Vagueness is an inherent feature of language. The same intention can be expressed with a variety of words and expressions, and any given choice of words can relate to multiple different intentions. This problem is particularly exacerbated with vague terms, which often have a wide variety of referents, leading to comparatively greater open-endedness and variability. It is well known that unless the law prescribes a bright-line test, which too has its own set of interpretative problems as discussed before, most standards in law have some degree of open texture, and inevitably harbor some vagueness or multiple meanings.
The following example may be considered to understand the import of a word with an open texture. Suppose a statute uses the term ‘tall’ instead of prescribing a particular numerical test for height. Now, the meaning of this term can vary depending on the context and the purpose of the statute. The standard of tallness might differ for a ride at an amusement park and perhaps in discerning the maximum height of vehicles on motorways. Hence, in that sense, the term is vague and open to wide interpretation.
Vagueness in law, however, exists on a spectrum, and different scenarios necessitate different degrees of tolerance towards vagueness. Excessive vagueness in law can make the statute overbroad and might make the exercise of discretion a capricious exercise. At the same time, it might sometimes be desirable in the interest of justice to retain some open texture in statutes, to cover future eventualities that the legislature might not have anticipated but intended to address based on the overarching purpose of the law.
In that sense, the sliding scale of vagueness in law determines whether the law is just and inclusive, or unjust and capricious. To instantiate, consider Section 5 of the Limitation Act, 1963, which allows the condonation of delay if ‘sufficient cause’ has been delineated by such applicant. In this context, instead of prescribing a mathematically precise formula in regards to what is a sufficient cause, it was considered necessary to use words that provide a broad spectrum and enable a fact-based analysis for each case. Since lawmakers could not possibly envisage all potential situations that may arise in the future at the time of legislating, it was therefore considered prudent to leave it to the facts and circumstances of each individual case.
Apart from enabling individualized application of the broad legal directive, a certain degree of vagueness is also necessary to address evolving societal needs. An excellent example of this is reflected in the jurisprudence of Article 21. In this scenario, if the framers of the Constitution had sought to include a laundry list encompassing a myriad of conditions to which Article 21 would be applicable, the ramifications would have been substantial. Any interpretation of the right to privacy would have required a constitutional amendment. Therefore, it may often be beneficial to prescribe a broad standard and allow enough flexibility to address changing needs of the society. Judicial discretion in that sense is often wedded unto the law and cannot be eliminated by invoking excessive formalism.
This takes us to the question that if vagueness is inherent in law and may even be desirable on some level, then what ought to be the test and standard for striking down a law on grounds of being vague. In this regard, we will now analyze the test and standard for vagueness, which would make a statute or legislation liable to be struck down on that basis.
Test for void-for-vagueness
Vagueness needs to be viewed from the perspective of:
(a) the authorities applying the impugned law; and
(b) the persons being regulated by the impugned law, as was held in Shreya Singhal v Union of India, where Supreme Court dealt with the constitutionality of Section 66A of the Information Technology Act, 2000.
Supreme Court, after referring to terms in Section 66A, such as ‘grossly offensive’ or ‘menacing’, observed the same to be very vague and held that neither the prospective offender under Section 66A nor the authorities who are to apply Section 66A would have any manageable standard to charge a person for an offence under Section 66A. It was observed as follows:
“85. […] Quite obviously, a prospective offender of Section 66-A and the authorities who are to enforce Section 66-A have absolutely no manageable standard by which to book a person for an offence under Section 66-A […].”
With respect to the first limb, i.e., the perspective of the person applying the law, the standards are made clear in State of Madhya Pradesh v. Baldeo Prasad, where while dealing with a constitutional challenge to the validity of the Central Provinces and Berar Goondas Act, 1946, it was observed that the definition of the word ‘goonda’ does not give necessary assistance to the District Magistrate, in deciding whether a particular citizen falls under the category of ‘goonda’ or not.
Further, in Maneka Gandhi, a Constitution Bench of Supreme Court, while trying to construe the import of the words ‘in the interests of general public’ in Section 10(3)(c) of the Passport Act, 1967, observed that the law is well settled to the effect that “when a statute vests unguided and unrestricted power in any authority to affect the rights of a person without laying down any policy or principle which is to guide the authority in exercise of this power, it would be affected by the vice of discrimination…”.
After noting that the impugned words in the provision are taken ipsissima verba from Article 19(5) of the Constitution, it was held as follows:
“16. (…)We are clearly of the view that sufficient guidelines are provided by the words “in the interests of the general public” and the power conferred on the Passport Authority to impound a passport cannot be said to be unguided or unfettered(…).”
This view has also been endorsed in Harakchand Ratanchand Banthia, where a Constitution Bench of Supreme Court dealt with the constitutional validity of the Gold Control Act, 1968. The challenge made by the Petitioners therein, against Section 27 of the Act, mainly contended that the conditions imposed through the section for the grant or renewal of licenses were uncertain, vague and unintelligible, thus conferring broad and unfettered power upon the statutory authorities in the matter of grant or renewal of license.
Hence, to satisfy the first facet regarding the person applying the law, the impugned law must be clear enough to provide necessary guidelines regarding application, and must not confer unfettered discretion.
When evaluating the issue from the second perspective, which focuses on the individuals affected by the law, it is essential to adopt an objective standard reflecting the viewpoint of a person of average intelligence within the affected group. Thus, it follows that a person of ordinary intelligence amongst such a class of persons on which the impugned law operates should be able to understand the scope or sphere of application of the law.
This standard was observed by a Constitution Bench of Supreme Court in Kartar Singh v. State of Punjab, where it dealt with the constitutionality of specific provisions in the Terrorist and Disruptive Activities (Prevention) Act, 1987, analyzed the term ‘abet’ and gave it a reasonable construction to avoid the vice of vagueness. It was observed that vague laws offend important values and reinforce the need for laws to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited.
Nisha Priya Bhatia, was a case where a challenge to Rule 135 of the Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 was laid. Supreme Court observed that such a challenge on the ground of vagueness could only be sustained if the Rule does not provide a person of ordinary intelligence with a reasonable opportunity to know the scope of the sphere in which the Rule would operate. This position was further developed, in line with the perspective of the persons upon which the provision operates, by observing that this standard is to be applied from the point of view of a member working in the organization as an intelligence officer, more particularly, a Class I intelligence officer.
Furthermore, this standard was also seen to have been applied in the Federation of Obstetrics & Gynaecological Societies of India (FOGSI) v. Union of India, wherein the constitutional validity of Sections 23 (1) and 23 (2) of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 was being challenged. While holding against such a challenge, it was observed by Supreme Court that the provisions are not vague and that a responsible doctor is expected to know what they are undertaking and what their responsibilities are. In this light, the standard of a ‘person of ordinary intelligence’ was also seen to be employed and the Court went on to observe that a person of ordinary intelligence can comprehend the provisions of the Act and they can have fair notice of what is prohibited and what omission they should make.
A nuanced understanding of the term ‘ordinary intelligence’ can be gained from Supreme Court’s ruling in Seksaria Cotton Mills Ltd. v. State of Bombay, where, albeit in a different context, while interpreting the meaning of the word ‘possession’, it was observed as follows:
“21. But we need not go into all this. Here is an order which is to affect the business of hundreds of persons, many of whom are small petty merchants and traders, the sort of men who would not have lawyers constantly at their elbow; and even if they did, the more learned their advisers were in the law the more puzzled they would be as to what advice to give, for it is not till one is learned in the law that subtleties of thought and bewilderment arise at the meaning of plain English words which any ordinary man of average intelligence, not versed in the law, would have no difficulty in understanding […]”
To sum up this facet, the impugned law is to be tested from the perspective of a person of ‘ordinary intelligence’ from the class to which the law applies. We have also delineated cases where the impugned law operates on a specialized class of persons, such as a Class-I intelligence officer of the Research and Analysis Wing, as seen in Nisha Priya Bhatia (supra), and medical practitioners or doctors as seen in FOGSI (supra). In any case, even if the persons being regulated are not a specialized class of persons, the Court would adopt the standard of an ordinary man of average intelligence, who, though not well versed in law, would have no difficulty in understanding the plain meaning of the words contained in the impugned law, when confronted with it.
Given the above, it is observed that the test for striking down a law on the grounds of vagueness can be viewed through two perspectives, both of which are to be taken into account, and the standards for the same have to be satisfied to sustain a challenge on the grounds of a law or provision being void for vagueness. Thus, a statute or its provision can be struck down for vagueness if:
i. The authority interpreting and applying the impugned law or provision is not sufficiently guided by such law or provision and is conferred unfettered discretion by virtue of the same; and
ii. When confronted with the plain meaning, a person of ordinary intelligence, amongst the persons regulated by the impugned law or provision, faces difficulty in understanding the sphere of their application.
The extent of review for the test of ‘void for vagueness’.
It is also well settled that ordinarily, courts should endeavour to draw a demarcating line and infer some reasonable meaning from an impugned provision, rather than hastening to intervene and striking down the entire provision on the grounds of vagueness.
This view was also echoed in K.A. Abbas v. Union of India, where a Constitution Bench of Supreme Court dealt with the constitutionality of Section 5B of the Cinematograph Act, 1952 and laid down the thresholds for applicability of the vagueness doctrine. It was held that if a law is vague, it should be accorded the interpretation which best suits the legislature’s intention and advances the purpose of the legislation. If that was not possible, and the legislation was marred with uncertainty which prima facie appeared to take away a guaranteed freedom, it could be struck down.
However, Supreme Court also cautioned that such recourse be resorted to sparingly, and the Court should instead endeavor to draw the line of demarcation where possible. Similarly, another important principle governing this doctrine is that vagueness ought to be inversely proportional to the gravity of the consequences involved—i.e., the more penal the consequences, the less vague the legislation should be. Vagueness, especially in criminal laws, ought to be used to protect the individual facing penalty.
Reference
In Re: Section 6(a) of the Constitution of India, 1955 (2024)