Legal personality is an artificial creation of law. However, who is a legal person has been a question which we still only have muddled answers for. In the very basic sense, a legal person is considered to be a right and duty bearing unit. According to Paton, the confusion of this concept arises from the use of the word 'person' in both the legal and philosophical sense.[1] One of the subject matters in which this misconception also arises is the case of a dead person. This article explores the personhood of dead persons, the legal framework regarding the same and need for more stringent laws.

Are Dead People Legal Persons?

Throughout history, there have been two contrasting viewpoints. One side suggests that, through legal fiction, a deceased individual retains their status as a person in the eyes of the law. On the other hand, some argue that a dead person is simply an object, a lifeless body. The contentious debate surrounding necrophilia arises from this confusion in the concept of personhood. While those close to the deceased may still view them as valuable individuals, others perceive them as devoid of life, thereby depriving them of their personhood.

For dead people to hold any rights, they ought to be a legal person. What and who possesses legal personhood is another age-old debate that continues. If we consider the simplest definition, any entity that can possess rights and duties can be a legal person.[2] If we were to assign legal personality to dead people, they thus have to perform duties and can possess rights.

A dead person is not a legal person. The basic reason for the same stems from the fact that they cannot perform any duties or even be aware of the rights that they possess. For example, a cow cannot be dragged to court for trespassing one's land. Thus, the laws passed regarding animals do not give them rights because they are legal persons under the law.

How are Laws Protecting Welfare of Dead Persons Passed?

One may then wonder how laws protecting the welfare of dead persons are passed. These laws are enacted to protect the human interests that vest in the dead people. Human beings are legal persons under the law. While dead people are not, they are still cared for dearly by humans. The latter are highly protective of their dear ones and care for them even after they are dead. It goes against the wishes of the humans and thus, dead people are protected by laws enacted by humans.

Legislations in India regarding Necrophilia:

The term "necrophilia" originates from combining "necro," meaning death, and "philia," meaning attraction or sexual inclination. It refers to having an attraction and engaging in sexual acts with corpses. This serves as a testament to the unfathomable extent of human behavior. When it comes to the legal perspective, this act is considered morally reprehensible and offensive. However, the existing legal provisions pertaining to necrophilia are vague and underdeveloped.

As of now, necrophilia can be classified under Section 377 of the Indian Penal Code 1860, which deals with unnatural offences, but it is not classified as a separate offence. It is also vaguely covered under Section 297 of the IPC, 1860.

IPC, 1860

• Section 377: Unnatural offences:
  Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 2 [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.[3]
   
• Section 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 on any place of sepulchre, or any place set apart for the performance of funeral rites 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 with both.[4]

Need for Laws regarding Necrophilia:

This category of criminals can only face legal consequences for acts such as rape, murder, and potentially bestiality. However, it is important to acknowledge that they are not held accountable for violating the dignity of the deceased. This offense extends beyond the individual offender and the deceased, impacting the deceased person's family and others who have had a sexual relationship with the perpetrator.

It is crucial to safeguard the interests of the dead, protect the sentiments of the family, and provide support for those involved in sexual relations with the offender. It is essential to monitor their health due to the potential spread of diseases and infections.

While S.297 of IPC states "offers any indignity to any human corpse", the emphasis is on trespassing of burial places and religious places where the dead are put to rest. The crime of necrophilia happens at higher rates in mortuaries. However, including the word mortuary in this section would not seem right.

Conclusion:
Necrophilia is a heinous act that has been around for a long time but remains relatively unknown. It cannot be excused by claiming insanity and should be considered as serious an offense as murder. Not only does it compound the pain of losing a loved one, but it also represents a deplorable violation of the deceased. While it may be rooted in a psychological condition, that alone cannot serve as a defence.

Therefore, there should be stringent laws and severe punishments in place for such acts. Due to the scarcity of legal precedents, the understanding of this issue is further clouded. Instances of necrophilia are on the rise, with the Nithari case[5] in 2006 being a particularly gruesome and horrifying example.

While many offenders may have mental illnesses, it is important not to generalize and assume that all perpetrators fall into this category. It is crucial to differentiate between those who are truly at fault and those who require rehabilitation due to their mental health conditions. Addressing this escalating crime and raising awareness about it are pressing needs at present.

End-Notes:

• Paton, G.W. (1972) A Textbook of Jurisprudence. London: O.U.P.
• Salmon, D.J. and Fitzgerald, P.J. (1966) Salmond on Jurisprudence. Sweet & Maxwell.
• Indian Penal Code, 1860, §377
• Indian Penal Code, 1860, §297
• Criminal Appeal No(S). 2227 Of 2010