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Last month, while considering an appeal on a decision of the Himachal Pradesh high court, the judges of India’s Supreme Court found themselves at an uncharacteristic loss for words. The order that was being appealed had been written in language so convoluted that even the most learned legal minds in the country struggled to fathom what exactly it was saying. “How do we understand this judgment?” asked Justice K.M. Joseph in evident frustration, “Is it in Latin?” To which even the senior counsels present had to concede that the order was indecipherable. The order was returned to the aforesaid high court with a request that it be re-written.
While this particular incident might be an extreme example, it is emblematic of a profession in the grip of a malaise of intentional incomprehensibility. We lawyers tend to cloak ourselves in a cloud of jargon so obscure as to be unintelligible to anyone save those well schooled in its peculiarities. We punctuate our sentences with archaic aphorisms and Latin maxims, and construct them to frequently double-back on themselves, so much so that by the time you reach their end, you struggle to remember how they began.
The justification most frequently handed out for why this sort of dense language needs to be used is that 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 should things left unsaid actually come to pass.
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 career, starting with the contracts we draft as young apprentices, but then also affecting the legal opinions, arbitral awards and judicial decisions that we issue as we 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.
This is why our laws end up being so hard to comprehend; why laypersons to whom they apply are unable to understand their implications without the assistance of a lawyer. 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.
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. 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. However, in addition to simplifying the language of our laws, I would recommend that the government undertake 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 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.
Furthermore, 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. 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.
Secondly, 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. While the specific legal obligations that bind the regulated entity will continue to be contained within the text of the statute, this note can provide necessary explanations. 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.
Finally, serious efforts should be made to reduce the burden of compliance. Where information is sought from regulated entities, the government should only be allowed to make consolidated information requests instead of constantly harassing citizens with repeated information requests. Where forms have to be filed, they should be designed to only collect new information essential for the regulatory objective, instead of collecting the same data again and again.
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.
Rahul Matthan is a partner at Trilegal and also has a podcast by the name Ex Machina. His Twitter handle is @matthan
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