Accessible Law: If law is to be the bedrock of our lives in India, conversations, debates and disagreements about the law cannot remain the preserve of lawyers and judges alone.
The rule of law requires citizens to feel bound by the law, and like with most things that bind us, have an opinion on it. Unfortunately, meaningful conversations about the law outside the fortified walls of the legal fraternity and the intelligentsia are scarcely possible.
With nearly every other sentence in an act of Parliament averaging more than 50 words, often comprising rare gems such as “inter vivos” and “mutatis mutandis” , laws are designed to obstruct mass understanding. When such archaic lawmaking practices are perpetuated in 21st century India, it demonstrates a lack of original thinking, and more important, self-worth as a nation.
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Not only is this practice perpetuated, but the legislative department at the ministry of law and justice also appears to know no other way to draft a law. Take, for example, the simple matter of declaring a regional centre for biotechnology as an institution of national importance in Section 4 of the Regional Centre for Biotechnology Act, 2016. The section reads:
“Whereas the objects of the institution known as the Regional Centre for Biotechnology are such as to make the institution one of national importance, it is hereby declared that the institution known as the Regional Centre for Biotechnology is an institution of national importance.”
While this may appear par for the course for a lawyer, it is plainly nothing short of an absurd tautology. Further it uses syntax (“whereas the objects”/ “it is hereby declared”) that makes understanding difficult. The Hindi version is even more difficult to understand, and arguably, incorrect, in its translation. Imagine an alternative which will have the same legal effect:
“The Regional Centre for Biotechnology is declared as an institution of national importance. This declaration is on the basis of its objectives as an institution.”
To traditionalists, this formulation may seem inexact. But it is a bogey that to be precise, the language to be used must be verbose, complex and unnatural. Such language is simply a Victorian legacy imposed on a population, the majority of which neither understood English nor law. Proof of its superfluity lies in the fact that even in England, legislation drafting is now in plain language. It is ironic that the legislative department of the Government of India continues to be more loyal than the king.
To others, the suggested change may appear to be a merely cosmetic one. While it is admittedly a surface-level change, its implications for democracy run deep. If laws are drafted in vernacular languages and English as commonly spoken in India, they would allow for easier understanding. Easier understanding would reduce interpretive wrangles that courts face with poor legislative drafting.
This would save judicial time and have a salutary effect on reducing judicial delays. This, in turn, would improve the ease of doing business, and provide quicker justice to citizens.
India’s law and justice framework is one of the last bastions of practices associated with colonial rule. Many of these practices — respect for an independent judiciary, an authoritative body of common law, insistence on procedural propriety, have created greater public confidence in the law and the courts. But several practices, verbose lawmaking being one of them, are anachronisms.
If our conversations for a better tomorrow are to encompass the law, we must be able to make sense of our laws in the first place. To do this, India must be original and shed its colonial detritus of Victorian lawmaking. It is time for simpler laws drafted in plain language that the common person can understand.
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Source: Hindustan Times | Written by: Arghya Sengupta