‘Archaic terminology and boilerplate clauses pervade nearly all legal texts, government communication and personal dealings ranging from laws, notices, circulars and orders to contracts, wills and deeds’
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Although laws regulate virtually every aspect of our daily life, they are largely unintelligible, technical and beyond the grasp of an ordinary citizen. Take, for instance, a clause inserted in the Public Examinations (Prevention of Unfair Means) Bill, 2024, which was enacted recently. Under the heading ‘Laying of rules’ it reads: Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.”
Another example
Consider this provision in the Banking Laws (Amendment) Bill, 2024, which was introduced in the Lok Sabha in August 2024. It reads: if the default occurs again on the last day of the next succeeding fortnight, or, if the last day of such fortnight is a public holiday, on the preceding working day, and continues on the last day of the succeeding fortnights or preceding working days, as the case may be, the rate of penal interest shall be increased to a rate of five per cent. per annum above the bank rate on each such shortfall in respect of last day of that fortnight and last day of each succeeding fortnight or preceding working day, if last day of such fortnight is a public holiday, on which the default continues;”….
This drafting is not an anomaly. It is the standard practice and requires multiple rounds of rereading. India has over 880 central laws and several State laws. The retention of jargon in our legislation is more a matter of tradition than out of utility or necessity.
Incomprehensibility across documents
Fossilised middle and old British English terms (such as ‘notwithstanding’, ‘hereunder’, ‘whereupon’, ‘forthwith’) and Latin words (stare decisis, prima facie, actus reus, inter alia and sub judice) prevail — words that have long disappeared from everyday conversation. The continued usage of legalese is deeply entrenched in India’s legal system and the reluctance to deviate from this norm severs the layperson from the matrix of the legal and justice framework.
Statutes are usually replete with lengthy sentences and laden with obfuscated colonial-era terminology and incomprehensible language. Resultantly, this widens the gulf between the law and the very citizens it intends to govern and protect. Laws are perceived as a source of confusion and alienate the ordinary citizen. Archaic terminology and boilerplate clauses pervade nearly all legal texts, government communication and personal dealings ranging from laws, notices, circulars and orders to contracts, wills and deeds.
Laws are meant to regulate and serve all members of the society. However, a vast proportion of the population views laws and the formal legal system as unfamiliar and intimidating fortresses.
In a welcome move, the government recently expressed its plans to comprehensively reevaluate the existing Income-Tax Act to make it concise and lucid and to simplify taxation, enhance tax-payer services and minimise litigation.
The goal of access to justice
To fulfil the overarching vision of masses gaining access to justice, people first need to be aware of their obligations and rights and the means to enforcing their rights. Spreading legal literacy and awareness and enacting simple and accessible laws are paramount. Transparent language in laws, contracts and legal processes would save costs and time and would enable individuals to take or make well-informed decisions without always resorting to external legal counsel.
Ornamental arcane terminology in legal documents favours the turf of the legal profession and shields it from public participation, scrutiny and criticism. Expecting obedience to law that only a select few understand undermines the principles of fairness and accessibility. Indian laws, for the sake of its primary audience, need to be simpler to read and digest. Simplifying legal language is not merely an administrative checkbox but a significant move towards fostering inclusive justice. Legalese is arguably a product of the past. The language of Indians laws must be concise, clear and plain without altering the intended meaning and creating ambiguities. Ignorance of law is no excuse, but the preservation of colonial legacies and verbose convoluted language are antagonistic to the understanding of the law.
Anshritha Rai is a lawyer
Published – October 12, 2024 12:02 am IST
