ROMANTIC NECROPHILIA IN INDIA – A STUDY ON IT FROM THE PERSPECTIVE OF LAW AND CRIMINOLOGY

What is Romantic necrophilia?

Human psychological attitude and behavior is being continuously studied, where the deviation from socially accepted norms and terms especially with regard to sexual acts is categorized and that is what necrophilia is. Also this deviation in human psychology that promotes the sexual acts will be examined here in relation to law and criminology. The term necrophilia is derived from two words which have Greek origin : nekros means death and philia means love or attraction. Simply briefing, it is a paraphilic disorder where an individual will have sexual attraction or desire towards dead corpses.

Under necrophilia categorisation, Romantic necrophilia is present, where an individual develops attraction towards dead bodies with which they will have romantic feeling, emotional closeness and desire for intimacy. Here, unlike other necrophilias, it is not of homicidal or ferocious sort, also this sub category will not involve undisguised sexual violence as well, only sleeping with the dead person, kissing and gentle caressing will be happening. In some cases due to overwhelming emotional attachment, these individuals will preserve the dead person in fear of losing their body.

Certain Indian psychologists believe this Romantic necrophilia as one of the sub categories of necrophilia as mentioned above, where this belongs to class two in which more of emotional closeness and affinity is being developed over the dead person instead of just sexual desires. On the surface, this may appear to be submissive but elevates several legal and criminological concerns as the standards, norms of the society and dignity of the dead person all gets disturbed.

Romantic necrophilia, under the umbrella of Criminology

Romantic necrophilia is not just any paraphilic disorder, but also a criminological concern as it goes against the rights of the dead person, culture, religious emotionalism and open public ethics. With regard to criminalisation, many jurisdictions across the world criminalised this necrophilia either tactfully or overtly based on its necessity and scope. Talking about that in India, there is no explicit note or definition under the Indian Penal Code (IPC), 1860 nor in the Bharatiya Nyaya Sanhita, also there’s no such offence named or titled as “necrophilia”. But, this does not mean it is completely decriminalised in India, instead other related laws and constitutional provisions are used to handle these kinds of cases based on the narrations or the facts.

For example, Section 297 of the Indian Penal Code (IPC), 1860  is being used in this regard as it deals with the trespassing on burial places and it is criminalized as it goes against the rights and dignity of the dead person and also puts down the feelings of the relatives and friends of the dead person. This Romantic necrophilia is under the scope of this section as it involves digging, picking up, touching and preserving the dead person which ultimately fulfils all the criteria to be counted as offence. As punishment for this offence according to this section, the accused can be imprisoned for a year, fined or both depending upon the escalation of the offence.

Next one is Section 377 of the Indian Penal Code (IPC), 1860 which is about unnatural offences which can be directly linked to these necrophilia cases. But upon the judgement of Navtej Singh Johar v. Union of India (2018)^[1], this section was decriminalized and thereby the same sex acts, the non consensual acts and even the acts with dead persons was also decriminalised, but necrophilia still attracts liability if this section is remotely interpreted. Lastly Section 292 & 293 of the Indian Penal Code (IPC), 1860 can also be used for the cases involving necrophilia as in some circumstances the malefactor records, displays, distributes or publishes the obscene photos and videos of the dead person.

Constitutional provisions dealing with Romantic necrophilia

Necrophilia is highly against the Constitutional provisions as Article 21 (Right to Life and Personal Liberty) of the Indian Constitution is applicable even to the dead person that is a dead person is not res nullius, preserving the rights and dignities of the deceased though there is no direct provision about postmortem handling to safeguard the dignity of the dead person. This can be ascertained through landmark case judgments such as Ashray Adhikar Abhiyan v. Union of India (2002)^[2] which gave the same statement mentioned in the previous sentence as judgment. And thus, Romantic necrophilia violates Article 21 of the Indian constitution as the dead person will be used for own’s emotional and sexual desire irrespective of taking their rights and dignities which is even applicable to a dead person. 

Indian landmark cases on this particular regard is very less as this whole topic is itself seen with lots of social stigma and also cases of this sort are not being recorded as this brings disgrace, shame and dishonour to the dead person as well as to his or her associates. Other fewer cases in this regard of necrophilia are State of Karnataka v. Rangaraju (2007)^[3] in which the accused had sexual intimacy with a woman’s corpse which is punishable under Section 297 of the Indian Penal Code (IPC), 1860 as a dead person should be given legal protection in India and even Parmanand Katara v. Union of India (1989)^[4] had the same judgement with a minor difference where State should also take steps in preventing a dead person from dishonour especially in instances of handling the dead person’s body after post mortem. Lastly, the Nithari Killings case (2006)^[5] forensic assessment brought out the need for laws or provisions for necrophilia where it mentioned there are no particular laws or provisions as of now in India though the case concern was primarily homicide. 

Romantic necrophilia at various jurisdiction

In a United Kingdom case named R v. Smith (1974)^[6]Romantic necrophilia was not counted as a directly defined offence but instead as an act that brought disturbance to the public tranquility and decency thus, it was handled through Sexual offences act. Contrast to India and United Kingdom where there is no explicit criminalisation of necrophilia, it is a crime in most of the states in the United States of America as this particular regard downgrade the dignity of the dead person, disturbs the peace of the society and also acknowledged this as a physiological disaster.

This shows that India as well require legal reforms on this necrophilia as predominantly cases of this sort are mishandled in the investigation, passively interpreted by the judiciary and often sparing punishments were given irrespective of the frequency of the offence committed. As part of its legal reforms, academicians wanted a separate part in Bharatiya Nyaya Sanhita to constitute necrophilia as offence which regulates the definition with difference of emotional and sexual desire and more strict punishments based on its frequency. This same matter of indignifying a person or bringing societal disturbance should be criminalised with respect to 42nd report of Law Commission of India.

Conclusion 

Romantic necrophilia at the very surface seems to be subtle until and unless it is being studied deeply where it is not only bringing disgrace to the dead person but also to the dead person’s associates and the public tranquility as whole. Though India does not have any proper legislation on this, mostly Article 21 of the Indian constitution and Section 297 of the Indian Penal Code (IPC), 1860 deals with the investigation and prosecution of this necrophilia as dignity transcends the dead. As crimes of sexual nature are escalating in this modern era, to punish the same we need a codified law in the Indian criminal law because a mere judicial interpretive method will not help as it requires uniform handling of these sensitive matters and paraphilic disorder of this sort.

References 

1. Article 21 of the Indian constitution
2. Section 292 & 293 of the Indian Penal Code (IPC), 1860
3. Section 297 of the Indian Penal Code (IPC), 1860
4. Section 377 of the Indian Penal Code (IPC), 1860
5. 42nd report of Law Commission of India
6. https://www.scconline.com/
7. Wikipedia

^[1] Navtej Singh Johar & Ors v Union of India (Supreme Court of India, Writ Petition (Criminal) No. 76 of 2016, 6 September 2018) AIR 2018 SC 4321, (2018) 10 SCC 1.

^[2] Ashray Adhikar Abhiyan v Union of India (Supreme Court of India, Writ Petition (Civil) No 196 of 2001, 18 January 2002) (2002) 2 SCC 27.

^[3] State of Karnataka v Rangaraju (Karnataka High Court, Criminal Appeal No 2170 of 2005, decided on 5 June 2007) 2007 Cri LJ 3186 (Kant).

^[4] Parmanand Katara v Union of India (Supreme Court of India, Writ Petition (Civil) No 270 of 1988, 28 August 1989) AIR 1989 SC 2039.

^[5] State of Uttar Pradesh v Moninder Singh Pandher and Surendra Koli (Supreme Court of India, Criminal Appeal Nos 1237–1238 of 2012, 16 October 2017) (2017) 16 SCC 620.

^[6] R v Smith [1974] QB 354 (CA).