This Article is written by Sneha Solanki, pursuing LLM from Faculty of Law, University of Delhi
Abstract:- Life and death both equal phenomenon in the world. A person has natural, civil and political, etc. rights in his lifetime but there is also the dignity of the person remains alive even after the death of the person. So that as a state acts like a parent or guardian of the citizen, and in the case of a stateless person, he has natural rights so that the state makes laws for the protection of the rights of the dead body. In India, The Constitution, IPC, etc. protects and provisions of the offenses against the dead body.
“Live with dignity, die with dignity.” Life is a unique phenomenon. Still, in the wake of the progress of science, nobody could decode life yet. Everything is like an illusion, weaves around it. Whether is it a natural state or nature of state everything is revolving around the phenomenon of life. The human has a basic tendency of how to survive, the instincts of survival are imbibed in human nature. Since barbaric society to the modern civilized society human as a being is continuously learning to manage and makes better the life gradually. That is why the concept or can say as an abstract institution “the state” has come in the scenario and now state which was the means to establish and systemize the life, but gradually life of the human being became the means. There are natural rights that are inherent to human survival. As famous western philosopher Locke says about three kinds of natural rights these are right to life, property, and freedom. Also, in the ancient philosophy of India, the right to life is a fundamental natural right. And in the modern era, different types of forms of government defines and expands the right to life.
Now, this is the point where penal provisions for offenses against the body emerge. There are many penal laws regarding the protection of the human body from offenses in various countries as their adaptability. But here the question arises, whether a human has these rights when he is alive or he only deserves dignity when alive not after that. If a living being has a right to protect his body then why should not a body of a dead person has the right to dignity. The dead person must have an equal right to protection like a human as a being. Since the ancient era whether in western or Indian history the dead body of a person has dignified last funeral rights. And now in the modern era, State in a parens patriae character has obligations to protect not only the rights of a living being but also obligations to protect and ensure the rights of a dead person.
But in the current scenario, we can see the various kinds of offenses against the dead body. There may be many conflicts because of various ideologies regarding the offenses against corpses like for some this is not an existential issue and for some, this issue is, directly and indirectly, connected with civil, constitutional, and natural rights. Here we can analyze the various kinds of offenses against the dead body and its maintainability in the penal laws.
THE ANTHROPOLOGY OF THE NECRODELICTUM
Before analyzing the concept of the offenses against the corpses, we need to first understand the perspective regarding the dignity of the dead body and dead person in various cultures in history. Different continents have different cultural aspects like western philosophy, medial east, Indian continent, and eastern philosophy. Broadly we can study anthropology based on the abovementioned divisions. In western ancient history, there has been a rich past not regarding culture but also a great political philosophy and the idea of the state. Especially the Roman culture has signified culture regarding the rights of the dead person.
NECRODELICTUM: - Concept and Scope
The word Necrodelictum is the combination of the two Latin words, where ‘necro’ means ‘dead body’ and the ‘delictum’ means ‘offence’ or ‘wrong.’ That means the offenses against the dead body. In simple words, like every human being has the right to be protected his body, similarly the dead body of a person also be protected. There are many kinds of offenses that affect and injured the dead body of a person similar to the body of the living person. So that the dead body must have the similar rights of the living being against offenses like provided in the penal provisions of the Indian Penal Code,1860. For example, Section 297 about trespassing on burial places, Section 404 about dishonest misappropriation of property possessed by a deceased person at the time of his death, and Section 377 where the unnatural sexual offenses are also connected with sexual offenses against the dead body. In the Indian Constitution Article 21 has also been expanded by the supreme court where the dignity of the dead person and dignified last rights of the dead body have been recognized in the various landmark judgments like Parmanand Katara Case and Francis Coralie Case.
VARIOUS OFFENCES AGAINST DEAD BODY
There are various rights has recognized by the state in India for dead body and penal provisions for offences against the dead body.
Dignified Last Funeral and Burial Rights
Under section 297 of the Indian Penal Code,1860 is for the protection of the dead body from being trespassed and disturbed. In the section, the trespassing in any place of funeral rites or as a depository for the remains of the dead, is legally punishable offence. There are also the creating of any disturbances or offering any indignity to human corpse is a punishable act. This is a purely direct provision for protection of the dead body and dignified last funeral rites of the dead person. This is a specific offence regarding right to peaceful and dignified funeral rites of a dead person without any wrongful disturbances.
Misappropriation of Property Possessed by The Dead Person
We have in the Indian Penal Code,1860 protection of the property is not only for the living body but also for the dead person who has possession of the property. Under Section 404 is specifically provided the protection and penal provision offence against misappropriation of the property which may be in the possession of the dead person. This explanation of the provision that the dead person at the time of the death having possession of the property (moveable property), if that such property being dishonestly misappropriates or converts to his own use property with knowing the fact that that property is not legally entitled to him and relates to the dead person. This is a punishable offence for a term up to 3 years imprisonment and fine in the general case but the maximum punishment of 7 years in the case of the offender is a servant, clerk or employed by him.
NECROPHILIA - SEXUAL OFFENCE AGAINST DEAD BODY
This is very unnatural and psychological disorder-based offence, where an offender commits sexual offence on the dead body. The term Necrophilia means Necro means dead body and philia means love and attraction. But in simple clear terms the it is an act of by a person who has unnatural lust towards a dead body to make sexual relationship with a dead body. In other sense, this term can be used for the rape on dead body. The term has coined by the Belgian Alienist Joseph Guislain in 1956. This is not an expressed or specific offence in the India, but it is somewhere falls under category of under section 377 of The Indian Penal Code,1860 where unnatural offences have defined. The section says that the carnal intercourse against the order of the nature with any man, woman, or animal is a punishable offence. Here we can notice that the sexual intercourse with the dead body is not specifically mentioned but the “carnal intercourse against the order of the nature” is implicitly mentioning the sexual offence against the dead body. The Supreme Court in the case Nithari Case also explains the same section in the given context.
In the United States of America, the statute on the rape against the dead body is enacted in the year of 2003 as Sexual Offences Act,2003 under section-70 clearly addressed the same offence.
Attempt under section 511 with the theory of attempting an impossible act : When a person attempts to crime which in actual is not possible to commit because the person is not conversant with the circumstances of the crime. And an attempt to commit an offence is possible even when the intended offence is impossible to commit. The crucial test for determining as to whether he has crossed the stage of preparation, it seems, is overt act that manifests his intention to commit the intended offence.
It is concluded that the offence against dead body is not still a specific offence, there is need to be more intensified the research in the concept Necrodelictum and to make specific laws on it. In these days ,we can observed how the dignity of the dead person is being attacked.
Likewise, how people whether in the form of ‘dharna- pradarshan’ or protest use dead body in the form of protest or how the media widely commenting on the dead person. So that the state needs some strict and more specific laws related to the offence against the dead body. In crucial period of corona pandemic, the violation of these above discussed rights of dead body became one of the great issue in legal as well as human rights platform. There is no specific statics of government about infringement of the last right according his or her religious beliefs of a dead body. Also, in Ganga River a number dead bodies have found. Here, the question must arise whether these dead bodies have right to dignity or not. If yes, who should come forward to address the issue where State is silent on the matter life.