Historical Background
The plain language drafting movement refers to the movement towards drafting legal documents in a manner which is free from legalese and jargon, and is comprehensible and accessible to not only those who are technically trained in the profession of law, but also laypersons who read the law.
The movement started as early as 1963, in the United States of America (the USA) with the publication of the book Language of the Law, by David Mellinkoff. The movement was later popularized by Richard Wydick’s 1979 book Plain English for Lawyers. This was followed by the famous promissory notes by Nationwide Mutual Insurance and Citibank in the 1970s, and in 1972, President Richard Nixon stated that the “Federal Register be written in layman’s terms”. This movement gained momentum, and in 1978 the State of New York introduced its plain language law (often called the “Sullivan Law” after the politician who introduced it) which required that all residential leases and consumer contracts be written in an understandable language. The same was followed by 10 other states. In 1980, the USA enacted the Paperwork Reduction Act, 1980 to promote plain language government forms for public discourse.
Comparative Analysis
In India, this movement has not yet broken much ground. It is common knowledge that laws in India are neither accessible nor comprehensible by the general public, and sometimes, even by lawyers. For example, the government had put in place a portal called IndiaCode in an effort to publish laws digitally. However, this portal suffers from serious shortcomings, such as poor readability, rudimentary search functions, and lack of updation of laws to reflect amendments; these issues together have led to a lack of accessibility to Indian law.
Other nations, such as New Zealand, the United Kingdom (the UK), Germany, Australia and Hong Kong, have kept the importance of plain language in mind while drafting laws. For example, the UK has launched the Tax Law Rewrite Project (TLRP), which aims to redraft tax legislation in a simple, accessible format, by reordering legislation, using modern language and shorter sentences, and providing consistent definitions and clearer signposting. Further, the USA has enacted the Plain Writing Act of 2010, which requires that federal agencies use clear government communication that the public can understand and use. The New Zealand Law Commission has a manual to “propose ways of making legislation as understandable and accessible as practicable and of ensuring that it is kept under review in a systematic way” as well as “ascertain what changes, if any, are necessary or desirable in the law relating to the interpretation of legislation”.
However, India does not have any such measures in place, despite the efforts of non-governmental organizations, such as Vidhi Centre for Legal Policy which released a Manual on Plain Language Drafting, to advocate for the adoption of the plain language drafting movement in India.
The Way Forward
Technological developments also play an important role when it comes to the language of the law. Since technology has made the drafting process easier, reproduction of sections have become increasingly common. A good example of this is the way lengthy judgements are written in India with reproductions of written arguments and laws. Readability of content on the internet is important for growing audiences who access soft copies of the law as well as virtual assistants like Alexa and Siri who also have to be able to work with it as well. And even Google increasingly uses well-written pieces of content for rich results, like featured snippets.
Some of the main changes that can be brought about while drafting laws include avoiding the use of latin and jargon. Terms such as heretofore, notwithstanding, provisos are all words which are commonly understood by lawyers. Such superfluous and difficult words in long sentences only lead to confusion for the common man whom the law is intended for. Using active voice rather than passive voice is also ideal in sentence construction where you want the readers of the law to engage with it.
Section 13(1) of the General Clauses Act, 1897 says -“words importing the masculine gender shall be taken to include females”. Even after the Supreme Court in National Legal Services Authority v. Union of India (2014) has recognized the right to self-gender identification, provisions in drafting have not changed. The names of laws have also become long and complicated. If the short title of the Bill is the name by which most people would refer to then, it would be helpful to have the official name of the text to be a user-friendly acronym. For example, The Sexual Harassment Of Women At Workplace (Prevention, Prohibition And Redressal) Act, 2013 which is the long title of the law, can be made shorter and referred to as the Sexual Harassent of Women At Workplace Act, 2013.
In 2018, the Drafting of Law in Plain Language Bill, 2018 was introduced in Lok Sabha by the MP Rajeev Shankarrao Satav, which aims “to establish a legal framework which mandates that all Government Bills and Acts be drafted using plain, clear and concise language”. Currently pending, this Bill requires the creation of a Legislative Drafting Manual and the constitution of a Drafting Agency.
Conclusion
Encouraging such a movement in India is the need of the hour. Right to access the law is fundamental to guarantee access to justice as people would otherwise be unaware of how to exercise their rights, challenge discrimination or hold decision-makers accountable. Laws are not just for lawyers, and for the rule of law to prevail in the true sense of the word, there is a need for proper dissemination efforts by the Union Government.
Kimble, Joseph (1992). “Plain English: A Charter for Clear Writing”, Michigan Bar Journal.
Felsenfeld, Carl (1981) “Plain English Movement, The Plain English Movement: Panel Discussion”, FLASH: The Fordham Law Archive of Scholarship and History.
Social Research Institute, ‘Review of Rewritten Income Tax Legislation’ (2011) (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/344921/report104.pdf).
United Nations, What is Rule of Law?, United Nations and the Rule of Law, https://www.un.org/ruleoflaw/what-is-the-rule-of-law/.
New Zealand Parliamentary Counsel Office, Drafting Manual.
German Federal Ministry of Justice, Manual for Drafting Legislation.
United Kingdom Office of Parliamentary Counsel, Drafting Guidance.
Australia Office of Parliamentary Counsel, Plain English Manual.
Hong Kong Law Drafting Division, Department of Justice, A Guide to Styles and Practices.
Vidhi Centre for Legal Policy, Manual on Plain Language Drafting (2017).
The Sexual Harassment Of Women At Workplace (Prevention, Prohibition And Redressal) Act, 2013.
The General Clauses Act, 1897.
The Paperwork Reduction Act of 1980 (Pub. L. No. 96-511, 94 Stat. 2812, codified at 44 U.S.C. §§ 3501-3521).
The Plain Writing Act, 2010 (H.R. 946; Pub.L. 111–274).
Drafting of Law in Plain Language Bill, 2018.
National Legal Services Authority v. Union of India (2014) 5 SCC 438.
Authored by Malavika Rajkumar and Kadambari Agarwal. Malavika Rajkumar is the Content Lead and Kadambari Agarwal is a Research Assistant, of Nyaaya, an initiative of Vidhi Centre for Legal Policy, New Delhi. They were assisted by Research Assistants, Mr. Kushagra Gupta and Mr. Abhijeet Vaishnav.