A critical analysis of the Jurisprudence of death

Abstract:

In this paper, I would try to analyze the legal status of a dead person and the rights which he/she would have even after his death. This particular topic falls under the head of legal personality. A living being is provided with a lot of rights and duties to be enjoyed throughout his/her life, but a dead person loses almost all his rights upon his death, including the right to his property and the right to maintain his/her tomb. But these rights are changing with the change in time and a person now has a few powers to dispose of his/her organs or body according to his will. The criminal laws of a country also provide a few protections to the body of the dead person and guarantee rights to it, such as a proper burial. Along with the criminal laws of the country, there are a few other laws that establish various privileges and rights conferred to a dead person. So, through this paper, I would analyze these laws and their impact on a dead person with an elaborative jurisprudential approach.

Introduction:

Jurisprudence is an investigation into law. It is an elucidation of the general principles upon which actual rules of law are based. A country’s laws deal with providing all the rights and rules to a living person, certain privileges are enjoyed by them, and they are provided with the right to oppose and file a case against something which he/she feels is wrong or illegal. But what happens when a person dies? Who would fight for him/her in case of any wrong, do they even have the right to oppose something, are they still given the same identity and importance as they had received when they were alive? A lot of questions revolve around this concept, unknown rights, unheard laws… In this research paper, I would try to answer these questions and dig deep into this concept to analyze the various laws which though exist are unknown to a lot of people.

According to law, a person who is dead is no longer treated as a “person”, he/she is termed to be a “thing”. A person loses almost all his rights after his death. All the rights available are available to a living person and not to someone dead. A person can’t use any property available to him/her for his tomb or grave after death. The rights available are to the living legatees and not to the deceased testator. Though a dead person becomes a “thing” after death, our laws ensure that the person gets a proper burial or cremation. A proper burial or cremation is also necessary or customary according to various religions. According to different religions, it is necessary to bury a person so that he/she can enter the cycle of an afterlife and get relived from all the burdens and duties of this life. Burial is a mark of respect, given to the dead people and their family members.

According to section 499 explanation 1 of the Indian Penal Code, any words spoken or intended to be read or through signs, it affects the reputation of a person or is hurtful to the family members or relatives of the dead would be treated as a crime of defamation and such a person would be punishable according to the relevant laws and provisions.

According to Salmond: “the personality of a person commences at his birth and ceases at his death and the laws have taken the same view. Dead men have laid down their legal personality and are now destitute of rights as liabilities. They have no interest and thus leading to no rights provided to them. They don’t even remain owners of their property after death. Even if the successors haven’t entered upon succession, a dead person would lose the property right.” According to him, the law takes notice of a dead person after death only in the aspect of three things. These things are a man’s body, reputation, and estate. Various causes have been laid down in these aspects and a detailed analysis of those would help in clearly understanding this concept.

Research Question:

1. Analyzing the various laws governing a dead person.

2. Discuss, in brief, the negative effect (if any) of any right after the death of a person.

Content analysis:

The National Human Rights Commission (NHRC) is a statutory body constituted under the protection of the Human Rights Ordinance. The NHRC is responsible for the protection and promotion of human rights. One of the responsibilities of NHRC is to uphold the dignity and the rights of a dead person. It issues timely guidelines in this aspect. The courts along with NHRC have interpreted various cases and driven to a conclusion that Article 21: the right to life, extends not only to a living person but also to a dead body. They have a right to fair treatment and disposal of the body with dignity. This was interpreted by the Supreme court in the case of Parmanand Katara vs Union of India. The law also focuses on honoring the last wishes and protecting the interest of a decedent.

The issue of improper burial took a strike during covid when various media houses reported mishandling of dead bodies of covid patients as well as people dying through natural death.

After understanding the importance of proper burial, I will now move on to analyze the different laws and rights of a dead person. One of the questions which arise after the death of a person would be the enforceability of his/her will. A will is a document that expresses a person’s wishes, as to how his/her property must be distributed among the heirs or anyone else after their death. For the will of a person to be legally valid, it must be written in favor of a legal person only. If the will contains anything for self or something to be shared with a person who is already dead then that particular aspect, if severable would be removed from the will.

In the case of Jamnadas vs Naveen Thakral the Supreme Court interpreted that a will of a dead person can be challenged in any court of law for a period of up to 12 years and not more than that. But the applicability of a will is forever, it can be applied at any point in time. But it is upon the discretion of the court, as to accept the long gap or dismiss the appeal.

Defamation is one other law that protects a dead person. Section 499 of the Indian Penal Code, punishes any person who tries to harm the reputation of a dead person, and such words or actions affect the direct family members or relatives. But this provision is to protect the emotions of the family members and it can’t be treated as giving a dead person the status of a juristic person. In the case of Raj Kumar Saini vs Sant Kanwar it was held that a case of defamation can be filed only by the family members or near relatives of a deceased person. This was held by the Punjab and Haryana High Court according to the provisions of Section 199 of the Code of Criminal Procedure and section 499 of the Indian Penal Code. In the case of Raju vs Chacko it was held by the Kerala High Court that the right to claim a civil liability under defamation dies with the deceased person, and the other living members can’t claim the same unless they have been defamed as well.

In the case of Asha Nagar vs Gyan Swaroop it was held by the Punjab-Haryana High Court that a claim for defamation filed by the petitioner before his death would however not be sustainable after he’s dead and such an action to claim relief would not be passed on to the legal representatives as well. All these cases prove that after the death of a person they don’t have any rights and duties and cannot be subject to punishments and compensations as well. Therefore, a person loses their legal position after death.

But does losing a legal position also entitle a person to lose his dignity? What would happen when an offense is committed on a dead body? Would the offender be punished or would he be allowed to go Scott-free just because a dead person doesn’t have any rights?

Cases of necrophilia have come before the Indian Courts but due to a lack of improper laws, they have found it difficult to punish the offenders. Necrophilia means having a sexual attraction or committing a sexual act involving a corpse. The term necrophilia originates from the Greek language where Necro means ‘death’ or ‘corpse’ and philia means ‘love’ or ‘affection’. So, the term not only includes sexual offenses on the body but would also include the cases where a person can’t let go of the body of a loved one after their death.

One of the most prominent and gruesome cases under this aspect would be the ‘Nithari serial killing case’ which went upto the Supreme Court. In this case between Surendra Koli vs State of Uttar Pradesh, it was alleged that a businessman and his servant would kill and have sex with the dead bodies. Several skulls and bodies of children were found and the punishment for all these crimes was reduced from the death penalty to life imprisonment. A lot of other cases also came into light in this aspect like the Darbara Singh or the baby killer case, Burdwan’s serial killer, and many more.

However, our laws have a very limited scope when it comes to offenses against the dead. These crimes were punished under sections 297 and 377 of the Indian Penal Code. However, as these weren’t absolute laws for the crime, the lawbreakers would find various gaps and get away with a reduced punishment. Section 297 talks about offenses committed by trespassing on a burial ground, thus it falls short when the crime is committed somewhere else. Whereas section 377 needs fulfillment of three essential conditions to be termed as a crime under that section. (i) voluntary intercourse, (ii) against the order of nature, and (iii) with any man, woman, or animal. This section also falls short in providing punishment as the first essential would always remain unfulfilled. The degree of punishment for these heinous crimes is still lagging short and this shows the fallback of the Indian laws in protecting and providing justice even to the dead bodies.

The legal status of a dead person and the Indian Constitution

In the aspect of upholding the dignity of a dead person, in the case of Parmanand Katara vs Union of India, it was held that Article 21 of the Indian Constitution which protects the right of life and liberty would not only apply to living but would also extend to dead bodies. In the case of Amrutha vs the Commissioner the Madras High Court held that the dead bodies would also have the right to privacy. And in their case privacy would include meaning letting their souls rest in peace as they have an immortal life after death. The word ‘person’ under article 21 was interpreted in the case of Ramji Singh vs State of UP by the Allahabad High Court, to include a dead person also. The rights of homeless people were also protected under this article and this was held by the Supreme Court in the case of Ashray Adhikar Abhiyan vs Union of India. The scope was increased and it was interpreted that even the homeless people would be provided a decent burial and the State would ensure full responsibility for the same. They would also ensure that the burial is done according to the religious faith of the person and follow all the proper customs and rituals.

However, the right to bury the body of any other person would rely upon the family members or the spouse of the deceased. This right could also be imposed upon the person under whose roof the person has died. The courts also protect that a dead body is not to be dug out of the grave and disturbed unless in exceptional circumstances as ordered by the courts. Digging a dead body back from the grave would cause a lot of emotional harm to the family and relatives of the deceased and thus it should be avoided and the State should ensure that no one disrupts the peace and harmony of a burial ground by digging the bodies of the deceased without any valid cause or reason. Disinterment should only happen by properly authorized officials and the general public must be prohibited from conducting any such activity, without the prior approval of the courts and the members of the family of the deceased.

Conclusion:

Thus, through the analysis conducted it can be concluded that a dead person does not enjoy the right of a legal person. He/she loses all the rights immediately after death and the laws for the deceased person are indirectly for the protection of the emotions of the family members and relatives and not for the deceased person. Except for article 21 of the Indian Constitution all the other laws protect the family members. The property laws, wills, and defamation ensure that no harm is caused to the dead person and all his wishes and desires are fulfilled. Fulfilling the contents of the will of a dead person is like a mandate and a few religions give it a lot of importance as they feel that the last wishes of a person must be fulfilled. But even then, nothing contained for the benefit of a deceased person in a will can be fulfilled and that part would be treated as invalid or void. However, through various aspects of this paper, it is evident that our country still lags in various aspects of providing sufficient remedy for the deceased. Even in the case of punishment for necrophilia, other countries like New Zealand, South Africa, and the UK have stringent laws in this aspect, and they ensure providing justice to the injured and harmed even after their death. The main aim of law should be to provide justice and to protect the innocent and thus ensuring that laws are created for crimes done on dead bodies and punishment is served the courts and legislatures should take a step and ensure that proper laws are created and justice is served to them.

Thus, through this paper, I have tried to answer the questions raised earlier and ensured their clear understanding through various case laws. Various other case laws on this aspect couldn’t be dealt with, but through my analysis, I have ensured that all the various aspects and laws are dealt with and a detailed analysis is provided.

Bibliography

Books:

Introduction to Jurisprudence, Dr. Avtar Singh and Dr. Harpreet Kaur, Fourth Edition, LexisNexis – 2006.

Jurisprudence and Indian Legal Theory, Prof S.N. Dhyani, Fourth Edition.

Journals and Articles:

How long will a Will be valid after the Death? June 26, 2021

https://esahayak.io/blog/validity-of-will-after-death/

A defamation complaint of a deceased person can be lodged only by ‘family members’ or ‘near relatives’. December 25, 2020, by Mansimran Kaur

https://www.latestlaws.com/amp/latest-news/hc-a-defamation-complaint-of-a-deceased-person-can-be-lodged-only-by-family-members-or-near-relatives-read-order

The conundrum of ‘Necrophilia’ in India: Broadening the sphere of punishment is demanded, October 3, 2021 by Rohan Mishra

NHRC issues Advisory to the Center and States to ensure dignity and the rights of the dead, May 14, 2021.

https://nhrc.nic.in/media/press-release/nhrc-issues-advisory-centre-and-states-ensure-dignity-and-rights-dead-14052021

Newspaper Articles:

The Wire: By Issuing Guidelines to Protect the Rights of the Dead, Has NHRC Rediscovered Its Potential? 16 May, 2021

https://thewire.in/rights/nhrc-covid-19-bodies-ganga-rights-of-the-dead

The News Minute: Violating the dead: Is it time India had a law dealing with Necrophilia? November 2, 2015

https://www.thenewsminute.com/article/violating-dead-it-time-india-had-law-dealing-necrophilia-35631

Case Laws:

Parmanand Katara vs Union of India: 1989 AIR 2039

Jamnadas vs Naveen Thakral and ors: 2007

Raj Kumar Saini vs Sant Kanwar: 2 December 2020

Raju vs Chacko: 2005 (4) KLT 197

Asha Nagar vs Gyan Swaroop Th.Lr: CR- 6961 of 2016

Surendra Koli vs State of U.P. Ors: 15 February 2011, criminal appeal no: 2227 of 2010

Pt. Parmanand Katara vs Union of India & Ors: 1989 AIR 2039

Amrutha vs The Commissioner: 12 October, 2018

Ramji Singh Mujeeb Bhai vs State of U.P & Ors

Ashray Adhikar Abhiyan vs Union of India & Ors: 9 January 2002, writ petition (civil) 143 of 2001

Author: Ishika Jain,
CMR school of legal studies - LLB 2nd year