[This Article has been authored by Laavanya Jain, a 3rd year student at Dr. Ram Manohar Lohiya National Law University, Lucknow.]

Introduction

In a contemporary pronouncement, the Supreme Court of India in February 2025 rejected a plea against Karnataka High Court ruling in Rangaraju v. State of Karnataka, wherein it was held that necrophilia, i.e., engaging in sexual acts with a corpse, does not qualify as “Rape”, under Section 375 of the Indian Penal Code, 1860 (“IPC”). It was also observed that at present, India lacks an explicit provision penalizing Necrophilia. This position indicates absence of a coherent legal response towards sexual violence against the dead, exposing a deeper jurisprudential problem: Which nature of harm does Necrophilia constitute, and how can the criminal laws in India penalise violations where the ‘victim’ is no longer a living rights-bearing subject?

Accordingly, this piece attempts to supplement the existing doctrinal critiques by analyzing necrophilia through comparison of broader philosophical debates on harm, personhood and moral standing. This piece aims to articulate a coherent normative basis for criminalising Necrophilia in India.

Decoding the Existing Doctrinal Interpretation

In Rangaraju, the case involved a 21-year-old woman who was murdered on her way back from classes, following which, the accused sexually violated the corpse, prompting the question as to whether necrophilia amounts to rape under Section 375 of the IPC (now Section 63 of the Bharatiya Nyaya Sanhita, 2023 (“BNS”)). The Karnataka High Court held that necrophilia was not punishable under Section 375 of IPC because one of the essential ingredients of rape is that it must be accomplished against a person’s will, which a dead body does not possess. While the accused was acquitted of all rape charges, the court emphasized on penalizing necrophilia and maintaining posthumous dignity. 

Upholding the judgement, the Hon’ble Supreme Court held that Necrophilia does not amount to rape, as it is not a recognized offence under the existing penal legislation. Based on this decision, it can be understood that, as per the court, consensual sexual autonomy is a right exercisable by the living, leaving the rights of the dead unprotected, particularly in the absence of a separate provision penalizing necrophilia. 

While Necrophilia does not meet the essential ingredients of rape, its prosecution is attempted under Section 297 of the IPC (now Section 301 of the BNS), which criminalizes trespassing on burial places or indignity to human corpse with the intention or knowledge that such act is likely to wound the feelings of a person or insult their religion. This significantly limits the accused’s culpability. The provision is thus, structurally misaligned with the nature of wrong involved as it protects the emotions of third parties instead of offering direct protection to the deceased. Further, the quantum of punishment under this section barely justifies the gravity of the harm inflicted. This calls for an in-depth study into the constitutional and normative aspects dealing with posthumous dignity.

Constitutional and Jurisprudential Foundations

Comparative scholarship in the U.S. characterizes dead bodies as ‘quasi persons’ i.e., entities accorded moral respect between things and persons. Akin to ‘quasi property’, the term ‘quasi persons’ aims to focus on the moral personhood, which is argued to transcend death. This concept is applicable to the Indian legal framework where the protection of human dignity under Article 21 of the Indian Constitution extends beyond biological life, as recognized in Parmanand Katara v. Union of India. This anchors posthumous dignity with the existing constitutional jurisprudence.

This view further finds its grounding in the Kantian ethics, which defines ethical living as treating humans not as mere means to an end, but always an end in themselves. It is argued that the human body, even after death, retains a symbolic connection to its rational agent. Accordingly, sexual use of a corpse instrumentalizes the person, reducing them to an object of gratification. This violation essentially corrupts an individual’s enduring interests and dignity.

Dignity-Based Retributivism as a Normative Framework

Having established the moral and jurisprudential wrongness of necrophilia, the contention for criminalisation follows naturally. Applied to the penalization of Necrophilia, the divergence between Joel Feinberg and Immanuel Kant becomes especially stark:

While Feinberg acknowledges that activities such as mistreatment of human corpses go beyond “nuisances”, he classifies them as “bare knowledge” offences that primarily generate moral outrage. He contends that mere collective repulsion at a particular act cannot justify criminalisation under the offence principle, as such sense of indignation emanates from moral disgust instead of direct personal harm to the victim. Thus, as per Feinberg’s theory, there is no permissible route to penalise Necrophilia without appealing to legal moralism, which he rejects. This exposes the conceptual inadequacy of harm-based liberalism in dealing with violations of posthumous dignity, highlighting the need for a dignity-centered account.

In contrast to Feinberg’s liberal caution against punishing “bare knowledge” offences, Kantian Retributivism strongly supports the principle of lex talionis i.e., “an eye for an eye, tooth for a tooth” – not quite literally, but in the sense of proportional punishment. He appeals to the principle of equality and argues that punishments shouldn’t be less severe than what the offender deserves. From this perspective, criminalisation is way beyond collective moral sentiment; it is a requirement of justice itself, ensuring that a person’s intrinsic worth is respected even posthumously.

Prima Facie, Necrophilia exposes a structural limitation, which often assumes that punishable wrongs must correspond to experiential harm borne by a living subject, as interpreted by Feinberg. However, it is pertinent to note that harm-based accounts fail to accommodate offences where the injury is neither psychological nor physical, yet the wrongness remains intuitively severe. Necrophilia does not merely produce offence or disgust; it represents a complete breakdown of the morality of conduct, as upheld by Kant. 

Therefore, despite appearing to be the strongest counter against the criminalisation of Necrophilia, Feinberg’s offense principle simply falls archaic in light of modern-day principles on personhood and posthumous dignity.

Consequently, philosophical enquiry demonstrates that where the offense principle fails to provide a punishment model proportionate to the gravity of necrophilia; dignity-based retributivism firmly supports the need for equitable punishment proportionate to the intrinsic worth of a person, resonating with contemporary constitutional and moral commitments.

Reconceptualising Harm: The UK’s Legislative Response

While the Indian judiciary grapples with the limitations of a consent-centric framework, the United Kingdom on the other hand, offers robust legal protection against necrophilia via Section 70 of the Sexual Offences Act, 2003, which explicitly penalizes the intentional and sexual penetration of a corpse, inviting a maximum sentence of two years.

In contrast to the India’s lack of codified law, the UK model aligns well with the principles of Dignity-based Retributivism, treating the sexual instrumentalization of a corpse as a harm warranting criminalisation. It embodies an expressive-retributive logic, where criminal sanction indicates societal condemnation of conduct considered to be incompatible with the dignity of persons. Thus, by criminalising necrophilia as a distinct sexual offence, the UK framework implicitly acknowledges that posthumous dignity retains legal significance, thereby avoiding the conceptual limitations of offence-based jurisprudential models.

Conclusion

The doctrinal position of India highlights a major normative vacuum in addressing sexual violation of the dead, a harm that conventional consent-based and offence-based theories fail to adequately capture. The jurisprudential analysis demonstrates that in order to craft a legislative response that adequately reflects the gravity of the act, it is pertinent to consider the underlying principles of dignity-based retributivism, as suggested by Kant. India may draw guidance from foreign jurisdictions such as that of the UK, which explicitly penalizes necrophilia under Section 70 of the Sexual Offences Act 2003, thereby avoiding reliance on directness of an offence. This would ensure proportional punishment while affirming the constitutional commitment to posthumous dignity.