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It is incumbent upon us to try keeping things simple
Many in the law profession could be held guilty of using such complex language in judicial proceedings, legal drafts and contracts that it is mostly incomprehensible to most
No one could accuse George Orwell of using jargon. In his celebrated essay, ‘Politics and the English Language’, published in April 1946, he railed against the use of ostentatious words, unduly elaborate sentences and meaningless jargon in written English. “The great enemy of clear language,” he wrote, “is insincerity. When there is a gap between one’s real and one’s declared aims, one turns as it were instinctively to long words and exhausted idioms, like a cuttlefish spurting out ink.” Nearly a century later, the New Zealand government is trying to give Orwell’s philosophy the force of law.
There is a Plain Language Bill awaiting final debate and voting in New Zealand’s Parliament. As its name suggests, it aims to promote “the use of plain English in official documents and websites” through language that is “clear, concise, and well-organised.” A commendable objective, and one which was underscored by a Member of Parliament quoting William Wordsworth during a debate on the Bill to argue that flowery language had no place in legislation. While fans may argue that Wordsworth is a poet for all seasons, one can hardly fault the sentiment expressed by the MP. Legal documents are notorious for being littered with long-winded clauses and inscrutable phrases, which are unintelligible to those for whose benefit such documents exist. There even exists a word solely dedicated to describing jargon in the legal context: ‘legalese’. Which, of course, is a universal malady.
In 2010, the US introduced its Plain Writing Act to tackle increasing legalese in official communication and mandated that “government documents issued to the public must be written clearly”. In India too, the website Nyaaya.in was launched in 2016 to decode legalese for people. Proponents of the plain-language movement argue that legalese alienates people and reduces their trust in government. After all, citizens can hardly be expected to abide by laws they cannot understand. Transparent and clear language, they say, can help people appreciate their rights and responsibilities, and engage more productively in civil society. These are lofty goals, but if you’ve had a brush with India’s legal system, you would probably be rooting for an Orwellian revolution as well. And guess what, you may even have Supreme Court (SC) judges for company. On 1 August, the SC issued a terse order terming a Himachal Pradesh high court judgement “utterly incomprehensible”. Harsh words, no doubt, but for an inkling of what the SC was up against, sample this sentence: “Since alternate to the institution of the extant writ petition, before this Court, the writ petitioner is leveraged, with a right to recourse, a, statutory remedy of constituting, an appeal thereagainst before the Appellate Authority, thereupon prima-facie the existence of the afore alternative statutory remedy, vis-a-vis, the, institution, of the extant writ petition, wherethrough, the writ petitioner, strives for a judicial review being made qua impugned Annexures P-12A and P-14, hence prima-facie renders it to be not maintainable before this Court.”
Just a couple of weeks later, the SC was left grappling with another convoluted ruling of the same high court. This time, in a sternly worded judgement on 16 August, Justice D.Y. Chandrachud castigated judicial writing that is cloaked in “the veneer of complex language”. “Incoherent judgments,” he observed, “have a serious impact upon the dignity of our institutions.” While noting that individual judges would inevitably have idiosyncratic styles of expression, Justice Chandrachud laid out the broad guidelines that his colleagues should keep in mind when composing and structuring judgements. . Over the years, the SC has often made similar appeals for brevity and clarity in judicial writing. Observers have pointed to the SC’s own tendency to author lengthy judgements that are often difficult to comprehend. In truth, this ailment plagues most law practitioners.
Lawyers are, in a sense, doomsayers. We try to anticipate everything that can possibly go wrong in a scenario and then draft laws or contracts that could solve each potential disaster. Lawyers must foresee the myriad possible futures that can arise out of a single event. Yet, when it comes to documenting these in simple terms, we often fall short.
Part of the blame lies in our zealous adherence to precedents. Legalese that has been in use for decades feels familiar and reliable to us, but this also perpetuates the use of anachronistic language that seems alien to today’s speakers of English. Overwrought drafting can also arise from grandstanding. In a profession that pits one against another in a battle of wit and intelligence, it is tempting to showcase mastery over words. This author pleads guilty too. However, in reality, being plain and clear is always more effective. So long as laws, judgements and contracts are laden with confusing legalese and needless jargon, they will continue to remain inaccessible to most people. For lawyers, judges and lawmakers, therefore, clear writing can no more be a luxury; it’s a necessity. Until such time that our Parliament enacts its own version of the Plain Writing Bill, it is incumbent upon us to embrace the principles of plain writing and try to keep things simple.
Rohan Banerjee is a lawyer based in Mumbai
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First Published:6 Oct 2022, 11:35 PM IST
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