On 15 October, the Supreme Court heard an unusual petition, filed by Delhi-based lawyer Subhash Vijayran. He wanted the court to examine the issues within the judicial system.
“The writing of most lawyers is: (1) wordy, (2) unclear, (3) pompous and (4) dull,” it began. “We use eight words to say what can be said in two. We use arcane phrases to express commonplace ideas. Seeking to be precise, we become redundant. Seeking to be cautious, we become verbose. Our writing is teemed with legal jargon & legalese. And the story goes on.”
Vijayran sought a few simple directions: Wherever possible, simplify the language in legal and government communication. Set a page limit for pleading and a time limit for oral submissions. Introduce “Legal Writing in Plain English” as a mandatory subject in LLB courses, in order to create a batch of lawyers skilled in communicating with the common man. “For whom are the Constitution, Law and Legal System? For the lawyers? Or the judges? Or—most important, but often neglected—The Common Man?” Vijayran wrote in his petition.
There have been efforts to simplify language earlier as well. In 2017, the Vidhi Centre for Legal Policy, a Delhi based think tank, released a Manual on Plain Language Drafting. The Society of Indian Law Firms too has reportedly been training members in plain English. The National Judicial Academy in various parts of India has courses for judges on ways to make judgements easy and accessible. These initiatives, however, are voluntary.Vijayran’s petition, the first of its kind in the Supreme Court, seeks institutional reform.
Part of it, Vijayran tells Mint, has to do with personal experience. “My parents are not educated. Most of the clients I represent aren’t educated. I am the first of my family to go to school. I am skilled at speaking English, but not fluent. I don’t have a high level of grammar. But it shouldn’t matter. You don’t need complexity in communicating ideas.”
And yet, that wasn’t what law schools taught. “At Delhi University (where he studied LLB from 2016-19), they would give us case material and we had to study. A lot of judgements, I had to read many times to understand. The writing was so bad, sometimes sentences would start, go on for a whole page and you would not find a full stop.” He doesn’t want to name the offenders—no lawyer wants to risk accusations of contempt of court—but adds that 60-70% of the judicial documents he has read are verbose. “But no one wants to change. Chal raha hai, bas (it goes on).”
The apex court was sympathetic. “You should also say, if this isn’t done, people will stop reading the laws and judgements,” Vijaran recalls the bench, led by Chief Justice S.A. Bobde, telling him. The judges then issued a notice to the government. It is to be heard in December.
Legalese in India has a colonial legacy. It borrows heavily from Latin (ab initio, ex parte, in personam) and French (plaintiff, covenant, larceny) and mixes this with terms rarely used outside courtrooms: from “aforesaid”, “forthwith”, “henceforth” and “thenceforth”, to the many, many siblings of “here” (herein, herewith), “where” (wherein, whereof) and “there” (thereon, thereto).
“The origins of legalese in India go back to the 19th century,” says Avinash Pandey, head of the linguistics department at Mumbai University. “The British introduced it for their own benefit, and for a few Indians who were educated and could act as intermediaries between the state and the people. You can see it from the sheer number of freedom fighters in India who were lawyers, including Dr B.R. Ambedkar and Mahatma Gandhi.”
The practice continued after independence. It is integral to the Constitution, Indian Penal Code, court communication and often, the laws passed by Parliament. Quite often, the translations to Indian languages are as complex. There’s an unwillingness to reform, partly because it benefits those within the system, says Pandey. “When you create jargon which isn’t understood, you prevent larger participation. It helps create an aura, sanctity around an institution. It helps keep it above criticism.”
A classic example is a 2016 judgement on a landlord-tenant dispute, delivered by the Himachal Pradesh high court. Here’s an excerpt: “However, the learned counsel...cannot derive the fullest succour from the aforesaid acquiescence... given its sinew suffering partial dissipation from an imminent display occurring in the impugned pronouncement hereat wherewithin unravelments are held qua the rendition recorded by the learned Rent Controller...”
In April 2017, the apex court sent this back for redrafting, saying, “We will have to set it aside because one cannot understand this.”
Where comprehension isn’t an issue, brevity is. This problem begins from the chargesheets—the Delhi police filed a 17,500-page chargesheet recently in the Delhi riots case—and goes all the way to the judgements, like the 1,030-page judgement in 2015 that ruled the National Judicial Appointments Commission unconstitutional.
Another quirk is ornamental language and literary references, especially in landmark cases. Some lawyers say V.R. Krishna Iyer, a Supreme Court judge from 1973-80, was known to write with “literary flair”. Sample this: “The art of statutory construction seeks aid from connective tissues as it were of complementary enactments. This mode offers a penological synthesis Parliament legislatively intended.” His style is said to have “inspired” countless judges, often with results that were sometimes amusing, sometimes embarrassing.
The recent Supreme Court verdict on passive euthanasia falls in the “literary” league. The verdict, by a five-judge bench in March 2018, recognised a terminally-ill patient’s right to refuse medical treatment. It spans 538 pages and has references to, and quotes from, Indian figures such as Swami Vivekananda and Charvaka, Greek thinkers like Epicurus, Plato and Hippocrates, writers William Shakespeare and Ernest Hemingway and poets Alfred Tennyson, John Locke, John Dryden and John Donne. There are also lines from a Bollywood song, Rote Hue Aate Hain Sab, from Muqadar Ka Sikandar.
Earlier this week, Amitabh Rawat, an additional sessions judge in Delhi, granted bail to an accused in the Delhi riots case in verse. A memorable bit reads:
Stop! Stop! Stop! Stop;
I have heard, heard a lot.
Mind is clear, with claims tall;
It’s my time to take a call.
V.M. Kanade, a judge who retired from the Bombay high court, says he understands the temptation to sound “learned”. “All judges want their judgements to be lauded as good judgements. I have seen people who have their own notebooks, where they jot down sentences they can add to their judgements to make them ornamental.”
Kanade is sympathetic to the reasons for legalese, though. Legal language is often technical, and many of the terms we call “legalese” are often used for precision. Then there’s the issue of time, he points out. It’s not easy to write simply. And considering the burden on the judiciary, judges cannot keep revising drafts.
During his career, Kanade wrote over 34,000 judgements. He says he tried to keep them easy to understand, even resisting the allure of a Shakespeare quote. “Therefore, my judgements perhaps aren’t ‘great’ judgements. But I don’t mind that,” he laughs.
To Vijayran, a “good judgement” follows the principles of “good writing”: You can’t lose the reader. Make one point with each sentence, convey one idea per paragraph. Full stops over semi-colons, commas over clauses. “If there is so much info in a single sentence, the person’s mind will do gymnastics.”
Two years into the field, it’s a principle he tries to live by. “I revise my drafts 10-11 times,” he says. “I try to reduce it to 40% of what I start with.” The real challenge will come when he starts 16-hour workdays, like many of his peers.
But for now, he is clear on what he holds dear. “There’s an anecdote in legal writing I really like,” he says. “Once, someone asked a sculptor how much time he takes to finish a piece of work. He said, I keep working till they take it away from me.”