The Indian Criminal System penalises violation of dignity of an alive woman, while overlooks similar deed to a corpse, regardless of the morbid nature of act- the outlook contested by the Karnataka Government in the Hon'ble Apex Court. On February 4, 2025, the Supreme Court of India, dismissed a plea by Karnataka Government to interfere with High Court's decision to acquit convict for the offence of Necrophilia, since judiciary lacks authority to punish acts which are not explicitly penalised under Indian law. Repeatedly, the perpetrators are acquitted due to legal vacuum present. This blog examines loopholes in the Indian criminal laws and underscores prompt need of criminalising necrophilia to protect dignity of corpses enshrined in constitution.

Introduction
Necrophilia is derived from the Greek words philos and nekros meaning attraction/ love for a dead body. Efforts to deter live individuals from participating in sexual actions with deceased individuals have been documented since ancient times, predating the Common Era. For instance, In ancient Egypt, dead bodies of noble ladies, were not immediately given to embalmers, to avoid sexual exploitation of their corpses. Necrophilia does not merely breach an individual's right of personal autonomy and dignity, but also is gender targeted, disproportionately affecting women. Dr. Anil Aggarwal, in his epidemiological investigation, concluded necrophilia as a continuum of behavioural inclination consisting of ten separate tiers. It is one of the types of Paraphilia or psychosexual disorder, internationally recognised by both the World Health Organisation and the American Psychiatric Association.

Necrophilia can remotely be considered as rape, trespass to burial places, or unnatural offences due to the strict interpretation and insufficiency of provisions under the Indian laws. The judiciary in its precedents have set aside the categorisation of necrophilia as rape, which can only be applied to a living person.

Criminal Law Gaps

Bhartiya Nyaya Sanhita (BNS, hereinafter), the newly enacted criminal code of India, does not recognise necrophilia as an offence. Indignity, trespass or disturbance caused to human corpse is articulated in Section 301, BNS, which is closest, yet remotely addresses act of necrophilia, since it is punishable for mere period of a year and does not penalise people under official capacity such as cremator or morgue attendee. Moreover, voluntary carnal intercourse with a man, woman or animal is addressed under Section 377, IPC. However, it does not apply, as the definition of unnatural offences neither mentions a dead body, nor considers its inability to consent. Rape under section 375 IPC, will not be attracted since it mandates the following essentials, not applicable in necrophilia:

• Definition of 'Man' and 'Woman': Rape can be committed by a man on a woman, who are defined under BNS with respect to their quantifiable biological component, age, which is attributable to humans only.
• Incapacity to Consent: Consent is defined as, an unequivocal voluntary agreement, involving an active and reasoned deliberation towards the proposed act. Courts have held that consent requires mind weighing, knowledge and communication, which deceased is incapable of giving.
• Willingness: The expression "against her will" means that the act must have been done in spite of the opposition of the woman. Intercourse without will of a woman constitutes rape; however, the deceased lack capacity to express opposition, feelings or outrage.

Therefore, the criminal law lacks in both, substance and judicial interpretation, to recognise sexual intercourse with a corpse as an offence.
Judicial Interpretation of Article 21
Although the Criminal Law fails to explicitly acknowledge necrophilia as an offence, the judiciary has interpreted Article 21 of constitution to provide a broader understanding of dignity. The constitution of India, in the case of Pt. Paramanand Katara v. Union of India, recognises the right to fair and dignified treatment to living and dead persons under article 21. The Madras High Court acknowledges the dead's right to privacy and their entitlement to remain undisturbed. Interpretation of expression 'person' in Art.21, includes a dead person in a limited sense, thereby extending the meaning of right to life incorporating respectful treatment of dead body. It can be clearly inferred that right to dignified and respectful burial is constitutionally guaranteed in India.

Judicial Trends
The judiciary has time and again reiterated its stance of not criminalising necrophilia under the Criminal law. Recently, in the case of Rangaraju @ Vajapeyi vs State of Karnataka, the trial court convicted the accused for murdering and post mortem sexual assault of a 21 year old women under section 302 and 376 of Indian Penal Code (IPC). The Karnataka High Court modified the order of the trial court while deciding the appeal by upholding conviction of the accused for offence of murder alone while setting aside the presence of rape. However, the High Court allowed the Karnataka Government to approach before apex court,  with a plea to re interpret section 375, IPC to include alive as well as dead under the term 'body', citing lack of consent from deceased person.

Similarly, a judgement of Chhattisgarh High Court directed acquittal of co- accused person charged with raping a nine year old girl's corpse. The court convicted principal accused for rape and murder, while charged the co- accused with destruction of evidence and under section 34, IPC. Mother of the deceased filed an appeal in the High court challenging the acquittal of co-accused for the offence of rape despite having adequate evidence for the same. The High Court in its judgement, reaffirmed the Trial Court's decision of acquitting the co- accused and held that for the commission of an offence of rape, the victim should be alive. The Court in its observation classified the act as horrendous before dismissing the deceased's mother's appeal due to lack of legislative regulation for the same.

Global Standing
India must take inspiration from countries which recognises necrophilia as a standalone offence, providing appropriate punishment for the same. For instance, United Kingdom sanctions the act of necrophilia with a term of two years under section 70 of Sexual Offences Act, 2003. Several states in USA have their explicit statutes prohibiting necrophilia, while New Zealand punishes who fails to perform basic duties towards dead bodies be punished under Section 150 of the New Zealand Crimes Act, 1961.

Although no international conventions explicitly addresses necrophilia, they uphold the protection and dignity of dead remains. The NHRC ensures human rights to all, dead and alive, The CEDAW committee promotes consent based definition of rape, while Rome Statute of International Criminal Court has acknowledged rape and other acts of sexual violence as "crimes against humanity." Moreover, Article 130 of Geneva Convention ensures dignified burial and proper maintenance of graves, and IASC guidelines secures privacy and respect to mortal remains. Non criminalisation of necrophilia culminates in gross violation of binding international conventions, protecting deceased's dignity.
 
Recommendations
Necrophilia, also referred to as a horrible manifestation of sadism, must be recognised as an offence under BNS, given the appalling nature of the act. The taboo and covert nature hinder effective discourse and dispute resolution, leading to underreporting of such cases, especially in mortuaries, causing large number of behind the door crime.

Recently, the Hon'ble Supreme Court recommended Central Government to either amend section 377 IPC to include sexual assault with dead body as unnatural offence or incorporate a separate provision recognising the act of necrophilia. A novel provision must be added to the newly enacted laws to criminalise unnatural offences such as necrophilia and bestiality.

Although necrophilia is not a space enclosed crime, it can be regulated by strict adherence to rules and regulations of mortuaries ranging from mortuary hygiene, regular inspections, installation of cctv cameras, sensitisation of staff to uphold dignity of deceased. Furthermore, mental health evaluations and therapy of convicts would help analyse the root cause behind such actions, including lack of self- esteem, fear of rejection, reunion with deceased partner and assurance of an unresisting partner. Sensitisation campaigns must be raised by NGOs or Legal Aid to disseminate awareness and encourage discourse in public.
 
Conclusion
The act of necrophilia rooted in stigma and prejudice, prohibits people to address the issue in public, leading to acquittal of people with disturbing behavioural tendencies engaging in the same. Necrophilia is not merely against human and societal conscience but is also severe transgression of right to privacy, personal autonomy and dignity enshrined to each, whether alive or dead. While there are many laws protecting women's dignity while they are still alive, but there remains a legislative void to stop inhumane acts such as necrophilia.

The nine year old girl from the SC community being raped, murdered and again raped before getting buried deserve justice as much as anyone else. One of the most repulsive incidents from an ancient nation, rich in heritage and familial values, almost beyond belief, parents in Pakistan place padlocks on graves of their daughters to prevent assault of their corpses, following the revelation by a grave keeper admitting performing rape on dead remains of 48 women.

The Legislature on recommendation from the Hon'ble Supreme Court, must amend BNS to punish such a ghastly and spine- chilling act. Merely acknowledging the act to be horrendous while exonerating the accused due to lack of legislation is nothing but severely unjust and insufficient, making the society question, whether the state of victim being alive or dead be criteria for criminalizing rape. It is imperative to address the issue at the earliest by the Central Government to attain clarity and curb recurrence of such gruesome acts in future.