It is high time the needs of the reader – and user – were placed above the narrow interests of those drafting the law
This is what Section 35 of the Indian Transfer of Property Act, 1882 says:
“Where a person professes to transfer property which he has no right to transfer, and as part of the same transaction confers any benefit on the owner of the property, such owner must elect either to confirm such transfer or to dissent from it; and in the latter case he shall relinquish the benefit so conferred, and the benefit so relinquished shall revert to the transferor or his representative as if it had not been disposed of, subject nevertheless, where the transfer is gratuitous, and the transferor has, before the election, died or otherwise become incapable of making a fresh transfer, and in all cases where the transfer is for consideration, to the charge of making good to the disappointed transferee the amount or value of the property attempted to be transferred to him.”
When I show this section to lawyers and law students who have not had the displeasure of encountering it before, almost always and immediately, they take on themselves the unkind task of interpreting it as quickly as possible. Some take a minute or two; many take a lot more time. All of them, however, go about this task with a strange smugness, the kind that only specialisation can bestow.
On the other hand, the non-lawyers I’ve shown Section 35 to almost always have three common questions that I can dutifully paraphrase as:
a) Where are the full-stops in this thing?
b) Why is this entire section one large amorphous sentence?
c) What in the name of Atticus Finch does this mean?
These are important questions for us lawyers to address, but in order to address them, it might be important for us to look away from the content (what we love calling “substance”) of the wall of text that is Section 35 and think a bit more about its form.
The Flesch-Kincaid index is a readability test that indicates the comprehensibility of a document. In this test, higher scores indicate higher readability and lower scores indicate lower readability. Usually, scores range from 0 to 100. Scores between 90 and 100 indicate that most sixth standard students can comprehend the document. Scores between 60 and 70 indicate that most tenth standard students can comprehend the document. And scores between 0-30 indicate that university graduates would be best suited to understanding the document. The Harvard Law Review generally records a readability score of 30-35.
Section 35 of the Transfer of Property Act registers a score of -63 on the Flesh-Kincaid index. In other words, it is utterly and completely incomprehensible. Granted, a readability formula is a primitive tool to determine how readable a document actually is. However, at least it lets one frame one’s bewilderment at the sheer density of statutes such as Section 35 in numerical terms.
It is safe to say that the meaning of Section 35 has not been conveyed to us in the best possible form. In fact, it may just have been conveyed to us in the worst possible form. Yet, the ordinary course in law schools, law offices, legal academia and the judiciary would be to interpret and make specialised sense of this clutter. Precision may not be the forte of the legal field, but many of us make up for this by aggressively moving forward with the conviction that it is, taking pride in our ability to explain legalese using even more legalese. In other camps, there are those who think that legal language does indeed have a tendency towards clutter and purple prose, but have resigned themselves to the peculiar notion that the language of the law can’t be any better.
Maybe this assumption that legal language is handed down to us in the best possible form is not a matter of coincidence. Maybe this assumption about the neutrality of the form of legal language has particular socio-economic value to the juridical field.
The French sociologist Pierre Bourdieu theorised that the drive towards codifying legal language in a form that appears regular, rational and suitable to the social status of the law is also a drive towards creating artificial value. The form of legal language is constructed in such a way that it authorises only those within the legal field real access to its “substance”. This establishes an impenetrable boundary between the law and its subjects and simultaneously creates a greater demand for the specialised services of the legal field.
In a Kafkaesque turn, to the outsider, walls of text like Section 35 actually begin to resemble large, amorphous, unscalable walls.
The Indian context
A skeptical inquiry into the form of legal language might be especially important in the Indian context. Our laws are drafted in a language that the majority of us do not read or write. Most of us who understand the language find the language of the law inaccessible. Most of our laws were drafted in the late 1800s and early 1900s by colonial rulers. Other than a few notable exceptions, most of these laws were made by inefficient colonial drafting committees. We have the largest population of illiterate adults in the world. It is safe to say that Indian legal language is marked by a communication gap at the most basic level.
There has been a study by Robert Kidder documenting the strategic use of the legal register by several lawyers in Bangalore to intimidate laymen to the point of “linguistic blackout” – a situation where jargon quite literally overpowers plain-speak into submission and convinces the plain-speaker that there is no choice but to avail of the jargon-user’s services. Kidder observed that this practice was done systematically across litigation practices to exert linguistic authority over clients, most of whom did not even understand English. The ritual of reciting important-sounding clutter weaves a web of jargon, so to speak, meant to ensnare non-specialists and ordinary litigants.
There is a movement for using plain legal language, which does not believe that we have inherited the word of the law in the best possible form. The movement advocates legal language that reflects the needs of the reader over the narrow interests of the drafter. It seeks to ensure that legal language is not an instrument aimed solely at internal communication within the legal fraternity. Careful explanation, illustrations, easy-to-understand examples and aesthetically pleasing organisation are all part of the movement’s agenda to make law clearer. Worldwide, there has been an increasing demand for clearer legal language which is simpler to read and comprehend.
In Australia, a report called ‘Clearer Commonwealth Law’ giving recommendations about how to make “laws, particularly Commonwealth laws, easier to understand” was published in 1993. Many of the 46 recommendations given in the report were adopted within two years. Australia’s ‘Social Security Act, 1991’ was drafted in plain language and contains a ‘Reader’s Guide’, notes, ‘method statements’ and examples to help readers find, read and use information.
The South African experience with plain language is linked to its efforts to foster democratic values. The primary motivation behind drafting the South African constitution in clear language (in consultation with plain language experts from around the world) was to ensure access to its “soul”. The need for clear legal language in South Africa was felt and deemed necessary exactly because of the high rate of illiteracy. In the words of plain language expert Michael Asprey:
“The South African government decided to reflect the transformation to a democratic state in the language of its legislation… and improve the people’s access to justice, encourage participation in the new democratic system, and to demystify government.”
While the endeavour of clarifying the language of the law cannot by any means be a replacement for the substantive changes to be made in the law, it is still an urgent and important task. By making legal language easier to comprehend, the substance of the law becomes clearer, easier to communicate, easier to translate across languages and more open to debate, deliberation and potential reform.
It is dangerous not to interrogate why legal codes that apply to everyone – and that everyone is expected to understand – are so obscure. Maybe we should take a harder look at the in-built mechanisms that the legal system uses to push away people who have intuitive questions about it. Conversely, we lawyers might benefit from sparing a thought to how silly our smugness about how well we can read bad writing can sometimes seem.
Peter John is a researcher at the National Law University in New Delhi