Simplification
The fundamental question is whether the complexity of laws can be addressed by solely prioritising the language and style of drafting
magazine
Sunday, March 17, 2024
The language of law is selfcontained and distinct from plain English. It has certain defining peculiarities such as domainspecific vocabulary, lengthy sentences, repetition of words within the same sentence, inclusion of foreign expressions, use of obsolete words, and so on. As a result of these distinctive characteristics, it is often referred to as legalese and is criticised for being incomprehensible to the layman.
The Union government, to make the statutory texts clear and comprehensible to common people, has initiated a mission to simplify the legal language in India by aligning it with the vision of the access to justice scheme titled DISHA.
Simplification of text of the statutes and plain language reforms are imperative for not only making the laws intelligible to all citizens but also to instil public confidence in the legal system of the country. However, the fundamental question that arises is whether the complexity of statutes and incomprehensibility can be addressed by solely prioritising language and style of drafting.
The plea for laws in plain English is a centuriesold matter across the globe. This concern led to a campaign in the West in the 1960s known as the Plain English Movement, which launched initiatives to draft various documents accessed by the public at large in the most lucid and understandable language possible.
A consumer movement was set in motion in 1975 when the Citibank of New York introduced a plain English consumerfriendly promissory note that attracted global attention. It was a step taken towards empowering common people, abolishing excessive bureaucracy and officialese, and making important consumerrelated documents easy to understand. This gradually entered the legal realm with the introduction of plain English legislation in Canada, Australia, New Zealand, and South Africa.
Though this movement did not strongly impact the language of the statutes in the U.K. and the U.S. at that time, it did so systematically.
The general consensus in relation to legal language simplification reforms include suggestions such as replacing obsolete words and foreign expressions and reducing the length of sentences.
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Decades of use
The language used in the statutes and courts in India are to some extent the result of the influence of the British colonial period. Expressions such as mens rea, writ, ex parte, in camera, sub judice, and deem were added to the Indian legal system from the AngloSaxon, Latin, and French languages during British rule. After decades of use, these expressions have become conventional in the legal profession and therefore any change would only lead to confusion.
To elucidate, though the entire text of the Juvenile Justice (Care and Protection of
Children) Act, 2015 uses the term “child in conflict with law” to minimise stigma surrounding the word juvenile, the Women and Child Development Ministry stated that the change in the title of the Act would create confusion as the term “juvenile justice” is wellunderstood by most of the stakeholders as well as the civil society.
In addition, simplifying the statutory text may, in certain cases, unsettle the legal clarity already provided by the judicial precedents relating to legal terminologies used in a statute.
It is not disputed that brevity is the soul of good legislation, but short sentences are not always the answer to incomprehensibility as many a time drafters are required to write complicated legal provisions comprehensively and with utmost clarity so that there is no room for ambiguity.
Though simplification of legal language is a progressive step taken by the Indian government, it is pertinent to note that plain English language is only a minuscule part of the simplification process.
Understanding statutory enactments and judicial language by a layman requires the knowledge of judicial decisions, facilitation of understanding by simplifying court forms, practices and procedures, and so on.
It is also significant to note that the position of the government is unclear regarding whether all the existing legislation would be rewritten and reenacted in the plain English language or a legal reference handbook would be made available for the common citizens. The former may pave the way for more litigation by unsettling the settled law if the simplified law does not accurately reflect the intent of the original law.