Revision of section 497 IPC,1860 : Trespass to burial sites
Trespass to Burial Sites is one of the litigated sections of the Indian Penal Code among the tone of jurisprudence, it is important to recognize the meaning of the section and feasibility of its application for trying it as an offence.
Section 297 of the IPC is a cognizable offence, non- compoundable and bailable offence. Trespass means any brutal or injurious act, committed in a place of worship with such intention or knowledge as defined in Section 297. When a person had a sexual connection inside a mosque, they were offenders under Section 297. The crux of Section 297 is an intention, or knowledge of likelihood, to wound feelings or insult religion and when with that intention or knowledge trespass on a place of sepulcher, indignity to a corpse, or disturbance to persons assembled for funeral ceremonies.
Apart from the act, the place where the offence is committed is establish within the provision which shows the background of the provision by giving the context of the provision i.e. that the act should be in accordance to the:
• Place of worship
• Place of sepulchre
• Place set up for conducting of the funeral rites
• Place that acts as a depositor of the remains of the deads
• Offers any humiliation to any human corpse
• Place where people assembled for conducting the funeral ceremonies and thereby causing the disturbance.
Meaning of Sepulchre is related with the church consortium and is called the Church of Holy Sepulchre and traditionally known to have the site of Jesus’s execution and burial thereof.
The position of the dead bodies generally in the Christian custom is regulate in the burial sites and places where there is a mere depository. The Christian faith has that the church of sepulchre is based in the old city of Jerusalem around 336 CE and only the people with the Christian faith can enter into the service of Jesus. The criminalisation of the act to enter the sepulchre and sin any religious feelings or the person’s worthiness under the offence.
The word trespass is mentioned under IPC in Section 441, but it is used in respect to any activity carried on to kill or injured a person by entering into his/her premises without any authority and having the intention and knowledge of causing the hurt with the act. The trespass in this section does not have any special reference as the very deluge of the private property at a given instance do not constitute trespass.
The entry into the property should be to cause any interference of the religious beliefs of the person or any of persons’ worthiness.
The only exception to this is the leave and licence of the possessor as then the land will be converted to the will and whims of the possessor. However, the land if used primarily for the burial purposes then the same cannot be converted to any land for any other purpose like farming etc.
The basics difference between the trespass of the criminal nature and the trespass to burial sites. It is noted that the Trespass of criminal nature is defined under Section 441 of the IPC which initiate the continuance of the offence of trespass to vexation and other things, including the insult to any person whereas the trespass to burial places occurs when there is a state that person is insulted but also includes the extent of causing the hurt to the religious sentiment.
That in aggregate means that some trespass to burial site includes the acts of the criminal trespasses but that is not essential to prove the offence as rehearse by the Allahabad High Court in Ram Prasad v. State
India secularism is the reason for the state to have no religion and a unbiased law that saves one religion to interfere in other’s religious rights. Although by the ethic of the Article 25, the religious persuasion and its individual have a right to declare their religion in the regard to the Clause 2 of the Article 25 the state cannot exercise the law in the respect of the many other central law that is binding on all the remaining people.
Thus, a person cannot do any act that is opposite to the chapter of the offences of the religious nature as they tend to end up insulting the religion of other people in the wake of the initiate the other class of people or intentionally annoy the people belonging to the other class. The main purpose of the chapter is that the person is entitled to keep his/her faith under the constitutional right but it should be in observance to the rights of the other religious person.
At the time of the formulate of the offences under this particular part, the framers stated their intention as the principle on which the governments should act but without departing from the risk of dissolution of the society. The concept is that every man should be suffered to avow his religion and no man should suffer at the insult of another’s religion.Even though the trespass is a word that is a part of the tort jurisprudence that attached with the burial places make provision special offences.
The importance of the section is to declaration the crimes that take place in the furtherance of the trespass like Necrophile or any other offence like a anomaly of the dead bodies which are not being punished in India as far as now and the provision for them is to be maintained and the section of the trespass should be altered from mere trespass to the burial or funeral sites to the aftermath of the buried bodies underneath the ground. This would help the criminal legal system to be more secular towards the access of the victim as the crimes that might be committed by a certain denomination can vary in anxiety and frequency with the unequal division of the religion in various areas of India.
Author: Prashanshu sharma,
Lloyd college and 1 year / law student