Accessible Legal Systems

The Indian Supreme Court’s struggle to decipher a convoluted legal order highlights a broader issue of intentional incomprehensibility in legal language. This complexity often makes laws inaccessible to laypersons. We need plain language reforms, comprehensive lists of laws, explainers for every law, and measures to ease the compliance burdens if we are to make the legal systems more accessible and democratic.

This article was first published in The Mint. You can read the original at this link.

Earlier this year, while considering an appeal from the decision of the Himachal Pradesh High Court, the judges of the Supreme Court found themselves uncharacteristically at a 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 KM Joseph, in 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 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 the 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 the end you struggle to remember how they began.

Why is the law so convoluted?

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 when things left unsaid actually come to pass.

This maximalist approach to drafting is the reason why legal documents are always so dense. The 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 - that are, themselves, drafted by lawyers trained in the same approach.

This is why our laws end up being so hard to comprehend. Why the laypersons to whom they apply, are unable to understand their implications without the assistance of a lawyer. In a world that is increasingly prioritising the democratisation of access, this sort of forced ignorance that arises out of unwarranted complexity is being increasingly viewed with disfavour.

A number of countries have enacted legislations that impose plain language obligations on government functionaries requiring them to communicate in language 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 United Kingdom, the Tax Law Rewrite Projectsimplified tax laws so that taxpayers could understand them without needing the assistance of lawyers and chartered accountants.

Three Suggestions for Reform

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 legal system more accessible and effective.

Exhaustive List of Laws

First, all government departments should be require to publish on their website, 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 helpless to do anything but 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 that is used for enforcement and other government departments would do well to learn from them.

Explainers for Every Law

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 that they are required to follow. While the specific legal obligations that bind the regulated entity will continue to be contained within the text of the statute - this note will provide necessary explanations.

A good example of how something like this can be implemented is the terms of serviceof the photography website, where each clause has been explained in simple layman’s language alongside the standard contractual clauses. In the US a new titled the Terms-of-service Labelling, Design and Readability Act (or TL;DR for short) is looking to implement this approach more broadly. All entities to whom it is applicable will need to entity to include a short-form terms of service summary statement along with include a graphic data flow diagram on their website. I don’t see why we can’t implement something like this in the design of our laws.

Make Compliance Easier

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 repeatedly collecting the same data again and again.

Our legal system does not need to be inaccessible. A few strategic steps in the right direction will go a long way to democratising public access to it.