The Criminal Justice System is dynamic in nature. As a result, it becomes a task to cope with new situations that may arise in our society. It faces the questions on the abstract concept of what is evil and how the justice system must weed out the same. What is essentially immoral can be relative and subjective term, having said that, what can never be undermined by the individual, is the common dignity of the society. Anything contrary to what happens to be generally accepted and not against the common-good, dignity of the society, ought to be classified as spiteful, and thus: evil/immoral.
Our courts have adopted the objective test of what 'shakes the collective conscienceof the society', and have been able to take steps further, in analysing the natureof evil in others, so as to balance the individual and societal interests.Essentially, 'the societal interests help shape the scope of the principles offundamental justice'.
The change in rape laws after the Mathura Case, the disgust brought about as a result of the barbaric facts of the case of Darbara Singh ('Serial Baby Killer'), the rarest of the rare case of Nithari Killings, and the hue and cry post Nirbhaya's case; are evidence to the fact that changes, sometimes are a result of unprecedented acts, subsequently capable of being well-classified as offences. The authors seek to highlight the need and importance of criminalising one such act, which has escaped the limits of the law from quite some time –the act of committing sexual intercourse on the dead – 'Necrophilia'. More precisely, it is defined as 'the fascination with death and the dead' or 'an erotic attraction to the corpses'.
Professedly, the case of Darbara Singh and the Nithari Killings, were barbaric in nature, not only because of the number of murders involved, but also because of the manner in which the offences were committed. The miscreants went on to the extent of committing sexual intercourse on the dead bodies of young children (who were killed by them). Nevertheless, the penal laws could not punish the accused insofar as the act of sexual intercourse on the dead was concerned as there was (and still is!) no legal provision dealing with such acts.
The Indian Law; classifying the acts related to the Dead
The vacuum in the law is such, that the Indian Penal Code, 1860 (IPC) provides for very limited areas to cover 'offences against the dead'. Section 297 is relevant in this context:
"297. Trespassing on burial places, etc. – Whoever, with the intention of wounding the feelings of any person, or of insulting the religion of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted thereby, commits any trespass in any place of worship or of any place of sepulchre, or any place set apart from the performance of funeral rights or as a depository for the remains of the dead, or offers any indignity to any human corpse, or causes disturbance to any persons assembled for the performance of funeral ceremonies, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine or both."
Thus, anything as a result of trespass on burial places etc., which hurts the feelings of any person, is ought to be made punishable (so as to safeguard the interest of the living, and resultantly, of the dead); and that a human corpse has some kind of a dignity (hence the use of the word 'indignity' in the section itself). Reliance can further be placed on the laws of defamation, wherein the dead can be defamed, if the statement concerned, intends to hurt the feelings of his family or a near relative.
Section 297 in the IPC or for that matter section 377 of the IPC (by using the words 'unnatural offences) does not address the 'offence' of necrophilia. Neither does it fit in tune, with the changing notions of crime in the society – where on one hand the dead are revered, and on the other hand, they are not even secure qua their resting state.
The position of the dead, may further be argued in the light of Article 21 of the Constitution of India. The interpretation of Article 21, is yet again expanded by the Supreme Court wherein the right to life has been extended not only to the living but also to his dead body. As a result, ipso facto, the definition of 'person' as contained under the IPC ought to include a human corpse as well. To further establish the sanctity attributed to the dead, the Madras High Court has observed that a dead person, undoubtedly has a right to privacy. 
The last words of the Dead
The cogency of the last words of the dead, is accepted in evidence by the Indian Law. Sub-section 2 of section 32 of the Indian Evidence Act, 1872 creates an exception to the hearsay rule, by admitting the statements of the dead (or those who cannot be found/are incapable of giving evidence), 'as relevant' (if they abide by the rule of 'res gestae'). The width and contour of the statements (legal declaration, to be precise!) of the dead, is further expanded by giving effect to his Will through the laws of succession. The question before us, is, whether or not these instances give rise to the concept of posthumous rights: if yes, can the definition of "rights" be expanded and answered in the sense of who 'actually' can be a legal-right holder?
The concept of Brain Deaths
Another aspect to consider, is the neurological criteria of defining death which evaluates a series of criterion, giving way to the person being called legally dead. The presence of an irreversible coma, cessation of spontaneous respiration (with the help of Apnea Test), amongst others; are the pre-requisite conditions which are checked and adhered to before declaring a person as brain-dead or legally dead.
The effects of brain deaths are directly proportional to the legality involved. In other words, the legislation which comes into effect thereafter, is what needs to be looked into i.e. the Transplantation of Human Organs (Amendment) Act, 2011 (THO). This is where the responsibility of the medical practitioner comes in, and consequently, the human organ or tissue, is removed from the body. By virtue of sub-section (e) of section 2, of the THO, a brain-stem dead person is a "deceased person", signifying that there is a permanent "disappearance of all evidence of life". Further, the provisions of the THO provide for seeking of an authority from either the near relative, or the person in-charge of the deceased. A mention of deaths of persons below eighteen years, and who is an authority thereof, is also covered under the THO. Looking closely into the objects and reasons of the coming into effect of the THO in 1994, and the intent of the legislature, it would be apt to comment that the idea was to keep a check on the handling of the dead bodies. Resultantly, organ transplantations, particularly of the dead, are therefore, illegal (without the consent of the person before he dies, or of an authority as mentioned under the THO). Nevertheless, the concept of brain-deaths is not greatly appreciated (even though there is a need to popularise the concept); per contra, it may be said that death, to human-mind may be more than a certification from the concerned medical practitioners.
Often times, the callousness of the ones in-charge of the dead bodies in the mortuary, costs nothing to them as there is no law for the same. Even during the current COVID-19 situation, the defiling of the bodies of the dead, is a common phenomenon. Again, do dead bodies and their protection thereof, remain a question of mere ethics?
Necrophilia: tracing it through time
Rossman and Resnick (1989) highlighted "the most common motive of the true necrophiles was to possess an unresisting and un-rejecting partner."
Reference to necrophilia may be drawn from historical art and literature. The ancient Egyptians were engaged in embalming the dead, for it was their belief in after-life. Herodotus, a Greek writer, wrote much to prevent any indignity to the dead. The bodies were not given in for embalmment soon after the death, rather they were kept for three to four days as they 'feared desecration and necrophilic sexual abuse'. The modern culture also, does not leave the idea behind: necrophilia continues to be a loud theme, highlighted through art and literature. This surfaces one of the very dark sides of human nature, and it remains a time-worn reality.
The mythological stories of the Greek, fascinate us with the bizarre acts of both humans and the gods. The resurrection from the dead, so that Horus may be born out of the sexual intercourse between Isis and her dead brother (necrophilia and incest), is just an instance amongst many, where the ideas of morality were still being discovered.
Even today, a few who walk among us, are depraved to the extent that they obsess over the dead; the aftereffects of the same must be considered in light of the Indian scenario. At the very outset, the authors have mentioned the incidents that have been associated with sexual activity with the dead. In 2015, the body of a 26-year old woman was found outside the grave; it was raped by three men in Ghaziabad. Recently, in May 2020, a 50-year old man (in Arunachal Pradesh) was arrested on the allegations of sexually assaulting a body of a 14-year old girl, who was dug out from her grave. In the absence of a legal provision, the trend is to charge such miscreants of a lesser offence. How can an act like necrophilia, be excluded from the web of the criminal justice system of India?
However, even in the common law, the recognition of the act of necrophilia, is of a recent origin. The reason attached to the exclusion, or why necrophilia is not treated like other sexual offences, is the taboo attached to the offence. Even the British, as per Criminologist, Dr Jason Roach, were cocooned within the fear and embarrassment of sexual activity with the dead body.
Emulating other nations
- The United Kingdoms – it was Jimmy Savile, who examined the academic issues and claims concerned with necrophilia as there was an ambiguity regarding whether necrophilia must be considered an offence. The legal position before the Sexual Offences Act, 2003, was based on the same idea that Indian law may want to retain itself with i.e. the dead cannot give consent. Subsequently, section 70 of the Act of 2003 criminalises a person for 'sexual penetration of a corpse'. A bifurcation in providing punishment on summarily and indictment basis, is provided – the maximum imprisonment not being beyond 2 years.
- Australia – the criminal liability to anyone who commits an act of necrophilia, is well-established by section 214 of the Criminal Code of Western Australia, though it does not mention the word expressly: an imprisonment of 2 years is provided for.
- New South Wales – the Crimes Act 1900, addresses necrophilia separately: Division 11, wherein any act of indecent interference with the dead body, inter alia, extracts a punishment of two years.
- France –the French Penal Code punishes the persons guilty of necrophilia with an imprisonment of 1 year and a fine up to 15,000 euros. An interesting noting is that the offence is categorised under the head "affect on integrity of a corpse". This ought to bring the reader to the primary statements of the authors, wherein arguments are made with regards to the dignity of a human corpse.
There can be an argument that the necrophiliacs have a mental condition which needs to be treated with, and therefore, they must not be sent into the rigours of criminal law, but an offence is an offence subject to all just exceptions. It is for the law makers to think deeply into this.
 Vanessa A MacDonnell, 'R v. Sinclair:
 Tuka Ram and Another v. State of Maharashtra, 1979 AIR 185.
 The State of Punjab Prosecutor v. Darbara Singh, Criminal Appeal No. 138-DB of 2008.
 Surendra Kohli v. State of U.P., SLP (Cri) No. 608 of 2010.
 Mukesh and Another v. State for NCT of Delhi, SLP (Cri) Nos. 3119-3120 of 2014.
 Webster's New World Dictionary 950 (2nd Ed. 1970).
 Raju v. Chacko, 2005 (4) KLT 197.
 Paramanand Kataria, Advocate v. Union of India & Another, (1995) 3 SCC 248.
 Amrutha v. The Commissioner, W.P. No. 33762 of 2017.
 Anant Dattatray Dhanwate, 'Brainstem death: A comprehensive review in Indian Perspective', https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4166875/.