A Short note on ‘Unconstitutional Vagueness’

First things first, What is Unconstitutional Vagueness ?

Wexdictionary defines Vagueness doctrine as :

1) A constitutional rule that requires criminal laws to state explicitly and definitely what conduct is punishable.  Criminal laws that violate this requirement are said to be void for vagueness.  Vagueness doctrine rests on the due process clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution.  By requiring fair notice of what is punishable and what is not, vagueness doctrine also helps prevent arbitrary enforcement of the laws.

2) Under vagueness doctrine, a statute is also void for vagueness if a legislature’s delegation of authority to judges and/or administrators is so extensive that it would lead to arbitrary prosecutions.

There are not many Indian Court cases (except Shreya Singhal on 66A of the IT Act) that deal with the rule of lenity. For those who arrived late, Shreya Singhal (SC) dealt with the following issue :

S. 66-A of Information Technology Act, 2000 ropes in all kinds of information disseminated over internet regardless of content of information and irrespective of whether the same falls within realm of discussion or advocacy causing only annoyance, inconvenience, etc. to some (which is permissible), or the same causes incitement leading to imminent causal connection with any of eight subject-matters contained in Art. 19(2) of the Constitution (which is not permissible). The words ‘annoyance, inconvenience etc’ were held to be bad on account of being unconstitutionally vague as they were too subjective and different minds could come to different conclusions as to whether a particular message was ‘annoying or inconveniencing or not’. The Court held that “S. 66-A affects right of people to know, thus is violative of Art. 19(1)(a) and not saved by Art. 19(2) of the Constitution, hence, struck down in its entirety.” 

There are certain foreign cases on the doctrine of unconstitutional vagueness, which make for a very interesting read :

  • The Florida Supreme Court, in Franklin v. State, ruled that the state’s felony ban on sodomy was unconstitutionally vague because an “average person of common intelligence” could not reasonably know, without speculating, whether “abominable and detestable crime against nature” included oral sex or only anal sex.
  • Papachristou v. Jacksonville and Kolender v. Lawson were two Supreme Court cases where the court struck down laws against vagrancy for unconstitutional vagueness; in restricting activities like “loafing”, “strolling”, or “wandering around from place to place”, the law gave arbitrary power to the police and, since people could not reasonably know what sort of conduct is forbidden under the law, could potentially criminalize innocuous everyday activities.
  • In Hoffman Estates v. The Flipside, Hoffman Estates, Inc., the Supreme Court considered a pre-enforcement challenge to a municipal ordinance imposing licensing requirements and other restrictions on stores that sold drug paraphernalia. The Court sided with the village, holding that in such a lawsuit the plaintiff must demonstrate that the law would be “impermissibly vague in all its applications.”
  • The U.S. Supreme Court, in City of Akron v. Akron Center for Reproductive Health, struck down a provision of Akron’s abortion law which required that physicians dispose of fetal remains in a “humane and sanitary manner”. “Humane” was judged to be unconstitutionally vague as a “definition of conduct subject to criminal prosecution”; the physician could not be certain whether or not his conduct was legal.
  • In Johnson v. United States, the Supreme Court ruled that the residual clause in the Armed Career Criminal Act was unconstitutionally vague and a violation of due process. The residual clause provided for an enhanced prison sentence for people who had previously been convicted of 3 or more violent felonies, which was defined as “use of physical force against the person of another,” “burglary, arson, or extortion,” “involves use of explosives,” or “otherwise involves conduct that presents a serious potential risk of physical injury to another.” The last part is known as the residual clause. (Source Wikipedia)

Students of Criminal Law and Constitutional Law should be well equipped with this concept, especially when so many new penal statutes are being enacted and courts would be called upon to rule on their constitutionality in the coming days.

(Featured Image credits : http://mentalfloss.com/article/30435/top-11-mentalfloss-shirts-year)

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