Rights of a Dead Person

Rights of a Dead Person

INTRODUCTION

A living person on earth has innumerable rights provided by all types of law. The Indian constitution guarantees various fundamental rights along with International Covenant on Civil Rights and Political Rights 1966(ICCRP), International Covenant on Economic, Social and Cultural Rights 1966(ICESCR) provides various human rights namely right to life (article 6), right to liberty and security (article 9), Right of detenue to be treated with humanity (article 10), right to recognition as a person before law (article 16), Right to marry and found a family (article 23) and right to privacy. Although all these rights are not absolute and are subject to certain restrictions.

The living person has number of rights from his birth but the dead person has right in macro sense in two main areas:

  1. Crime against the corpse
  2. Disposal of their bodies

LEGAL STATUS OF A DEAD MAN

Ordinarily, the personality of human being is said to commence when he exists on earth and ends as soon as man dies he cease have legal personality.  A dead man is not considered as a person in the eye of law. He cannot be treated as legal person. A famous legal maxim “Action personalis moritur cum persona” means action dies with the death of a man. A dead man ceases to have any legal right or bound by any legal duty because he cannot perform any rights.

Yet, law to some extent, recognizes and takes account of the desires or intentions of a dead person. Law ensures a decent burial, it respects the wishes of the deceased regarding the disposal of his property, protects his reputation and in some cases continues pending action instituted by or against a person who is now deceased.

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INDIAN LAWS CLASSIFYING DEAD

As far as a dead man is concerned criminal Law the Indian Penal code, 1860 provides very limited areas for “Offences against the dead person”. Section 297 of IPC is relevant in this context:

  • 297.Trespassing any burial places: Whosoever, commits trespass in any place of worship, or any place of sepulcher(burial), or any place set for performance of funeral rites or offers any indignity to any human corpse, or causes disturbance to any person assembled for the performance of funeral ceremonies shall be punished with imprisonment of either description for a term which may extend to 1 year or fine or both. Thus, the essence of liability under this section depends upon the intention or knowledge of likelihood of wounding feeling or insult to religion and when with that intention or knowledge trespass in place of sculpture indignity to corpse or disturbs a place of religious worship or funeral ceremonies is committed the offence is complete.
  • The criminal law provides that any imputation against a deceased person, if it harms the reputation of that person if living and is intended to hurt the feeling of his family or the relatives of deceased, shall constitute the offence of defamation under sec 499 of the Indian Penal Code. Right to reputation is the facet of article 21. The reputation is also protected and penal charges can also be initiated for harming the reputation of dead person.
  • Right to privacy is an element of human dignity and the privacy of deceased person shall be guaranteed under the constitution.
  • Section 404 of the IPC recognizes dishonest misappropriation of property possessed by deceased person at the time of his death as an offence. This section is meant to afford protection to the property of a deceased which under the circumstances needs special protection.
  • Section 503 of the IPC which defines criminal intimidation, includes threatening a person with injuring the reputation of a dead person dear to him, as an offence.
  • A living person has a right to protect his dead body from being destroyed, wasted or its organs to be taken out, except by the consent of the person, when he was alive or on the consent of his kith and kin or if the body is unclaimed, under the Transplantation of Human Organs Act 1994.
  • The Indian Succession Act 1923 provides for the execution of the will of a deceased person.
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JUDICIAL PRECEDENTS

Right to dignity is extended even after the death of a person, as it is being cleared from the following precedents set by the Hon`ble Supreme Court of India.

In case Pt.Parmanand Katara Vs. Union of India[1]  it was observed, “We agree with the petitioner that right to dignity and fair treatment under Article 21 of the Constitution of India is not only available to a living man but also to his body even after his death”

In Ashray Adhikar Abhiyan Vs. Union of India[2]  the Supreme Court had upheld the right of a homeless deceased to have a decent burial as per their religious belief and the corresponding obligation of the State towards such people.

PROPERTY RIGHTS

Ordinarily, property rights doesn`t exist in a corpse. For the purpose of burial,the corpse of a human being is considered to be property a quasi- property, the right to which are held by the surviving spouse or in case of no spouse, next of kin. Following burial, the body is considered part of the ground in which it is placed.

CRIME AGAINST THE CORPSE- NECROPHILIA

Thanatophilia’ or ‘Necrolagnia’, necrophilia is an ailment of sexual attraction to corpse. It is a pathological fascination with the dead bodies, and which forms the desire or excite that person to engage in sexual intercourse or any sexual activity. This is a heinous, inhuman act is prohibited by law in various countries. Indian laws are silent or vague in regard to such barbarous crime as it is noted “sex with corpse” is explicitly not stated in Indian Penal Code, 1860. The person shall be convicted under section 377 and 297 of the Code. There is no explicit law that says about offences against dead ones.

It is because of this void in our penal law due to which in Nithari case the, Mohinder Singh a rich business and politically influential man and his cook Surendar Koli, the two accused were not punished for necrophilia. Since there is necrophilia is not a crime in India, no case can be registered against the person for having sex with dead. Recently in May 2020, a 50 year old man sexually assaulted a body of a 14 year old girl who was dug out of her grave. In the absence of legal provision in regard to dead bodies, such act would not be officially termed as an crime .

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[1] 1995 (3) SCC 248

[2]AIR 2002 SC 554

Author: Akriti Mishra,
Veer Narmad South Gujarat University, Surat, 2nd Year Law student

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