Human corpse— a mere object?
The accused is hereby acquitted…for committing the rape on the victim-dead body as there is no provision in the IPC to punish him for the said offence.
This is what the Karnataka High Court stated in its judgement dated 30 May 2023, acquitting the accused for 'raping the dead body of the victim'.
Partially allowing the convict's appeal in a rape and murder case, the bench of Justices B. Veerappa and Venkatesh Naik recommended that the Centre should amend the IPC (Indian Penal Code) to protect the dignity of the dead.
So, raping the dead is not punishable in Bharat? At least this is how the Karnataka High Court interprets the laws. But I would like to make certain comments in respect of this judgement and would try to interpret the IPC in a manner that might be contradictory to the opinion of the High Court.
On 25 June 2015, the victim woman was returning home, when the accused held and dragged her to a nearby bush. He then murdered her, an offence punishable under Section 302 of the IPC, and after that "raped" her. The trial court convicted him of murder and subsequently raping the victim's dead body. Consequently, an appeal was filed before the Karnataka High Court.
Here, the main point of debate was whether indulging in sexual intercourse with the victim's dead body (necrophilia) amounts to any punishable offence or not.
And as I've already mentioned, the High Court confirmed the trial court's judgement of convicting him of murder but acquitted him of raping the victim's dead body due to lack of provisions in the IPC to punish him for the said offence.
The question before the High Court was whether the act of having sexual intercourse with a dead body amounts to an offence under Section 375 or 377 of the IPC. To answer this question we've to know what these two Sections are all about.
Section 375 of the IPC defines 'rape' as an act where a man has sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation, or fraud or at a time when she has been intoxicated or duped, or is of unsound mind and in any case, if she is under 18 years of age.
Section 377 of the IPC says that whoever voluntarily has sexual 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.
Firstly, when we read Section 375 we can see that it deals with sexual offences committed by a 'MAN' against a 'WOMAN'. Similarly, Section 377 also deals with unnatural sex with any 'MAN', 'WOMAN' or animal. The Karnataka High Court defines them as a "Living Man" or a "Living Woman". How did they come to this conclusion? They refer to Section 10 of the IPC which defines the word 'MAN' as "a male human being of any age", and 'WOMAN' as "a female human being of any age". Their opinion is also based on the medical jurisprudence that "the dead are no longer persons in the eyes of law".
But I would differ here. When a person dies, he does not cease to exist as a human. Corpses, although they may not be living, remain 'human' even if they are dead. The dead bodies are still 'human dead bodies'. And even if the person's body is dead, it is having an age. The interpretation of Article 21 has again and again been expanded by the Supreme Court by extending the 'right to life' not only to the living but also to his dead body. The Madras High Court has also observed that a dead person has a 'right to privacy'. As a result, the definition of 'person' or 'human' in the IPC has to include a human corpse as well. So according to my interpretation, the words 'MAN' and 'WOMAN' include a dead person.
According to medical jurisprudence, "The dead are no longer persons in the eyes of law…They have no rights because they have no interests. Yet, although all the rights of a human being perish with him, the law, without conferring rights upon the dead, does in some degree recognise and takes into account his desires and interests." And what are those desires and interests? In simple words— DIGNITY! A person's right to die in a dignified manner. And in this case, the victim has been robbed of such rights.
Secondly, when we see Section 375 we find that if the sexual intercourse happens 'without the consent' of the woman or the woman is 'unable to communicate consent', it amounts to rape. And I don't think there would be any confusion that in this case, the dead woman was not in the state to communicate her consent.
Thirdly, carefully reading Section 377 of the IPC highlights the phrase "against the order of nature". A very genuine question would arise— What does 'against the order of nature' mean?
The phrase "against the order of nature" is a very vague one and has not been defined in any provision of the IPC, thus there is no definitive answer to the question.
'Order of nature' generally means events that are normal and expected to occur naturally. Unnatural is something contrary to what is considered natural. What is natural and what is unnatural is a subject of debate and has led to much confusion. Something which may be natural for you may not be natural for somebody else.
As IPC is a product of British colonialism and Section 377 has not been amended at all to date, the law has not evolved with time. The law is based on the Judeo-Christian moral and ethical standard which conceives sex only for the purpose of procreation and based on that homosexuality was considered unnatural. "With the passage of time and evolution of the society, procreation is not the only reason for which people choose to come together, have live-in relationships, perform coitus or even marry. They do so for a whole lot of reasons including emotional companionship."
The phrase 'against the order of nature' has to be assessed on today's parameters. So instead of the original intention of the lawmakers, the situations and norms of the present society and the Constitutional acceptability of such norms should be the primary source for the purpose of interpretation of the Section.
And the 'dignity of the dead' isn't a new thing, the notion was there when the IPC was framed and exists even now. And this notion has been upheld by the Constitution too, Article 21 has been interpreted to include the protection of the dignity of a dead person. Thus 'against the order of nature' would include sexual intercourse with a dead body and such would be a punishable offence under Section 377 of the IPC.
The Karnataka High Court has focused too much on the letter of law, i.e., the literary text of the Sections. They've overlooked the objectives of those Sections. When Section 375 and 376 are invoked for protecting the dignity of a 'Living Woman' then they can easily be used for the protection of the dignity of a 'Dead Woman' too because the objective of Section 375 and 376 is to protect women from sexual offences and that should be the same for even the dead ones. Section 377 is invoked to maintain decency so that people don’t indulge in sexual acts beyond the scope of the societal norms guarded by the Constitution, and as already mentioned, the dignity of the dead has always been respected and doing sexual acts with it would be against the 'order of nature' thus robbing the dead of its rights.
"The human corpse is a thing, a material object—a messy, maybe dangerous, perhaps valuable, often useful, and always tangible thing…" But the dead human body is also something very different— It is your parent, your friend, perhaps your child, and someday, you. I believe everybody wishes to die in a dignified manner and that their dead body should be cremated properly, you wouldn't want your body to lie in a gutter where animals and insects are eating it up. And when a dead body is mistreated in the form of a sexual offence, it is robbing such dignity of that dead person.
Committing rape on a dead body doesn't just rob the dignity of the victim but also puts a huge impact on the family of the victim. We are a society where many families believe that the death of the victim is considered better than getting raped because such incidents put a dent in the family's reputation. So for the family such acts would still be rape whether it happens with a living woman or a dead woman. And thus they would have to live under shame and humiliation because society would not let them live peacefully. And how can acts of necrophilia which shake the collective conscience of society be allowed to continue with almost zero consequences?
The IPC has one provision which remotely covers the act of necrophilia— Section 297, which punishes the trespasses of any funeral ground, or a depository for the remains of the dead, or offers any indignity to any human corpse, or disturbs the people performing the funeral, with the intention or knowledge of wounding the feelings of any person, or of insulting the religion of any person.
The phrase "offers indignity to any human corpse" shows that it punishes necrophilia as having sexual intercourse with the dead body is an act of harming its dignity. But the problem with Section 297 is that it is not a specific law about necrophilia, it includes several other acts too and thus the punishment is only one year or a fine or both. The Karnataka High Court has sidelined this provision too.
I would agree with the High Court when they say that to maintain the 'right to dignity' of the dead there needs to be a law specifically addressing the acts of necrophilia, but I would also say that as the court's job is to deliver proper justice in accordance to the law they could've interpreted the provisions of the IPC, maybe in a similar manner as I tried to do, to ensure that till the time any specific law comes up, the victims do not get deprived of their 'right to bodily integrity'. I understand that deciding on such issues of vacuum in law is not easy but the Constitutional rights of the people should not be compromised at any cost.
There can be an argument that necrophilia is a mental condition that needs treatment and not punishment under the criminal law, but an offence is an offence subject to all just exceptions. Even if I agree that necrophiles or murderers are mentally ill, they can't be excused and set free, they still need to be locked up and kept away from the rest of us because they're not going to stay within acceptable boundaries and hence they're a danger to others. After that, they may be treated for their mental condition, but the punishment of long-term imprisonment has to be given to give them the realisation of their wrongdoings.
—Siddhant Sharma
Views are interpretational
The Cry of the Dead is Unheard But Not Their Dignity
Most run for life after birth before death. Very few think about life after death. No one, however, thinks about the dead body therefore, the IPC would not explicitly punish a rape committed on a dead body.
The question, therefore, arises can Section 375 of the IPC, which defines rape, include rape committed on the dead body, or can Section 377, which punishes 'unnatural intercourse', 'unnatural' for nature, include rape on the dead body?
The question is simple and the answer for the same is also simple, then where is the difficulty?— That will emerge later in this discourse.
Crime cannot be committed between two or more non-living persons except if it is not a crime against the property, therefore while defining the words 'MAN' and 'WOMAN', the IPC would use the expression 'HUMAN BEING'. A grammarian says that the word 'HUMAN BEING' is a noun therefore, inconclusive for understanding as to whether 'HUMAN BEING' would include dead or not.
The object of Section 375 is protecting the dignity of the women, the purpose, however, may be to protect the same of the living women. Section 377 would be made for protecting the dignity of nature. Section 375, therefore, can be interpreted to understand that, as it is for the protection of dignity, and when Article 21 is read to extend the protection of dignity to the dead bodies also therefore, it follows that Section 375 can be read to extend its horns against those who commit rape on the dead. On the other side, for extension of Section 377, the first question that would arise for consideration is whether committing rape on the dead is against nature. I would confess that it is hard to know what is the order of nature as it is always changing. There was a time when nature allowed us to live on its lap and now we search for shelter when it is raining, therefore, it is better to keep Section 377 out of the discussion because only nature can say what is its nature.
The rape on the dead body, therefore, can be punished through the device of interpretation thereby the question is— Would it be appropriate in the criminal law to punish an act that otherwise is not a crime?
That said, can we punish someone for an act, which has not been explicitly made a crime by the IPC? Article 20(1) of the Constitution would start by saying that you cannot punish a person for an act that the law does not recognize as an offence. One, however, would argue that look we can interpret Section 375 and can declare the act of committing rape on dead a crime, then the 'doctrine of levity' would interject saying when criminal law is ambiguous then the same shall be interpreted for the benefit of the accused, therefore Section 375 cannot be interpreted to include the accused which otherwise is left by the Section.
Therefore, the consequences of rape as it stands today, cannot and shall not be applied to rape on a dead body for the reason the punishment prescribed for the commission of rape would be disproportionate to rape committed on a dead body as the rape of living attracts pain and scares all the living, and therefore the punishment is rigorous.
Section 297 punishes— Whoever offers any indignity to any human corpse, however, for the lesser punishment, which is merely one year, the protector of the bodies would not be satisfied because they want more than one year of jail.
The living body burns itself by burning calories, the dead body cannot burn itself but will be perished by the order of nature. It needs to be burned by the others living, and such burning, burial, such goodbye shall be dignified. The question however may arise: What if a person during his lifetime has willed to transfer his dead body to someone, who he or she loved during his lifetime, and his/her specific direction is not to dispose of the dead body but do anything with the body?
—Hritam Saha
Views are interpretational
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