Purge legalese, use plain English

When I was in service, while speaking at a symposium organised for boiler operation engineers on the Boiler Act and Boiler Operation Engineers Rules, I cited the Latin maxim ignorantia juris non-excusat, (ignorance of the law is no excuse,” which implies that a person who is unaware of a law may not escape liability for violating that law merely by being unaware of its content. One young engineer got up and said that in India, most of the acts and rules are in English, with a lot of words in Latin. When we are not proficient in English itself, how can you expect us to understand Latin words and be aware of the Act and its rules? Even though the commonly spoken English language has evolved over time with good equivalents for archaic phrases, why can’t the rules be written in plain English, which has the same legal effect? I was perplexed by his question.

The question prompted some introspection: “Being an enforcement authority, when I am not familiar with most of the Latin words and dense legal jargons used in the act, how can I expect the boiler users and boiler operation engineers to be conversant with the act?”

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India has more than a thousand central laws and a larger number of state laws, and Indian laws are riddled with complex language and Latin words (ipso facto, ab initio, ex parte, ex post facto, de minimis, in pari materia, in personam, mens rea, mutatis mutandis, pari passu, res judicata, quasi, sui generis) that make legal knowledge difficult to comprehend by the common man. Since laws were originally written in Latin or French, many of the common terms are still being used. Advocates use words that date back a thousand years and are not current, such as aforesaid, forthwith, henceforth, thereto, and thenceforth. Instead of using one word to communicate an idea, they use several, like “null and void and of no effect whatsoever,” when just “void” or “null” would be good enough.

We come across certain words whose legal meanings differ from their plain-English meanings. To non-advocates “demise” means a person’s death; to advocates, it means “transfer of a property by lease”. To non-advocates “stay” means “remain”; to advocates, it means “postponement or suspension of a judicial proceeding”. To non-advocates “entertain” means to provide amusement or hospitality to a guest; to an advocate, it means “to give judicial consideration to”. To non-advocates “avoid” means to “escape” or “evade”; to an advocate, it means “to make void or undo”. To non-advocates, “determine” means “ascertain”; to advocates, it means “terminate.” To non-advocates “presents” means gives; to advocates, it means “this document”.

Recently, 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 since the order that was being appealed had been written in a language so convoluted that even the most learned legal minds in the country struggled to fathom what exactly it was saying. The order was returned with a request that it be rewritten. This exemplifies the legalese that has taken over the Indian legal system.

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In many countries, when a law is made, one version is in proper legal terminology, but along with it, a parallel version of the same law is also prepared in a simplified language for the common man. Most of the modern legislation in the UK demonstrates that laws are drafted more simply than before. 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. New Zealand has passed the Plain Language Act, bidding farewell to confusing jargon and complex language in its bureaucracy and paving the way for clear communication.

The central government has constituted a team to examine a proposal to have two drafts of every piece of legislation, one in proper legalese and the other in plain English that is comprehensible to the common man. It’s time India considered passing similar legislation. India’s democratic and participatory society needs a plain-language Language Act to function properly, as the current legal language is not only incomprehensible to common citizens but also to many lawyers. The legislation will aim to make laws more accessible and comprehensible to citizens, especially those with disabilities and lower education levels. An incomprehensible legal discourse that is accessible only to a few has dictatorial implications. Plain legal language brings substantial benefits to lawyers, clients, and citizens at large. It can be legally safe; it saves time and money; and it is easier for clients and citizens to grasp the laws that bind them.

(The author is a retired deputy director of Boilers.)