Cyber Trolling

Doctrine of Vagueness

                                                                                                                        Dr. Ritu Gautam

                                                                                                                       (Cyber Law Expert)

Doctrine of “Void for Vagueness”, originated in the American legal system, has been driven from the ‘Due process of Law’ clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution. According to this Doctrine, a statute is void if it is too vague to be understood by the citizens or unenforceable by the law. This principal believes that vagueness of statute may lead to arbitrariness of the law enforcement bodies and defeat the Rule of Law. The basis of this doctrine is uncertainty and lack of specificity. The philosophy underlying the principle is quite simple – no one may be required at peril of life, liberty, or property to speculate as to the meaning of a penal law. Thus, if it is found that a reasonably prudent man is unable to determine by himself the nature of the punishment for the prohibited conduct as envisaged under the statute, its applicability to the class of persons the law seeks to regulate, then for lack of definiteness, the law may be regarded as ‘void for vagueness’ (A. G. A., “The Void for Vagueness Doctrine in the Supreme Court”109 UPA LREV 67 (1960). Any criminal statute is premised on a very simple objective that allows the citizens to carry out the affairs of their lives with a clear knowledge of those acts which are specifically forbidden by the law, and the repudiation of this should be considered logically as frailty of the legal system.

Like the word ‘mobster’ if used in a penal statute, may reduce the statute as void, as such phrase can be interpreted in numerous ways by the court as well as the enforcing agencies. While there exist several such instances, mere uncertainty in a single phrase of a hastily drafted statute could render the law unconstitutional and void, thereby necessitating precaution in the framing of penal statutes that are bound to affect a majority of citizens, as is certainly the case with a statute regulating activities on the internet in a country as large as ours.  (Lanzetta v. New Jersey, 306 U.S. 451 (1939).)

In the light of this doctrine the Information Technology (Amendment) Act, 2008 can be considered as an excellent case study for analysis of law making and policy formulation in the field of cybercrime legislation. It reveals quite ardently the need for carefully articulated provisions, farsightedness in the drafting process and anticipation with respect to explanations to particular sections. The gaps of the legislation and the resultant problems reinforces the belief that criminal legislations should be definitive and not be left open to wide-ranging interpretations, especially related to internet regulations. As cyberspace provides some liberties that can make easier to contravene laws, and with such inherent characteristics of cyberspace, the regulatory or legislative measure must strive to be comprehensive, definitive and narrow in interpretive scope.

Information Technology (Amendment) Act, 2008 was enacted to address increasing incidents of cybercrime, facilitation to apprehend cybercriminals and to deter commission of crime but the irony rests in the fact that what the Amendment Act eventually has created is a situation wherein it perhaps, isn’t ‘easier to be a criminal’, but rather, ‘easier to be classified as a criminal’. The danger, in both cases, cannot be overemphasized.

Cybercriminals are able to take advantage of the legal system because it’s not defined in a decisive manner for example: Hacking is the most commonly performed crime on the basis of NCRB data but in the year 2008 under Information Technology Amendment Act the word ‘Hacking’ has been replaced with the word ‘Computer related crime’ the term which encompasses host of activities bringing the regulation in vicinity of vagueness.

The ‘Doctrine of Void for Vagueness’, also applies to this concept, in the same manner it has been applied in Shreya Singhal case at the time of declaring section 66A unconstitutional. The same vagueness is there in many other provisions of IT Act which augurs for immediate attention and redressal. Now the pertinent question remains 'What is the solution?