INTRODUCTION
On birth of a human being, his personality comes into existence and after his death it ceases to exist. In the eyes of law, dead person are no longer considered to be persons, they have no interests and hence they are deprived of any rights. Even the ownership of their property does not remain with them unless their successors enter upon their inheritance. Three things in which the anxiety of living men is extend after the death are his body, reputation and estate. Corpse, i.e. dead body is considered to be property of none. However, there are provisions which ensure protection to corpse in relation to its burial, reputation and estate under the Constitutional Criminal Law [IPC] and the Property Law.
Protection Provided to Dead under the Constitutional Law
The right of the dead under Indian Constitution is recognised under an ever evolving fundamental right, Article 21[1], of the Indian Constitution.
In Parmanand Katara v. Union of India[2]it was held by the Court that – Right to Life, fair treatment and dignity under Article 21 extend not only to the living person but also to his dead body, the Judgement was further extended to Ashray Adhikar Abhiyan v. Union of India[3], in which the Court emphasised on the dignity of the dead and reiterated that the right also extends to homeless deceased person to have decent cremations according to their religious customs.
Provision for the protection of dead under Indian Penal Code
Though there are no strict and clear rights given under the criminal law such as Indian Penal Code for the protection of the dead but there are few provisions which provide some of the safeguards to it.
Punishment for Trespassing on burial places[4]
- If a person commits trespass in the place of burial in any part which is dedicated for the performance of funeral rites, or as a depository for remains of dead,
- or if he offers any indignity to the body of the deceased,
- or if he causes disturbance to any person who has assembled for the purpose of performing the funeral rites will be punished with imprisonment of one year or fine or both.
To protect the property of the deceased person, Indian Penal Code punishes the persons who are engaged in dishonest misappropriation of property possessed by deceased person at the time of his death under Section 404 with an imprisonment up to three years and fine. If the accused is in fiduciary relationship with the deceased, i.e. if he is an employee or clerk, aggravated punishment of seven years imprisonment can be provided to him. It intends to punish strangers and servants who can have no right or interest in the effects of a deceased.
To safeguard the reputation of the deceased, Explanation 1 which is appended to Section 499 makes imputation to a deceased’s person punishable if the imputation would have hurt the deceased’s reputation and the feelings of his family and relatives. However, this right is of the living ascendants and not of a dead person.
Explanation under Section 503 clarifies that bringing a threat in order to injure the reputation of any deceased person in whom the person threatened is interested falls under the offence of Criminal Intimidation.
Protection under the Transplantation of Human Organs and Tissue Act, 1994
The Act guarantees a deceased person the right to protect and preserve the human organs or tissue or both; of the dead body from being harvested without his or her consent or the consent of the near relatives[5].
Earlier making a will to donate the organs was not recognised, but now a person can make a will to donate his organs, it can be either for the purpose of humanity or for research and educational purposes.
Growing incidents of Necrophilia in India
Necrophilia is a kind of psychological disorder that denotes the sexual desire, attraction, stimulation or sexual act of a person towards the corpse. Belgium physician Joseph Guislain had introduced this term[6]. Large number of cases of Necrophilia is reported every year. There are no specific provisions under it except the Indian Penal Code. In India the punishment for Necrophiliacs is provided under Section 377 for unnatural lust and under Section 297. Punishments provided under these sections are not adequate.
One recent case of Necrophilia was reported on 4th July 2020, at Palghar where a shopkeeper killed a 32 year old woman and later had a sex with her with her corpse[7].
There is a need for the specific law to avoid such incidents.
Rights protecting the property of the dead
One such law which takes care of the desire of the dead is the law of succession which allows the actions of the living to be regulated by the desires of the dead. Whatever the deceased has left behind to be distributed as gifts or which he intends to give in charity will be respected by law and enforced according to the wishes laid down in a proper document commonly termed as succession by testamentary disposition.
The body of the deceased is not considered to be property, but for the purpose of burying him, his property can be considered to be quasi- property. If the body is cremated in any public property, it is considered to be under the custody of law and hence no harm can be done to it. It is to protect it any kind of disturbance to it and the sanctity of it be preserved.
Conclusion
Through the judgements given by the Supreme Court it is very much understood that the rights of a dead are also given protection under Article 21. They too should be treated with dignity as the living persons. The National Human Rights Commission under the Chairperson, Justice Prafulla Chandra Pant, has recommended the government to enact specific legislation for the protecting the dignity and rights of the dead. There are lot of instances where the half burnt or unburnt dead bodies are thrown into the rivers, which apart from causing river pollution showcases the indignity of the corpse. During Covid-19 pandemic several of such cases were reported which are glaring examples that shows the violation of human rights of a deceased person. Hence, there is a need for the enactment of better laws to protect and uphold the dignity of the dead.
Author’s Name: Nivedita Tiwari (SRM University)
[1] INDIA CONST. art. 21,
[2] AIR [1989] SC 2039.
[3] [2002] 2 SCC 27
[4] Indian Penal Code, 1860, Section 297, No.45, Acts of Parliament (1860)
[5]The Wire, <https://thewire.in/rights/nhrc-covid-19-bodies-ganga-rights-of-the-dead> accessed on 6 September 2021
[6] Aisaville Desk, <https://www.asiaville.in/article/what-is-necrophilia-and-some-well-known-cases-necrophilia-in-india-67368> accessed on 7 September 2021
[7]The Tribune, <https://www.tribuneindia.com/news/nation/palghar-stunned-by-necrophilia-a-man-raped-womans-corpse-108480> accessed on 7 September 2021
