With New Zealand passing the Plain Language Act, bidding farewell to inexplicable jargon and complex language from its bureaucracy, it’s time India considers passing similar legislation. Indian laws have frequently been criticized for their poor and archaic drafting that makes them difficult to comprehend. The reluctance of Indian lawmakers to depart from traditional practises of drafting has resulted in legalese that is inaccessible not only to common citizens but also to many lawyers, thereby making it antagonistic to a democratic and participatory society. An incomprehensible legal discourse that is accessible only to a few has authoritarian implications.
Plain Language Act’s Objectives
The Plain Language Act aims to make democracy more inclusive, especially for people with disabilities and those with lower levels of education. Since legalese takes longer to draft, read, and understand, it often falls short of the drafter’s primary goal of precision. The dissatisfaction with legalese sparked the Plain Language Movement in the 1970s, which sought to make legal papers, especially those used by consumers, accessible to them. Today, several jurisdictions support the use of plain language in drafting laws. These include Australia and the United Kingdom, where there are manuals dedicated to plain language drafting. A prominent example of the use of plain language drafting in the UK is the Tax Law Rewrite Project (“TLRP”), which aimed to rewrite direct tax legislations into a format that was clear and simple to comprehend by utilizing more modern language and concise sentences. Further, most of the modern legislation in the UK demonstrate that laws are drafted more simply than before. Similarly, the United States has enacted the Plain Writing Act of 2010, which requires that federal agencies use clear government communication that the public can understand and use. Although the approaches used in these jurisdictions vary, they all share the same goal: to make official writing simpler by eliminating unnecessary obscurity and complexity.
Relevance in the Indian Context
The Plain Language Movement hasn’t made much progress in India yet. Indian laws and legislations have often been mired in the grip of a malaise of intentional incomprehensibility. Of late, while deliberating an appeal on a ruling of the Himachal Pradesh High Court, the judges of India’s Supreme Court found themselves at an uncharacteristic loss for words. The order under appeal was written in such complicated language that even the most learned legal minds in the country struggled to understand what it was saying, and as a result, the order was returned with a request that it be rewritten. This is emblematic of the legalese that has gripped the Indian legal system.
The need to simplify the legal language was highlighted by Prime Minister Narendra Modi when he emphasised that obscurity of law creates complexity and stressed that while framing a law, the focus should be such that even the poor could understand the new law. In this regard, the government put in place a portal called IndiaCode to publish laws digitally to make them more comprehensible but without any effect. Furthermore, in 2020, Petitioner-in-Person Dr. Subhash Vijayran filed a plea before the Supreme Court seeking directions for the use of plain language in drafting and issuing of all government communications, as well as issuance of handbooks of laws of public interest that are easily understandable to the layman. However, the plea has yet to see the light of the court.
Arguments Against the Plain Language Act
The most common justification for using such dense language is that it is the only way to ensure that every possible consequence is adequately addressed. This maximalist approach to drafting is what causes legal documents to be so complex. The advocates of this traditional approach of using complex legal language argue that the simplicity of expression and certainty of content are not always compatible, since the simplest form of expression often results in ambiguity. Since legalese has developed with the law, they argue that it is more precise and is better suited to deal with the complexities of the subject. According to proponents, precision requires that a statute accurately gives effect to policy decisions. Complex drafting, thus, is merely an unintended result of prioritizing certainty.
This assertion, however, is not uncontested. According to Joseph Kimble, author of Lifting the Fog of Legalese and a strong supporter of the plain language movement, plain language is usually more precise than traditional legal style—it’s just that the imprecision of legalese is more difficult to detect. It is the drafter’s responsibility to ensure that plain English drafting has the same legal effect as traditional drafting. As a result, there is no barrier to using plain English to write text that is leaner, cleaner, and more accessible, as long as the meaning of the text remains unchanged.
Another compelling argument is that it is impossible to define a language standard clearly enough to measure compliance. There is, however, no objective gold standard of plain language: such a standard is determined by the manner that influences literary standards outside of the legislative context at the time.
We do not yet know whether Plain Language Act passed in New Zealand will make government documents more accessible for common citizens. However, it surely will pave the way for clear communication. The need for a Plain Language Act in India is evident, as the current legal language is not only inaccessible to common citizens but also to many lawyers. To move forward, the we can take the following steps:
1. Conduct awareness campaigns to educate the general public about the benefits of plain language in laws and legislation.
2. Consult stakeholders, including legal professionals, academics, and government agencies, to determine the best approach for a Plain Language Act in India.
3. The government can establish guidelines for plain language drafting of laws and legislation to ensure clarity and accessibility to all.
4. Provide training and resources to legal professionals and government agencies to improve their plain language drafting skills.
5. Regularly review guidelines and practices related to plain language drafting and update them to ensure their effectiveness and relevance.
A Plain Language Act in India is crucial for the country’s democratic and participatory society. The act will aim to make laws more accessible and comprehensible to citizens, especially those with disabilities and lower education levels. Many have criticized the outdated and convoluted terminology of the Indian legal system, which frequently renders legislation incomprehensible even to lawyers. Supporters of the plain language movement have contested the argument against the act, that complex language is necessary to ensure precision. Plain language can be just as precise. Despite challenges in defining a clear language standard, the benefits of a Plain Language Act—promoting inclusiveness and accessibility in a democratic society—far outweigh the difficulties.
Shabbir Ahmed is a third year B.A. LL.B. (Hons.) student at the Faculty of Law, Jamia Millia Islamia, New Delhi, India.
Suggested citation: Shabbir Ahmed, Jettisoning Jargon: Why India Needs Its Own Plain Language Act, JURIST – Student Commentary, February 3, 2023, https://www.jurist.org/commentary/2023/02/shabbir-ahmed-india-plain-language-act/.
This article was prepared for publication by Hayley Behal, JURIST Commentary Co-Managing Editor. Please direct any questions or comments to her at firstname.lastname@example.org