of murder under Section 302 of the IPC and sentence him to life in prison.
• Because there is no IPC punishment for raping a deceased victim, the high court dismissed the accused’s Section 376 charge of doing so.
• Failure to Apply Sections 375 or 377: The Indian Penal Code’s provisions in Sections 375 and 377 make it very plain that a dead body cannot be referred to as a person or a human. Thus, these IPC regulations would not be attracted.
• The court emphasized that sexual activity on a dead body constitutes necrophilia and that no conduct punishable by Section 376 (punishment for rape) had occurred.
• Rape must be “accomplished with a person, not a dead body,” the court ruled. 
• A dead body cannot protest or consent to being raped, and it cannot be afraid of suffering immediate, unjustified bodily harm.
• The court referred to the 2021 advisory of the National Human Rights Commission, “Upholding the Dignity and Protecting the Rights of the Dead,” which states that there cannot be any physical exploitation or discrimination in the treatment of the body and also refers to the right to a decent and timely burial.

Way forward 

• It is suggested to amend IPC Section 377, including under its ambit human, animal, and other dead bodies and uphold the honour of the deceased. 
• Criminalizing necrophilia: It also provided the Centre with the option of enacting a unique penal provision that would make the practice illegal and carry a sentence of up to 10 years in jail and a fine.
• The court also mandated that CCTVs be installed in Karnataka mortuaries within six months, and it tasked the government with upholding privacy and hygienic standards, ensuring the confidentiality of clinical data, and sensitizing mortuary workers.

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