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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.

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