From Colonial Law To The BNS: Necrophilia And The Unresolved Legal Gap In Indian Criminal Law
- IJLLR Journal
- 46 minutes ago
- 2 min read
Hanslata Rastogi, B.A. LL.B. (Hons.), Central University of South Bihar Gaya
ABSTRACT
The transformation from the Indian Penal Code to the Bharti Nyaya Sanhita, 2023 (“BNS”) was popularized as an opportunity to move from the colonial laws and modernize Indian Criminal Law. Yet the recodification has reproduced, almost verbatim, a colonial- era lacuna: the absence of any provision that specifically criminalizes sexual acts committed upon a human corpse (necrophilia). Indian courts continue to rely on section 297 of the IPC (now section 126 read with the corpse- indignity provisions of the BNS) a trespass-and-indignity provision drafted for grave desecration and vandalism in order to deal with an offence that is, in substance, a species of sexual violence. This article critically examines whether necrophilia is presently punishable in India, whether the extant provisions are doctrinally and practically adequate, and whether the constitutional guarantee of dignity under Article 21 extends to the deceased. Employing a doctrinal methodology, the article synthesizes Indian statutory material, constitutional jurisprudence on posthumous dignity, and a comparative survey of the United Kingdom, Canada, the United States, New Zealand, South Africa and Georgia, alongside academic literature on the subject, including recent Indian law-review scholarship and the seminal American analysis in Defiling the Dead: Necrophilia and the Law. The article finds that India's reliance on "indignity to a corpse" provisions is conceptually mismatched with the sexual character of necrophilic conduct, that comparative jurisdictions have converged upon express, sui generis offences, and that the constitutional jurisprudence on posthumous dignity read through cases like Parmanand Katara, Ashray Adhikar Abhiyan and the broader Article 21 dignity jurisprudence that furnishes a sound normative basis for legislative reform. It concludes by proposing a specific penal provision, modelled on comparative best practice but adapted to Indian constitutional values, together with allied evidentiary and procedural reforms.
Keywords: Necrophilia; Bharatiya Nyaya Sanhita 2023; Article 21; posthumous dignity; corpse desecration; comparative criminal law; sexual offences; legislative vacuum.
