The (Hoary) Roots of Vagueness

When, in 2015, the Supreme Court handed down its judgment in Shreya Singhal vs Union of India, it was celebrated for many reasons. One of them was that the Court’s invocation of vagueness – along with the chilling effect – as a ground for striking down Section 66A of the IT Act represented an important conceptual breakthrough. While in Baldeo Prasad (1960) the Supreme Court had struck down a law criminalising “goondas” on the basis that it did not define who a “goonda” was, in K.A. Abbas (1970) the Court had admitted that in certain circumstances vagueness might make a statute void, and in Kartar Singh (1994) the Court had more or less imported the concept of void-for-vagueness from American jurisprudence, Shreya Singhal was believed to be the first time that the Court actually struck down a speech-restricting statute for being unconstitutionally vague.

Apparently not. It turns out that the origin of the vagueness doctrine in the context of speech-restricting statutes is far older than 2015; in fact, it goes back to 1951, to the beginnings of our constitutional jurisprudence, and a good two decades before the classic American judgment on the point, Grayned vs Rockford.

The case is State of Bombay vs F.N. Balsara, which is part of the constitutional canon, although for very different reasons. We know of Balsara because of its upholding of prohibition, its exposition of the doctrine of pith and substance in determining legislative competence, and its restatement of the classification test under Article 14. However, there was also an Article 19(1)(a) issue in Balsara, which the Court dealt with in a terse paragraph towards the end of its judgment. Not only did the Bombay prohibition law ban liquor, it also penalised people – and advertisements – which would “commend, solicit the use of, or offer any intoxicant or hemp” or “incite or encourage any member of the public or any class of individuals or the public generally to commit any act which frustrates or defeats the provisions of this Act, or any rule, regulation or order made thereunder,” [Sections 23 and 24 of the Act]

With respect to these provisions, the Court had this to say:

“Sections 23(a) and 24(1)(a) in so far as they refer to “commending” any intoxicant are said to conflict with the fundamental right guaranteed by article 19 (1) (a) namely, the right to freedom of speech and expression and there can be no doubt that the prohibition against “commending” any intoxicant is a curtailment of the right guaranteed. and it can be supported only if it is saved by clause (2) of article 19 which, as it stands at present, provides that “nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.” It seems to me that none of the conditions mentioned in clause applies to the present case, and therefore the provisions in question must be held to be void. Section 23 (b) must also be held to be void. because the words “incite” and “encourage” are wide enough to include incitement or encouragement by words and speeches and also by acts. The words “which frustrates or defeats the provisions of the Act or any rule, regulation or order made thereunder” are so wide and vague that it is difficult to define or limit their scope. I am therefore in agreement with the view of the High Court that this provision is invalid in its entirety. So far as article 24(1)(b) is concerned the judgment of the High Court in regard to it cannot be upheld. The learned counsel for the petitioner also conceded before us that he was not going to assail this provision.”*

While the major premise of the Court’s argument was that there was no sub-clause under Article 19(2) that could be used to justify prohibiting the “commending” or “encouraging” or “inciting” the sale and consumption of alcohol, it also made it clear that in any event, the gravamen of the offence – “frustrating or defeating the provisions of the act” – consisted of such vague terms, that the provision could not be sustained under Article 19(2). Interestingly, the Court also gave a nod to a concept often associated with vagueness in free speech jurisprudence – that of overbreadth – when it noted that the impugned words “are so wide and vague that it is difficult to define or limit their scope.” The issue of definition speaks to vagueness, while the issue of limit speaks to over-breadth (i.e., when a statute is worded so broadly that it ends up prohibiting speech that may constitutionally be restricted, as well as speech that may not).

Consequently, six decades before Shreya Singhal, a Constitution Bench of the Supreme Court had already struck down a speech-restricting statutory provision on grounds of over-breadth and vagueness. This conceptual advance, however, was largely forgotten in the intervening years (Abbas makes no reference to Balsara), and Balsara is never taught as a free speech case.

It does make you wonder, though, about how many hidden gems are lying scattered about in the Constitution Bench decisions from the 1950s. Chintaman Rao’s exposition of over-breadth was forgotten until Shreya Singhal resurrected it in 2015; In Re Kerala Education Bill’s doctrine of unconstitutional conditions was cited once in a concurring opinion in Ahmedabad St Xavier’s Education Society, but has been submerged ever since; Basheshar Nath’s invitation to develop a theory of fundamental rights as constituting an objective order of values, following German jurisprudence (via the doctrine of waiver), has never been seriously taken up; and of course, Balsara’s account of vagueness has been lost to the canon. All these judgments were delivered by benches of five judges or more, and consequently, remain good law.

How might the jurisprudence of 2017 be affected if the jurisprudence of the 1950s was to be taken seriously once more?

*Notice also that for the Court, the question of finding limitations upon free speech imported from outside 19(2) don’t even arise (much as they didn’t arise in its 1960 judgment in Sakal Papers). This is a good indication of why a two-judge bench’s recent framing of issues pertaining to whether Article 21 can “limit” 19(1)(a) is entirely misguided; the two-judge bench is bound by the Constitution Benches in Balsara as well as in Sakal: restrictions upon free speech are not to be imported form beyond Article 19(1)).

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4 Comments

Filed under Chilling effect, Free Speech

4 responses to “The (Hoary) Roots of Vagueness

  1. Thanks for drawing my attention to this Gautam. I am in the throes of using the vagueness argument in a matter.

    The Balsara decision, however, is generally seen as expounding on the need for a restriction on Art 19(1) rights to be precise as the restriction has to be strictly construed. As such, it seems to me, the vagueness arguement is a recast of the pre existing restriction (interpretative) on restrictions on Art. 19 rights.

  2. Balaji

    Some provisions of the Gold Control Act were struck down on the ground of excessive delegation. The delegation was held to be excessive because it was vague. https://indiankanoon.org/doc/77461/
    I think there are older decisions as well that have applied vagueness, in an administrative law context.

  3. “*Notice also that for the Court, the question of finding limitations upon free speech imported from outside 19(2) don’t even arise (much as they didn’t arise in its 1960 judgment in Sakal Papers). This is a good indication of why a two-judge bench’s recent framing of issues pertaining to whether Article 21 can “limit” 19(1)(a) is entirely misguided; the two-judge bench is bound by the Constitution Benches in Balsara as well as in Sakal: restrictions upon free speech are not to be imported form beyond Article 19(1)).”

    I heartily agree.

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