Wages of vague communication

Striking down of Sec. 66A of IT Act

The real rule is that if a law is vague or appears to be so, the court must try to construe it, as far as may be, and language permitting, in accordance with the intention of the legislature. Where the law admits of no such construction and the persons applying it are in a boundless sea of uncertainty and the law prima facie takes away a guaranteed freedom, the law must be held to offend the Constitution

The Supreme Court in its historic order on March 24, 2015, accepted the argument that “the language used in Section 66A is so vague that neither would an accused person be put on notice as to what exactly is the offence which has been committed nor would the authorities administering the Section be clear as to on which side of a clearly drawn line a particular communication will fall.”

The Collin’s Dictionary defines most of the terms used in Section 66A, as follows: “Offensive:- 1) Unpleasant or disgusting, as to the senses 2) Causing anger or annoyance; insulting 3) For the purpose of attack rather than defence; Menace:- 1) To threaten with violence, danger, etc. 2) A threat of the act of threatening 3) Something menacing; a source of danger 4) A nuisance; Annoy:- 1) To irritate or displease 2) To harass with repeated attacks; Annoyance:- 1) The feeling of being annoyed 2) The act of annoying; Inconvenience:- 1) The state of quality of being inconvenient 2) Something inconvenient; a hindrance, trouble, or difficulty; Danger:- 1) The state of being vulnerable to injury, loss, or evil risk 2) A person or a thing that may cause injury pain etc.

Obstruct:- 1) To block (a road a passageway, etc.) with an obstacle 2) To make (progress or activity) difficult. 3) To impede or block a clear view of; Obstruction:- a person or a thing that obstructs; Insult:- 1) To treat, mention, or speak to rudely; offend; affront 2) To assault; attack 3) An offensive or contemptuous remark or action; affront; slight 4) A person or thing producing the effect of an affront = some television is an insult to intelligence 5) An injury or trauma.” (As quoted by the Supreme Court)The real rule is that if a law is vague or appears to be so, the court must try to construe it, as far as may be, and language permitting, in accordance with the intention of the legislature. Where the law admits of no such construction and the persons applying it are in a boundless sea of uncertainty and the law prima facie takes away a guaranteed freedom, the law must be held to offend the Constitution as was done in State of Madhya Pradesh v. Baldeo Prasad, [1961] 1 S.C.R. 970.

In this case, an inclusive definition of the word “goonda” was held to be vague and the offence created by Section 4A of the Goondas Act was struck down. The Supreme Court analysed two UK cases to prove how vagueness strikes at the constitutionality of a law. In Director of Public Prosecutions v. Collins, (2006) 1 WLR 2223, expression “grossly offensive” was used in Section 127(1)(1) of UK Communications Act, 2003. A citizen Collins called the office of MP and used expressions like “Wogs”, “Pakis”, “Black bastards” and “Niggers”. The Leicestershire Justices dismissed the case on the ground that telephone calls were offensive but not grossly offensive. The Queen’s Bench agreed and dismissed the appeal.

The House of Lords reversed it saying: There can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context. The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates.... Section 127(1)(a) provides no explicit guidance on the state of mind which must be proved against a defendant to establish an offence against the subsection.”

In another case Chambers v. Director of Public Prosecutions, [2013] 1 W.L.R. 1833, facts were: “Following an alert on the Internet social network, Twitter, the defendant became aware that, due to adverse weather conditions, an airport from which he was due to travel nine days later was closed. He responded by posting several “tweets” on Twitter in his own name, including the following: “Crap Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together otherwise I am blowing the airport sky high” None of the defendant’s “followers” who read the posting was alarmed by it at the time. Some five days after its posting, the defendant’s tweet was read by the duty manager responsible for security at the airport on a general Internet search for tweets relating to the airport.

In interview, the defendant asserted that the tweet was a joke and not intended to be menacing. The defendant was charged with sending by a public electronic communications network a message of a menacing character contrary to Section 127(1)(a) of the Communications Act 2003. He was convicted in a magistrates’ court and, on appeal, the Crown Court upheld the conviction, being satisfied that the message was “menacing per se” and that the defendant was, at the very least, aware that his message was of a menacing character.” The Queen’s Bench Division reversed the Crown Court.

The two judges of our Supreme Court analysed and concluded: “These two cases illustrate how judicially trained minds would find a person guilty or not guilty depending upon the Judge’s notion of what is “grossly offensive” or “menacing”. In Collins’ case, both the Leicestershire Justices and two Judges of the Queen’s Bench would have acquitted Collins whereas the House of Lords convicted him. Similarly, in the Chambers case, the Crown Court would have convicted Chambers whereas the Queen’s Bench acquitted him.

If judicially trained minds can come to diametrically opposite conclusions on the same set of facts it is obvious that expressions such as “grossly offensive” or “menacing” are so vague that there is no manageable standard by which a person can be said to have committed an offence or not to have committed an offence. 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. It is clear that Section 66A is unconstitutionally vague. (The writer is Central Information Commissioner)

By Madabhushi Sridhar