Last month, while considering an appeal on a decision of the Himachal Pradesh High Court, the judges of the Supreme Court of India found themselves at an uncanny loss for words. The order being appealed was written in such complex language that even the most learned legal minds in the country were struggling to understand what it was actually saying. “How do we understand this decision?” Justice KM Joseph asked in apparent despair, “Is it in Latin?” On which the senior advocates present also had to agree that this order is indecent. The said order was returned to the said High Court with a request to be rewritten.
While this particular event may be an extreme example, it is the epitome of a profession vulnerable to a disease of intentional understanding. We lawyers wrap ourselves in a cloud of jargon that is so vague that its peculiarities are incomprehensible to anyone except the well-schooled. We punctuate our sentences with old proverbs and Latin proverbs, and repeat them over and over to ourselves, so much so that by the time you get to the end of them, you have a hard time remembering that they How did you start
The most frequent justification given for the need to use this type of dense language is that it is the only way to ensure that every possible outcome is adequately addressed. Unless they can specify what needs to be done in every conceivable situation, lawyers believe that their clients will suffer if things are left untold that have actually passed.
This maximalist approach to drafting is the reason why legal documents are always so dense. This approach remains with us as we progress through the many stages of our careers, with contracts we draft as young apprentices, but then also influencing legal opinion, arbitral awards and judicial decisions. Which we hike to the bar and eventually graduate to the bench. It is eventually incorporated into the laws, regulations and executive orders that form the basis of our legal system – which are themselves drawn up by lawyers trained in a similar approach to language.
This is why it becomes so difficult to understand our laws; Why are the common man unable to understand their implications without the help of a lawyer for whom they apply. In a world that has increasingly prioritized the democratization of access, the kind of forced ignorance that stems from undue complexity is understandable.
Many countries have enacted laws that impose plain-language obligations on government officials, requiring them to communicate in words that are easily understood. In the US, the Plain Writing Act of 2010 requires federal government agencies to “promote clear government communication that the public can understand and use.” In the UK, the Tax Law Rewrite Project simplified tax laws so that taxpayers could understand them without need. Assistance of Lawyers and Chartered Accountants.
India would do well to follow suit. If it is impossible for ordinary people to understand our laws, they can hardly be blamed for non-compliance. However, in addition to simplifying the language of our laws, I recommend that the government take three additional measures to make the country’s legal system more accessible and effective.
First, all government departments should be required to publish on their websites a complete list of all laws, rules and regulations that they have authority over, and enforce only those laws. More often than not, government officials invoke vague circulars to justify their enforcement actions, leaving them with little choice but to silently pay the imposed fines.
Furthermore, efforts should be made to consolidate all these regulations into one easy-to-understand code that presents a comprehensive snapshot of all applicable regulations. The Reserve Bank of India regularly publishes Master Directions which consolidate various circulars issued from time to time into one comprehensive regulation, which is then used for implementation. Other government departments should learn from this.
Second, with each law to be enacted, the government must publish an official note that describes in clear language what that law covers, what it applies to, and the obligations it is required to fulfill. . While the specific legal obligations that bind the regulated entity will remain enshrined in the text of the statute, this note may provide necessary clarification. A good example of how something like this can be enforced is the Terms of Service of the photography website 500px.com (bit.ly/3HCoYiC), where each clause is explained in simple layman’s language with standard contractual clauses.
Lastly, serious efforts should be made to reduce the burden of compliance. Where information is sought from regulated entities, the government should be allowed to make only consolidated information requests instead of constantly harassing citizens with repeated information requests. Where forms are to be filed, they should be designed to collect new information needed only for regulatory purpose, rather than collecting the same data over and over again.
Our laws and legal system need not be so inaccessible. A few strategic steps in the right direction will go a long way towards democratizing public access.
Rahul Mathan is a partner in Trilegal and also has a podcast called Ex Machina. His twitter handle @matthan . Is
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