Top
Columns

[Column] 'Plain Is Fine: Law, Legislation, And Language' , By Justice Dama Seshadri Naidu

Justice Dama Seshadri Naidu
26 July 2020 1:49 PM GMT
[Column] Plain Is Fine: Law, Legislation, And Language , By Justice Dama Seshadri Naidu
x
Your free access to Live Law has expired
To read the article, get a premium account.
    Your Subscription Supports Independent Journalism
Subscription starts from
599+GST
(For 6 Months)
Premium account gives you:
  • Unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments.
  • Reading experience of Ad Free Version, Petition Copies, Judgement/Order Copies.
Already a subscriber?

Recently, Section 65B of the Indian Evidence Act was subjected to close judicial scrutiny in Arjun Panditrao Khotkar v.Kailash Kushanrao Gorantyal (decided on 14 July 2020). A three-Judge Bench of the Apex Court, on a reference, has ruled on the provision's legislative scope and purpose. Besides the judgment, I have read a few articles on it in LiveLaw. I do not intend to—nor can I actually—join the issue. But what caught my attention is the language used in that provision; that prompted me to write this article, to underline the importance of plain language even in the legislative domain.

Common law country as we are, Parliament is our principal lawgiver. It thinks in legislation. That legislative thought takes shape through the skin of some language—usually English. No doubt, India is a veritable tower of babel with a tangle of tongues to speak in. But for various reasons—historical, political, and so on—we have chosen English as our principal legislative language. This language prides itself as a global language, but it cannot claim perfection, perfection to communicate a thought as was conceived in mind. Every language is imperfect. It is as imperfect as the speaker. And this imperfection or imprecision gets compounded when the language is not the speaker's mother tongue.

Thronton's Legislative Drafting[1] bemoans that the relationship between language and the environment in which a proposed law is to have an effect is "always of great practical importance to the legislative drafter because of the risk that communication will fail. It is especially so in circumstances where the language of legislation is not the language of a society which the law is to regulate. The law may contain, and indeed may rely on to make it meaningful, concepts or mental images which are unknown to the society concerned and may be virtually impossible to translate adequately into the mother tongue of that society."

Words are frozen thoughts; when we speak, they melt into meaning on our tongue. This melting engages not only our tongue but our entire body. Actually, when we speak we communicate more with our body than with the words we use. But how about the words that remain on paper? With the absence of animating or articulating speaker, we, as the readers, expect the written material to be plain, precise and, possibly, perfect for us to understand. That is, we expect the writing to be simple and straight as if the writer were speaking from the page.

So writing as plain as speaking is worthy of everyone's effort. The legislation is no exception.

With time, everything has moved and changed. Our laws have changed, our practices have changed, our values have changed. Everything has been transformed—for good or for bad. But one thing has braved it all and remained unchanged, resisting the tidal wave of change. That is the legal language, more particularly legislative language.

As Justice Kirby, formerly of the High Court of Australia, has said, "[T]he construction of statutes is now, probably, the single most important aspect of legal and judicial work.[2]" But how comfortable are the courts, including the lawyers and laypersons, in this pursuit? A Division Bench of Kerala High Court in Kannan Devan Hills Plantations Company Pvt., Ltd. v. ACIT[3], in a 'linguistic aside', has commented on the cognitive complexity any reader faces in understanding the provisions of the Income Tax Act. According to it, the Income Tax Act is one enactment that can shatter anyone's linguistic confidence or competence. Each provision—inevitably, though—runs into pages, superordinate clauses, subordinate clauses, and sub-subordinate clauses piling up in syntactic curlicues. With annual addition, the provisions lose coherence and defy comprehension. Neither a lawyer nor a Judge can claim with comfort, if not with confidence, that he could comprehend the provision at least on a rereading; the taxpayer is surely lost in a maze of meandering phrases. It is, therefore, time for the Revenue to host on their website a plain English version of the enactment—only a suggestion, however.

Even the native speakers of the language—notably the USA and the UK—have redrafted, and have been redrafting, the bulk of their legislation in plain language. In the USA, the Federal and the State Governments apart, the Uniform Law Commission, "a non-profit organisation of volunteers promoting uniformity of laws throughout the United States", has involved legal-linguistic experts like Bryan A Garner and Joseph Kimble for this purpose. So notes Kannan Devan Hills Plantations Company.

Strange as it may sound, the United States Congress has brought out legislation—Plain Writing Act of 2010—to "enhance citizen access to Government information and services by establishing that Government documents issued to the public must be written clearly, and for other purposes." True, it is not about the legislation but about the boundless officialese or bureaucratese, a universal blight on a citizen's access to information.

Section 2 of the Plain Writing Act underlines the purpose of that Act: "[T]o improve the effectiveness and accountability of Federal agencies to the public by promoting clear Government communication that the public can understand and use."

Now, let us see Section 65-B of the Evidence Act. It reads:

65-B. Admissibility of electronic records.—(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely—

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether—

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period; or

(c) by different combinations of computers operating in succession over that period; or

(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers,

all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,—

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,

and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section,—

(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;

(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;

(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

Explanation.—For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.

First, it is impossible for anyone to understand in one reading what this section aims to convey. It requires rereading—one too many. Second, the unwieldy provision makes comprehension a causality. In paragraph 111, Arjun Panditrao Khotkar observes: "Section 65B, in its form, is a poor reproduction of Section 5 of the UK Civil Evidence Act, 1968. The language employed in sub-sections (2), (3), (4) and (5) of Section 65B is almost in pari materia (with minor differences) with sub-sections (2) to (5) of Section of the UK Civil Evidence Act, 1968." Referring to another provision, Arjun Panditrao Khotkar also complains that "there are too many negatives in the language employed in Section 69".

Let us not forget the UK Civil Evidence Act was drafted in 1968; the amended Section 65B in the Indian Evidence Act was engrafted in 2000. It imports the 1968 language, though. In fact, UK Civil Evidence Act 1968 has already been repealed.

In common law countries, especially those countries where English is the mother tongue, the legislative bodies have moved away from the archaic legislative language. To illustrate the modern-day legislative practices, we may refer to any piece of recent legislation either in the UK or in the USA.

Let us take one provision from Business and Planning Act 2020 of the UK. Part I of this Act deals with the consumption of food and drink outdoors. It provides for pavement licences. And Section 3 mandates how the applications for the pavement licence should be determined. The provision reads:

2 Applications

(1) An application for a pavement licence made to a local authority must—

(a) be made in writing and in such form as the authority may specify,

(b) be sent to the authority using electronic communications in such manner as the authority may specify, and

(c) be accompanied by such fee not exceeding £100 as the local authority may require.

(2) An application for a pavement licence made to a local authority must—

(a) specify the premises, the part of the relevant highway and the purpose or purposes specified in section 1 (3) to which the application relates,

(b) specify the days of the week on which, and the times of day between which, it is proposed to put furniture on the highway,

(c) describe the type of furniture to which the application relates,

(d) specify the date on which the application is made,

(e) contain or be accompanied by such evidence of public liability insurance in respect of anything to be done by the licence-holder pursuant to the licence as the authority may require, and

(f) contain or be accompanied by such other information or material as the local authority may require.

(3) The local authority to which an application for a pavement licence is made must, in such manner as it considers appropriate—

(a) publish the application and any information or material required by the local authority under subsection (2)(f), and

(b) publicise the fact that representations relating to the application may be made to the authority during the public consultation period (and indicate when that period comes to an end).

(4) In this group of sections, the "public consultation period" means the period of 7 days beginning with the day after that on which the application is made.

(5) A person who applies for a pavement licence must—

(a) on the day the application is made, fix a notice of the application to the premises so that the notice is readily visible to, and can be read easily by, members of the public who are not on the premises, and

(b) secure that the notice remains in place until the end of the public consultation period.

(6) A notice under subsection (5) must—

(a) be in such form as the local authority to which the application is made may require,

(b) state that the application has been made and the date on which it was made,

(c) indicate that representations relating to the application may be made to the local authority during the public consultation period (and indicate when that period comes to an end), and

(d) contain such other information or material as the local authority may require.

(7) For the purposes of this section an application for a pavement licence is made on the day it is sent to the local authority.

(8) A person who applies for a pavement licence is to be taken to have agreed—

(a) to the use of electronic communications for all purposes relating to the application, and to any licence resulting from the application, which are capable of being carried out electronically, and

(b) that the applicant's address for the purposes of such communications is the address incorporated into, or otherwise logically associated with, the person's application.

(9) Where a person applies for a pavement licence, the person may not make another application for a pavement licence in respect of the same premises before the end of the determination period (see section 3).

It is equally a long-winding provision. Agreed. It could have still been better drafted. Agreed again. But see how the short sentences, clear segments, and intra-sectional divisions of the provision improve its comprehension. It contains no "hereinafters", no "thereins", no "theretos" and no "thereofs". Besides, there are no "superordinate clauses, subordinate clauses, and sub-subordinate clauses piling up in syntactic curlicues."

So, let us attempt to put Section 65B in plain English:

65B. Admissibility of electronic records.—

(1) Despite this Act, any information printed on a paper, stored, recorded, or copied in optical or magnetic media, from a computer (the computer output) shall also be treated as a document. But to be treated so, it should satisfy the conditions mentioned in this section. Then, the information as a document becomes admissible in any proceedings. Thus produced, it dispenses with further proof or the production of the original, about which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) regarding a computer output shall be the following:

(a) the output must have been from a computer which has been used regularly to store or process such information as was retrieved and over which the person concerned has lawful control;

(b) [Clause (a) takes care of clause (b), too].

(c) during the period when the retrieved information was fed, the computer must have been operating properly. If the computer was not properly functioning at any other time, that malfunctioning or non-functioning must not have affected the storage and retrieval of the information in question; and

(d) the retrieved information must have been fed into the computer in the ordinary course of its functioning. [Actually, clause (a) substantially covers this aspect also.]

(3) The information feeding or processing as mentioned in clause (a) of sub-section (2) may have happened—

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period; or

(c) by different combinations of computers operating in succession over that period; or

(d) by one or a network of computers treated as a single computer, in any other manner, in whatever order, over that period.

(4) To use the retrieved information as evidence, the person concerned must secure a certificate containing any or all of the following,—

(a) identifying the electronic record containing the statement and describing how it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate to show that the electronic record was produced by a computer;

(c) dealing with the matters to which the conditions mentioned in sub-section (2) relate,

signed by a responsible official having control over the device or the device-related activities (whichever is appropriate). Then, that certificate shall be evidence of any matter stated in it; and for this sub-section, it shall be sufficient for the signing authority to attest to the facts in the certificate to the best of his knowledge and belief.

(5) For this section,—

(a) information shall be taken as supplied to a computer if it has been supplied in any form, directly or indirectly, and with or without human intervention;

(b) Information, on occasions, may have been fed to a computer used for other activities. Yet, if the information has been duly fed, it must be taken as fed to the computer in the course of the information-related activity;

(c) the computer may give the output directly or indirectly (with appropriate equipment) and with or without human intervention.

Explanation.—For this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison, or any other process.

No doubt, this is not the version of modal drafting; it may be a version of it. The more you focus on it, the better it comes out. No doubt.

I reckon it is time a specialised body like the Law Commission paid attention to it. For decades it has been known for its most cerebral Reports on various legal reforms. If it focuses on suggesting to the legislative bodies about the need to simplify our statutes, it goes a long way in every which way. Research has shown, for instance, insurance regulations drafted in plain language have cut down litigation. It applies to legislation, too. With vague, voluble, archaic words, the legislative intent looking in every direction from the books of statutes, we only end up, as Lord Evershed MR has said, citing some judicial utterance or another "in support of almost any proposition relevant to the problems of statutory interpretation.[4]"

It is time we lifted the legal fog from legislation, so the legislative intent, as we call it, is there plainly for all to see. After all, more words do not result in more precision. Let me conclude by invoking Alexander Pope:[5]

"Words are like leaves; and where they most abound

Much fruit of sense beneath is rarely found."

Views are personal only.
(Author is a Judge at Bombay High Court)


[1] Prof. Helen Xanthaki, (Bloomsbury Professional Ltd., 2013 Fifth Edn) 5

[2] As quoted in Andrew Burrow's Thinking About Statutes (The Hamlyn Lectures, Cambridge University Press, 2018) 3

[3] 400 ITR 43

[4] 'The Impact of Statute on the Law of England', Maccabean Lecture in Jurisprudence (1956), as quoted in (n 2) 5

[5] Alexander Pope's An Essay on Criticism, lines 309-10

Next Story
Share it