Relevance: GS -2: Structure, organization and functioning of the Executive and the Judiciary Ministries and Departments of the Government.

Key Phrases: Legal education, The profession divide, Intentional incomprehensibility, Maximalist approach, Obscure circulars, Executive orders, Democratization of access, Consolidation of regulations.

Background:

• In many countries, the language of legal education is the language of the country only. But in India from the time of Independence till now the medium of entrance examination of law schools, the medium of instruction in legal education and most of the works of Indian courts are continuing in English.
• But even a person who is well versed in English will still not be able to interpret the constitution in a way in which a lawyer is capable of understanding the text of it. The profession divide is the reason why English is able to maintain its hegemony in the legal sector. If we need to make legal education accessible to masses, then we need to answer this complexity of legal language.

Reasons for the complexity of a legal language:

• The use of Latin, and sometimes French, words, and phrases to express a rule, principle, doctrine, maximum, etc. which can be easily phrased in English
• The use of obsolete, archaic or old English words which have passed from the English language but have been kept alive by their frequent use in the Legal profession.
• The practice of assigning common English words a new, different, unusual and purely legal meaning or assigning these words some exclusive legal definitions and
• The ridiculed tendency of legal professionals both lawyers and judges to write often long and complex sentences without any punctuation.

Justifications given for such complexity of language:

• Lawyers believe it is the only way to ensure that every possible consequence is adequately addressed. Unless they can specify exactly what needs to be done in every conceivable situation, lawyers believe their clients will suffer, if things left unsaid actually come to pass.
• This maximalist approach to drafting is the reason why legal documents are always so dense. Often lawyers in preparing documents for their clients try to follow the theory that the longer the document the wordier it is, the better it becomes.
• Upbringing of a lawyer: Starting with the contracts they draft as young apprentices, but then also affecting the legal opinions, arbitral awards and judicial decisions that they issue as they grow in the Bar and eventually graduate to the Bench.
  • It eventually percolates into the laws, rules and executive orders that form the bedrock of our legal system -which are themselves drafted by lawyers trained in the same approach to language.

Why simplification of legal language is needed?

• In a world that has increasingly prioritized the democratization of access, this sort of forced ignorance that arises out of unwarranted complexity is understandably viewed with disfavour.
• It is agreed that a profession like law, engineering, physicist, philosophy requires special words as there are no other words which can substitute them but law deals with a human being’s relationship with another human, his society and with his government hence they do not require day-to-day events, Latin and French terms.

Solutions/Measures:

• Learning from Best Global practices: A number of countries have enacted legislations that impose plain- language obligations on government functionaries, requiring them to communicate in words that can be easily understood.
  • For Example: 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 needing the assistance of lawyers and chartered accountants.

India would do well to follow suit. If it is impossible for laypersons to understand our laws, they can hardly be blamed for not complying.

• Writing in non-technical terms: It should be insisted that the laws written by the legislatures can be made understandable to average laymen as well as to the legal professional, these laws must be written in non-technical terms.
• Simplifying language: Legislatures should use short sentences with adequate punctuations, the use of Latin and French phrases should be abandoned, the use of obsolete archaic English words should be abandoned and at last, the same meaning of words should be applied to those legal terms as the same meaning in common usage.

Measures to make the country’s legal system more accessible and effective:

• Promoting transparency and awareness: All government departments should be required to publish on their websites a complete list of all laws, rules and regulations that apply to those over whom they have authority, and only enforce those laws.
  • More often than not, government officials invoke obscure circulars to justify their enforcement actions, leaving those on whom they are being enforced with little choice but to quietly pay the fines that have been imposed.
• Consolidation of regulations: Efforts should be made to consolidate all these regulations into a single easy-to-understand code that presents a comprehensive snapshot of all applicable regulations.
  • For Example: The Reserve Bank of India regularly publishes Master Directives that consolidate various circulars issued from time to time into a single comprehensive regulation, which is then used for enforcement. Other government departments would do well to learn from this.
• Use of plain language: Along with every law that is enforced, the government should publish an official note that describes, in plain language, what that law covers, who it applies to, and the obligations they are required to meet.
  • A good example of how something like this can be implemented is the terms of service of the photography website 500px.com (bit.ly/3HCoYiC), where each clause has been explained in simple layman’s language alongside the standard contractual clauses.

Conclusion:

• Hence laws should be simplified in the English language and then from this standard English, they should be converted into other regional languages so that the masses can benefit, and the true meaning of legal access can be achieved.
• Our laws and legal system do not need to be so inaccessible. A few strategic steps in the right direction will go a long way towards democratizing public access to it.

Sources: Legal Service India  , Live Mint

Mains Question:

Q. One of the implications of the Rule of Law is the easier access of the law to the layman, not only in the form of judicial institutions but also in its easier comprehension. Comment [250 words]