CONSENT BURIED ALIVE: NECROPHILIA AND THE LEGAL VACUUM UNDER THE BHARATIYA NYAYA SANHITA

Necrophilia, commonly understood as a paraphilic attraction to or engaging in sexual acts with a corpse constitutes a grave violation of the dignity traditionally accorded to individual's remains after death. Historically, the India criminal framework under the Indian Penal Code 1860, did not recognise the concept of necrophilia as an independent sexual offence. Instead conduct involving the mistreatment of the corpse was addressed only indirectly through the provisions relating to trespass in burial places or indignity to human corpses. These provisions were primarily intended to safeguard public order and religious sentiments rather than to address the sexual violation of the deceased. The enactment of the Bharatiya Nyaya Sanhita (BNS) 2023 was expected to mark a significant step in modernising India's criminal law by replacing the colonial era penal code. However, despite restructuring and expanding the framework of sexual offences, the BNS continues to remain silent on sexual violations committed after death. The existing statutory scheme relies heavily on the concepts of bodily autonomy and consent both of which presuppose the presence of a living individual capable of exercising such autonomy. As a result, sexual acts committed upon a corpse fall outside the scope of offences such as rape or sexual assault creating a gap within the legal framework. This paper critically examines the doctrinal limitations of both the IPC and the BNS in addressing the concept of necrophilia. Through doctrinal and comparative analysis of legal approaches in other jurisdictions this study highlights the continuing legislative lacuna and argues for the introduction of a specific statutory provision that explicitly criminalises necrophilia as a distinct sexual offence within the Indian criminal law framework.