SC Judgment on "Vagueness of Law" and its applicability on "Draft Intermediaries Guidelines"

Sometime laws/rules are poorly drafted with little clarity, i.e they are vague. Vagueness of such laws/rules can jeopardize the liberty of the individual, as violation of them can lead to imprisonment and or heavy fines. Fortunately, the Supreme Court has dealt with such laws/rules firmly, and declared most of them as unconstitutional. The Shreya Singhal vs Union of India (Writ Petition Criminal No. 167 of 2012) comes very handy as a case in point. As it empowers us with logic and or information to evaluate such laws against the metric "vagueness". In this case, the petitioner (Shreya Singhal) challenged the validity of the article 66A (of the amended IT Act of 2000) on various factors, and "vagueness" being one such factor. The purpose of this note is to summaries the key arguments used by the SC while evaluating this section (66A) against this metric and its applicability on Clause 9 of the draft "Intermediaries Guidelines" recently issued by GOI for public consultation.

Intermediaries Guidelines (Clause 9)

The clause 9 of the draft intermediaries guidelines is reproduced for ready reference.

The Intermediary shall deploy technology based automated tools or appropriate mechanism, with appropriate controls, for proactively identifying and removing or disabling public access to unlawful information or content.

Note that most of the terms used in the above clause are NOT defined in the proposed draft.

IT Act (Section 66A)

In the year 2009 the IT act of 2000 was amended to include many new provisions. Once such clause was Section 66A reproduced under.

66A - Punishment for sending offensive message through communication service etc- Any person who sends, by means of a computer resources or a communication device-

(a) any information that is grossly offensive or has menacing character; or

(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device; or

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such message,

shall be punishable with imprisonment for a term which may extend to three years with fine.

Explanation.— For the purposes of this section, terms “electronic mail” and “electronic mail message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.

Most terms (offensive, menace, annoy, annoyance, inconvenience, danger, obstruct etc) used in section 66A were not only vague but not defined. Hence the Supreme Court had branded this section as unconstitutional by weighing it against various metrics. One such metric (vagueness) is of special interest which is summarized in this article.

Supreme Court Judgment (Extracts)

The extracts from the judgment is reproduced under.

Clause 56 - It was further held that a penal law is void for vagueness if it fails to define the criminal offence with sufficient definiteness. Ordinary people should be able to understand what conduct is prohibited and what is permitted. Also, those who administer the law must know what offence has been committed so that arbitrary and discriminatory enforcement of the law does not take place.

Clause 57 - Grayned v. City of Rockford 33 L.Ed. 2d. 222....... The law on the subject was clearly stated thus:......Vague laws offends several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them......Third, ..... Uncertain meaning inevitable lead citizens to "steer far wider of the unlawful zone".... than if the boundaries of the forbidden areas were clearly marked.

Clause 63 - In Federal Communication Commission v. Fox Television Stations, 132 S Ct. 2307, it was held:

A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required...........a regulation is not vague because it may at times be difficult to prove an incriminating fact but rater because it is unclear as to what fact must be proved.

Clause 69 - Judged by the standards laid down in the aforesaid judgments, it is clear that the expressions used in 66A are completely open-ended and undefined.

Clause 77 - However, the learned Additional Solicitor General argued before us that expressions that are used in 66A may be incapable of any precise definition but for that reason they are not constitutionally vulnerable. He cited a large number of judgment in support of this submission. None of the cited judgment dealt with a Section creating an offence which is saved despite its being vague and incapable of any precise definition. In fact, most of the judgments cited before us did not deal with criminal law at all.

Clause 82 - ......Quite obviously, a prospective offender of Section 66A and the authorities who are to enforce Section 66A have absolutely no manageable standard by which to book a person for an offence under Section 66A....Section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restriction that may be imposed on such right.

Intermediaries Guidelines (Applicability)

The logic used by the Supreme Court while measuring Section 66A against the metric "vagueness" seems to apply also in clause 9 of the draft Intermediaries Guidelines. More so when it has penal provision. See my earlier note titled "Intermediaries Guidelines : Background and Issues" for details. Hence, if passed in the current form it might face similar challenges as was faced by Section 66A of the IT act in past.

Conclusion

Hence, in light of the above the clause 9 of the Intermediaries Guidelines should be either dropped totally or suitably modified for clarity prevent unnecessary harassment and penalization. This will ensure smooth functioning of business and will be in the overall interest of the consumer.

(Views expressed are of my own and do not reflect that of my employer)

PS: Find the list of other relevant articles in the embedded link.