Justice In Death: Should Necrophilia Be Recognized As Rape Under Section 377 Of IPC
In a recent case, the Karnataka High Court, comprising a division bench of
Justice B Veerappa and Justice Venkatesh Naik T, addressed the question of
whether rape or sexual assault committed against a deceased person would attract
punishment under Articles 375 and 377 of the Indian Penal Code (IPC). The
court's verdict shed light on the interpretation of these sections and their
applicability to such heinous acts. The bench said "A careful reading of the
provisions of Sections 375 and 377 of the Indian Penal Code make it clear that
the dead body cannot be called as human or person. Thereby, the provisions of
sections 375 or 377 of the Indian Penal Code would not attract."
Understanding the Legal Provisions:
Upon careful examination of Sections 375 and 377 of the Indian Penal Code, the
bench concluded that the provisions of these sections do not extend to actions
against a dead body. The court emphasized that the terms "human" or "person"
cannot be ascribed to a deceased individual. Therefore, according to the court,
the offenses outlined in Sections 375 and 377 of the IPC would not apply in
cases of sexual crimes committed against a dead body.
Section 377: An Analysis:
To delve further into the matter, it is crucial to scrutinize Section 377 of the
IPC. The language of this section does not explicitly differentiate between acts
committed against living or deceased individuals. Instead, it focuses on the
broader notion of any "carnal act against the order of nature." The law defines
"Unnatural Offences" as any voluntary carnal intercourse, contrary to the
natural order, involving a man, woman, or animal. The absence of specific
references to the person's vitality in this section warrants a more
comprehensive analysis of the legal implications.
The Two Perspectives:
In this context, it is essential to consider two perspectives: the actual
definition of the law and the objective of the act. In the case of Navtej Singh
Johar v. Union of India, the Supreme Court of India ruled that the phrase "order
of nature" in Section 377 should not be based on popular perceptions or societal
prejudices. The court stated that it must be interpreted in a manner consistent
with constitutional principles, individual rights, and the evolving
understanding of human sexuality.
Applying this reasoning to the present scenario, it is evident that rape
committed against a dead body is in no way consistent with the order of nature.
Therefore, the court should punish the accused under Article 377. However,
considering the objective of the act, which originated during British colonial
rule in India in 1861, it is important to note that it criminalized consensual
sexual activities "against the order of nature," including same-sex sexual
activities. The term "consensual" is crucial in the objective of the act, and
since a dead body cannot provide consent, it cannot be considered a violation of
Section 377 of the IPC.
In conclusion, while the objective of the act places significance on the term
"consensual," the focus should not solely rest on the entity upon which the
crime is committed. The perpetrator is the individual responsible for the crime,
while the thing or person subjected to the offense becomes the victim.
Therefore, a closer examination of the true definition, emphasizing "against the
order of nature," reveals that rape or sexual assault on a dead body violates
the customs and practices prevalent in India.
Such actions should be punishable under the definition provided in Section 377
of the IPC, as they contravene the natural order or are deemed unnatural. It is
imperative to maintain the utmost respect for deceased individuals through
burial, cremation, or other religiously prescribed rituals, which have been
practiced from time immemorial and turned into a valid custom.
Law Article in India
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