“ACCESS TO JUSTICE IN INDIA: THE CRUCIAL ROLE OF LEGAL LANGUAGE SIMPLIFICATION” BY - DR. NAMRATA TIWARI
“ACCESS TO JUSTICE IN INDIA: THE
CRUCIAL ROLE OF LEGAL LANGUAGE SIMPLIFICATION”
AUTHORED BY - DR. NAMRATA TIWARI
Assistant Professor
Career College of Law, Bhopal
Abstract:
Legal language is a
determining factor for access to justice in India. Legal language often
includes such complex terms and archaic expressions as to be a disabler to
self-help justice for those who are untainted with legal gobbledygook. It has
indeed created a widening chasm between lawyers and litigants. In such
scenarios, the rights of an individual cannot even be expressed succinctly.
With such challenges in mind, reforms have sought to write in ordinary language
and make the law more accessible. Such efforts include the plain language
movement, advocating for clear drafting and simple language usage, and
initiatives by the Indian judiciary and government that sensitize the courts to
effective communication. The E-Courts project enhances accessibility further,
besides reforms in legal education, where new lawyers are trained on technology
and given the chance to write in plain language. Effective are such legal
outreach programs and legal aid clinics in bridging the gap between technical
legal language and public comprehension. Emphasis, thereby, is put on both the
judicial decree and the controversial decisions of the Supreme Court regarding
the need for clear and easy understanding of the law. The development reflects
an increased acknowledgment that lawyer's language should be made simple for
the sake of fairness, equality, and justice in this legal field. This paper
therefore discusses the relationship between legal language and the access to
justice in India, done with an analysis of how the legislative reforms and
judicial decisions as well as specific case studies have dealt with the
problems created by complex legal language.
Keywords: Access
to justice, language of law, complexity, legal language simplification, legal reform
Introduction
Legal
language is, by its very nature, technical and technical and is used for
communicating specific meaning in the judicial system. In this process, it
becomes inaccessible to the non-law trained masses and thus denies them their
right to justice. Because of this, it carries with it a very limited meaning
under the legal system. However, this removes all claims to being able to
understand legal provisions to persons other than lawyers and barristers to
access justice. This is particularly so in the Indian legal system that has its
origins in the British colonial days.[1]
The continuation of this language post-independence has maintained the
dissociation between the legal community and the public. Latin phrases
generally, lengthy drafting, and formalistic expressions distance non-legal
people even further from the legal world. The "habeas corpus,"
"prima facie" and "mens rea" are the most frequently used
terms for legal parlance but cannot be conceived without training in law. Such
terminology is not only difficult to decipher by the common man but also laden
with historical connotations that will make it unclear exactly what is relevant
to contemporary times. For example, it makes it difficult to comprehend the
average citizen who is supposed to operate within this system, devoid of their
attorney's guidance.
The
inaccessibility of legal language affects directly an individual's ability to
seek and obtain justice.[2]
A litigant, in many instances, heavily relies on legal representation, which is
a complex description and a limitation imposed on legal language and can make
litigants over-rely on lawyers and increase legal costs. It can also be
characterized as highly formalistic, which may only make it seem inaccessible
or intimidating. The heavy use of passives, nominalizations, and other
formalistic features can make it obscure in meaning about legal texts and makes
it difficult for people to deeply engage with legal content.
Indian
legal system is founded upon the principles of 'fairness, equality and
justice'. On one hand, 'rule of law' stands supreme: everybody has to obey the
law; 'ignorantia juris non-excusat' that ignorance of the law is no excuse. On
the other hand, the laws are undoubtedly highly complex; difficult to access,
and impossible fully to understand. But this is overshadowed by the fact that
legal language is simply not accessible to the average citizen. While it serves
as a good communication tool among legal practitioners, legal language is also
crucial in the delivery of justice. Unavailability of legal language only
throws into jeopardy the foundations of justice by not allowing persons the
ability to participate properly in proceedings.
Impact on
Access to Justice in India
Barriers to Understanding Legal
Rights: These convoluted legal terms make it impossible for most Indians to get
an actual understanding of what their rights are under law. For example, a person
getting a legal notice or a summons from the court may not understand what the
paper would imply or what he has to do about it. It might lead to such a
situation that unknowingly people might forfeit their rights under law or
violate legal procedures. Legal language is particularly obtuse for marginalized communities, whose
main complaint would be in accessing legal information and resources. Such
communities more often face legal problems in topics such as land disputes,
labor rights, and access to public services and are the least well-equipped
with respect to navigating the legal system.
Problems with Court Proceedings: In India,
vast portions of the population cannot afford lawyers and therefore have to
appear personally before the courts. But the technical legal language of the
courts may weigh heavily against self-represented litigants while presenting
their case. Therefore, they will suffer from unequal treatment and injustice
since these individuals are at a disadvantageous position when compared to
litigants who can afford to have a lawyer. The language being used in courts,
especially in the higher courts, is often above what an average citizen will
understand. Consequently, the situation arises that people cannot be any
further away from engaging in their own judiciary processes, greatly
undermining the principle of equality before the law.
Impacts on Marginalized Communities: It
impacts most disproportionately the vulnerable marginalized communities of
India, including poor or low-income individuals, rural people, and linguistic
minorities. This is partly because such groups hardly raise enough money to
recruit lawyers or acquire legal education hence making it difficult for them
to understand how to maneuver their case in circles of law. The marginalized
groups are also likely to have legal issues in the form of land rights issues,
labor disputes as well as access to public services, and they are always the
lowest on the rung to understand and defend their rights legally. This just
perpetuates cycles of poverty and inequality, given that the people cannot
access justice nor protect their own interests.
Legal
Reforms and Simplification of Legal Language
In recent
years, it has become increasingly clear that simplification of the
"legalese" of court pleadings is essential for improving access to
court. There are different levels of the Indian court and legislative
authorities which have taken steps for legal reforms such that simple language
drafting techniques, streamlined legal processes, and modernized legal
terminology may be promoted.[3]
According to Chief Justice of India (CJI) D.Y. Chandrachud, the continued legal
reforms for easy access to the justice system are a necessity. His latest
declarations reflect the most up-to-date opinions about the infinite process of
law language improvement and the betterment of access to justice in India,
considering, above all, the recent criminal laws and actual development of
court processes in digitization.[4]
In recent
years, reforms have recognized the barriers that sophisticated legal
terminology creates to access to justice by making the language of law more
accessible and more comprehensible to the nonlawyer. By these, attempts are
made at opening up access to justice by ensuring such that terminology in use
should be accessible to non-lawyers and intelligible, clear, concise, and easy
to understand.
Plain Language Movement: Legal
drafting of all cumbersomeness and elaborate language and jargons: let them
argue publicity must cooperate minimizing the legalese head. Its core aim is to
enable not only legal practitioners but even lay person’s understanding of
legal language in a manner wherein no specialized paraphernalia is required.
In India,
the plain language writing movement is yet to make any meaningful inroads. It
is said India law is non consultable or comprehensible for the layman, and at
some times it does not even befits a lawyer.
In 2018, MP
Rajeev Shankar Rao Satav moved the Drafting of Law in Plain Language Bill in
the Lok Sabha with the objective to ‘provide a legal structure which will
require all Government Bills and Acts to be drafted in simple clear and short
language.’ Such a Bill is still pending but in its provisions there is the
indication of the need to prepare a Drafting Manual for Legislative Drafting
and the setting up of a Legislative Drafting Agency. In addition to this,
another case was filed by Dr. Subhash Vijayran at the Supreme Court in the year
2020 asking for the plain language to be adopted in all the government’s
communication, along with legal handbooks that are in bronzed also to the
laymen.
Addressing
the nation after the appointment of the Attorney General, Narendra Modi first
addressed the issue of the ‘legal language’ and how to make it easier to
understand. The reason why laws are thus so complicated, he highlighted, lies
to the fact that their language is obscured. He argued that Laws must be made
in such a manner so that even the poorest persons in the country understand the
same. In this regard, it was in response that the government came up with the
India Code portal seeking to publish the laws digitally in a bid to make them
available to the people but the efforts have been minimal.
Notably,
however, some Indian states have undertaken initiatives to audibly announce the
language that is used to fill legal forms, as well as government documents. For
example, Maharashtra is one of those states that have apparently made
improvements in the area of using simplified language for filling and
presenting legal forms and documents as a part of the general plain language
movement. In 2010, particularly, the Maharashtra government embarked on the mission
to do away with the thorny language in many of the standard legal forms
including those used in property transactions where the language was known as
plain Marathi. The aim was to ensure that such extended or broadened thorough
legal documents’ cover was made rather easy to read to the general public who
are not likely far from cinema watching English movies and reading legal
documents. It resulted in the simplification of more than two hundred legal
forms including property transfer forms. The outcomes were huge, especially
among rural people as they understood more clearly the documents that they
endorsed.[5]
By simplifying legal documents, middlemen might profit off the public's
confusion and reliance on them. This reform helped lessen that dependency.
Judicial Efforts to Promote
Accessibility: The Indian judiciary has of late begun to realize
the need to make the legal language accessible. In recent times, there have
been endeavors to present judgments, particularly pronounced by the Supreme
Court and the High Courts in an easier and concise language. It has been urged
that their judgments would not carry heavy legal jargon and skewed sentence
structures, especially in litigations where litigants do not appear with any
lawyer before the court. These efforts help make the law and its processes into
understandable projects to everyday human life.
In addition, courts are taking steps
to ensure that people involved in cases fully understand the proceedings. Some judgments are written in plainer,
simpler words and sentences today, avoiding obscurity and brevity. Lastly,
courts are now beginning to render brief summaries of judgments in regional
languages, making a judgment more accessible to a larger people.
Government Initiatives- The E-Courts Project: Increased
deployment of technology can help make access to justice even easier by
breaking the legal jargon barrier and resources. And increasingly, in India,
online resources in plain legal language and translation tools for legal
documents are resorted to so as to overcome the language gap. The Indian
judiciary, too, is embracing technology-on the lines of e-courts and digital
legal resources-such that legal information can become more accessible. The
Indian government's E-Courts project, launched way back in 2005, marks a
significant technological intervention for enhanced access to justice.[6]
One major
aspect of the project is that judgments and orders issued by courts are made
available digitally in local languages through the employment of plain language
summaries to facilitate greater accessibility to legal information. The
Ministry of Law and Justice also conducted an evaluation of E-Courts in the
year 2020, and it further noted the positive impact these reforms are
generating. The evaluation reported that the availability of judgments in
regional languages, coupled with plain language summaries, has substantially
improved public understanding of court decisions.[7]
Legal resources are usually scarce in the region, hence the project has proved
highly beneficial especially in rural areas. These technological interventions
could democratize access to legal language and lead to an improvement in
general public understanding.
Reforms in Legal Education: India has
also seen initiatives in the direction of plain language implementation in
legal education. The University of Hyderabad along with the Indian Law
Society's Law College in Pune started courses and workshops on plain legal
language. These programs are intended to instruct future lawyers in the preparation
of technically accurate but readable legal documents. The empirical data
generated from such programs indicate that law students who are trained in
drafting legal documents in plain language are better positioned to serve a
broader section of the population. Graduates are making adjustments to these programs and applying the
practices of plain language to professional work, slowly over time to help
bring more accessible legal documentation to India.[8]
Chief
Justice of India Justice Dhananjaya Y Chandrachud said law students should be
aware of the local language and rules of laws associated with the regional
problems so that the legal system may be made more accessible to people. This,
he also underlined, is part of taking legal education in a simple language; he
said that it was the deficiency in the legal profession at present.[9]
Legal Outreach Programs: Legal aid
clinics and outreach programs are another important way to narrow the gap
between legal language and public understanding. These programs mainly give
legal information in clear, understandable terms so people know their rights
and hence also navigate legal procedures. The Indian government and other NGOs
have initiated programs to improve legal literacy among marginalized segments.
Such programs have been designed to empower people with knowledge and tools
required for understanding and taking control of their legal rights.
Legal Aid Clinics and Literacy Programs: There are
few empirical studies on the outcomes of legal aid clinics and legal literacy
programs, which would otherwise be tantamount to indirect methods for studying
the effectiveness of language reforms in law. NLSIU, in 2015, had a study in
which it conducted evaluation of legal aid clinics in rural Karnataka. The
study determined that the success of clinics using plain language in their
legal advice and documentation was far greater in enabling clients to
understand their problems and the steps to resolve them. As the data show,
simplified translation support made a real lot of people able to do legal
affairs independently.
More
generally, an extensive study conducted by the Commonwealth Human Rights
Initiative (CHRI) of West Bengal in 2018 showed that with legal literacy
programs applied through more accessible contents in local languages,
participants actually achieve higher degrees of awareness about their rights in
the legal process.[10]
Indeed, this increased participants' level by 30 percent to identify and
express their respective rights about laws on issues such as land disputes,
labor rights, and others.
Judicial
Decisions: Toward A Plain Language Mandate
for the
Supreme Court
The Indian
judiciary has also acknowledged the necessity of the use of simple language in
the legal realm. Several landmark judgments have been promoted as being
clear-cut and 'user-friendly'. The present case can be visualized as one of
them in this context, when in the judgment of Rajbala v. State of Haryana[11]
passed in 2014 judgment was categorically opined that judgments should be
penned in simple, crystal plain language. It was the perception of the Court
that using very technical and obscure legal phrases and tortuous sentences
might actually hinder the lay public's comprehension of judgments. The case was
an important stride towards the use of plain language in judgments of courts.
Among such
cases is that of Anuradha Bhasin v. Union
of India[12]
in 2020, wherein the Supreme Court advocated for the clarity of the
transmission of the decisions and orders of the government, especially those
which essentially touch upon people's fundamental rights. The Courts asserted
that any order hindering a person's fundamental rights should be conveyed to
the public in a clear manner, reiterating that it should not be kept secret,
thereby being readily available for persons to examine.
Conclusion
Indian
legal language remains dauntingly inaccessible for many today. While judicial
reforms and efforts by recent, progressive judges to achieve simplicity in
language have shown improvement, much is yet to be achieved. Reforms are
ongoing, as emphasized by CJI D.Y. Chandrachud, which means doing so with
ever-increasing critical importance to make the system as accessible to all
citizens as it is to legal experts. The future of legal language in India would
probably be marked by continuous efforts toward rebalancing the precision
required in legal documents with the accessibility that marks full justice and
true inclusiveness.
Of course,
in the Indian context, with great diversity in language, education, and socio economy,
simplification of legal language is not only a matter of legal reform but also
a fundamental issue of human rights. With India moving closer to the
constitutional promise of justice for all, it can continue on the strategy of
prioritizing simplification of legal language and promoting legal literacy.
This calls for concerted action by the judiciary and legal professionals,
policymakers, and civil society to ensure that legal language no longer poses a
barrier but instead acts as a bridge to justice. It is a question not only of
legal reform but also of the very fundamental human right: access to justice is
instrumental for the protection and realization of all other rights. These
reforms contribute not only to better access to justice but also serve for
greater transparency and accountability in the legal system. It is quite
obvious that professions like law, engineering, physics, and philosophy have
specific terminology that cannot be replaced easily.
However,
since law essentially deals only with the relationship between individuals and
their communities or government, it does not require the use of French or Latin
terms. Although the historical importance of legal jargon, in use for
centuries, cannot be simply overnight dismissed, the need for streamlining
language used in statutes is apparent, especially when statutes demand direct
participation from people.
[1] Gupta, R., Colonial Legacies
in Indian Law: Language and Access to Justice, 12 Indian J. Legal Stud.
101, 101-120 (2020).
[2] Ghosh, A., Legal Language: An
Obstacle to Access to Justice?, 10 J. Indian L. & Soc'y 45, 45-67
(2019).
[3] Mukherjee, S., Decoding
Legalese: The Language of Law and Its Implications, 15 Legal Rev. 78,
78-92 (2018).
[4] Chandrachud, D.Y., Access to
Justice: The Role of Language in Law, Speech at National Law Conference (New
Delhi, 2021).
[9] CJI D.Y. Chandrachud, Future
of Legal Language and Access to Justice, Address at Judicial Reforms
Conference (2023).