Definist Fallacy
In a matter proceeding before the High Court, Mumbai, it was opined, “expanding minor`s anus by hands, pouring liquid into it, not carnal intercourse.”
Justice Bharati H Dangre noted that unnatural offences under Section 377 of the Indian Penal Code (IPC) involved penetrative sexual intercourse. The HC granted bail to the accused on the condition that he should not establish contact with the girl or her family. It also asked the man to cooperate with the probe and report to the police station every Monday.
“What would amount to an unnatural offence is not defined, but as indicated in Section 377, whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, is liable for punishment under the said Section,” Justice Dangre noted, adding that the “grave offence” can invite imprisonment up to 10 years.
She added, “Carnal intercourse in Section 377 is clearly distinguishable from sexual intercourse as defined in Section 375 (rape) IPC… Carnal knowledge is an archaic or legal euphemism for sexual intercourse but the modern statutes like the POCSO Act apply the term ‘sexual penetration’… It would at the most, indicate that as per Section 377, only the penal vaginal sexual intercourse is natural and all other forms of carnal intercourse such as anal or oral are unnatural.”
“The alleged act of expanding the anus by hands and pouring some substance into it, prima facie cannot be said to be covered in the term carnal intercourse, which necessarily must involve… the flesh or sensual pleasure.”
As is evident, Justice Dangre has erred. The Judge could have easily relied on the broader understanding of ‘Unnatural Offence’ to include pouring in of water inside the anus as she herself states, “what would amount to an unnatural offence is not defined” meaning that there are no limitations on what an Unnatural Offence can be. Section 377 is merely indicative. The judge should have appreciated that words such as carnal intercourse, anal or oral are only an indicative list and not an exhaustive list of Unnatural Offences.
The Judge has succumbed to the Definist Fallacy and persuasion of accused. In a Definist Fallacy, a definition is portrayed in a way to be advantageous to oneself. The accused persuaded the definition under the POCSO Act.