And what about Section 377?https://indianexpress.com/article/opinion/columns/and-what-about-section-377/

And what about Section 377?

As with 66A, SC could use the ‘void for vagueness’ doctrine to strike it down.

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‘Void for vagueness’ doctrine exists as a tool for decision-makers to temper down ill-effects of legislative enactments.

In a watershed moment for freedom of speech and expression, the Supreme Court struck down Section 66A of the Information Technology Act, 2000, as unconstitutional. This ominous penal provision criminalised sending information that was “grossly offensive” or of “menacing character” through a computer resource or a communication device. It also criminalised disseminating information the sender knew to be false, with the purpose of causing “annoyance”, “inconvenience” or “insult”, and prescribed imprisonment of up to three years.

The court offered two strong, yet conceptually separate, reasons why 66A’s incursion into the domain of Article 19(1)(a) of the Constitution was unconstitutional. First, the curbs imposed under 66A bore no proximate connection with any of the permissible grounds for restriction on free speech contained in Article 19(2). Second, its extreme vagueness rendered it an arbitrary and unreasonable restriction. This piece will focus on the latter reason, as it is relevant to the constitutionality of Section 377, which stands challenged by a curative petition pending in the Supreme Court.

Addressing the linguistic indeterminacy writ large in Section 66A, the court observed that “every expression used is nebulous in meaning”. It reasoned that what is offensive, annoying or inconvenient to one may not be so to the other. The total absence of a demarcating line between the prohibited and the permitted rendered 66A “unconstitutionally vague”. Compare this verdict with another chapter in the “chain novel” — Ronald Dworkin’s phrase to describe what judges and judgments do — written by the Supreme Court: the decision in Suresh Kumar Koushal and Another vs Naz Foundation. A similar challenge of vagueness was mounted against Section 377, which criminalised “carnal intercourse against the order of nature” and brought consensual homosexuality within its broad linguistic sweep. The court rejected this challenge.

The Naz Foundation verdict opened its discussion of vagueness with the observation “vagueness and arbitrariness go to the root of a provision and may render it unconstitutional” especially “in the case of penal statutes”. It then qualified this general principle, adding that judges should be mindful of “the vagaries of language” and the “prior application of the law”. The verdict then cited two passages, one from its decision in A.K. Roy, Etc vs Union of India and Another, where the provision in question was declared vague, and the other from its decision in K.A. Abbas vs Union of India and Another, where the relevant provision survived the vagueness challenge. Shockingly, from there the verdict proceeded to directly consider the issue of violation of Article 21, without applying any of these principles or passages to the language contained in Section 377. Deductive reasoning, whether right or wrong, follows the structure of a major premise, a minor premise and a conclusion. Naz Foundation is the peculiar instance of a “decision” that offers neither a minor premise nor a conclusion in it treatment of the question of vagueness.

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Consider, for a moment, the concern with the “vagaries of language” highlighted, though not applied, in Naz Foundation. The law is a blunt instrument partly because language carries limitations, especially in the indeterminacy of meaning. Parliament can only lay down broad principles, leaving the details to be worked out over time through the mechanisms of enforcement and adjudication. In this scenario, how do we conclude that a specific law is so hopelessly vague that it cannot, in any situation, survive the challenge of constitutionality? Why can’t we leave it to judges, for instance, to interpret “offensive”, “annoying” or “against the course of nature” on a case-to-case basis?

The decision to strike down a vague provision as unconstitutional, or keep it alive for case-by-case enunciation of meaning, entails a larger policy choice that transcends the specificities of the statutory language used therein. Meir Dan-Cohen’s influential piece in Harvard Law Review, distinguishes between “decision” and “conduct” functions served by a legal rule. He explains that while the conduct aspect of a rule is addressed to the general public and designed to guide their behaviour, its decision aspect is addressed to officials, including judges, who apply such rules.

An important role played by this distinction is that, at times, the legislature may employ over-inclusive and vague statutory language to align public conduct with a norm on which there is moral consensus, even if language cannot capture its various intricacies. The “void for vagueness” doctrine exists as a tool for decisionmakers to temper down, or even negate, the ill-effects of the legislative enactment when it is clear that the original norm that motivated its statutory vagueness does not survive the test of time.

When reconsidering Naz Foundation, and it is to be hoped, the void for vagueness argument raised there, the Supreme Court has to make this policy choice. To evoke the great Justice Vivian Bose, the real test is “whether the collective conscience of a sovereign democratic republic as reflected in the views of fair-minded, reasonable, unbiased men, who are not swayed by emotion or prejudice, can consider the impugned laws as reasonable, just and fair and regard them as that equal treatment and protection in the defence of liberties”. The judgment on Section 66A offers renewed hope that the constitutional challenge to Section 377 will be decided, and correctly, once and for all.

The writer is a lawyer and author of ‘Intellectual Property Rights: Infringement and Remedies’
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