13 Jun 2017 7:24 AM GMT
We live in a time where most fields of human enquiry are mind-bogglingly complex. Much of modern science is beyond the ken of an ordinary human being. It exists in the minds of a few brilliant scientists across the world, while the rest of us unquestioningly accept its conclusions. Increasingly, law as a discipline is moving in the same direction. Statutes keep getting longer and longer...
We live in a time where most fields of human enquiry are mind-bogglingly complex. Much of modern science is beyond the ken of an ordinary human being. It exists in the minds of a few brilliant scientists across the world, while the rest of us unquestioningly accept its conclusions. Increasingly, law as a discipline is moving in the same direction. Statutes keep getting longer and longer while judgments have become entirely unreadable. For instance, once the 2016 amendments are cleared, Section 184 of the Motor Vehicles Act, 1988 will read as follows:
184. Driving dangerously.—Whoever drives a motor vehicle at a speed or in a manner which is dangerous to the public, or which causes a sense of alarm or distress to the occupants of the vehicle, other road users, and persons near roads, having regard to all the circumstances of the case including the nature, condition and use of the place where the vehicle is driven and the amount of traffic which actually is at the time or which might reasonably be expected to be in the place, shall be punishable for the first offence with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees, and for any second or subsequent offence if committed within three years of the commission of a previous similar offence with imprisonment for a term which may extend to two years, or with fine which may extend to two thousand rupees, or with both.
Needless to say, this is a provision that is of vital interest to the average citizen. Yet, it is clear that no attempt has been made to express the idea contained in this section in its simplest form. Perhaps, that is not the brief of a drafter. Or, perhaps, much like modern science, law is a discipline where complexity cannot be avoided. Is it that there is no reason to put in an effort to simplify complex ideas?
The need to foster belief in the law
It is easy to see where the law differs from other disciplines. The complexities of other disciplines are largely directed towards participants within those fields. For instance, I commit no grave error in claiming that an electron is a particle and not a wave. Sure, I might be wrong as per modern physics, but it is unlikely to result in censure or punishment unless I make the claim while amongst physicists or in a physics examination.
This is not the case with the law described above. Every citizen is expected to know, understand and follow the law. Second, anyone who violates the law will suffer the punishment prescribed. Third, an even more onerous duty is cast on the citizen. She is expected to judge the government of the day on its policies, including the above law howsoever insignificant.
An argument could be made that every citizen need not be a full participant in the law in the above sense. The jurist Hart, in his descriptive theory of law, noted that every citizen need not have an ‘internal attitude’ to the law. A legal system, he thought, could survive even if a number of its citizens merely complied with the law without seeking to understand it fully.
That, however, is unlikely. We merely have to look around to make the case. Perhaps, the traffic on our roads is the way it is because we barely believe in our traffic laws. The chance of a population in a democracy not believing in the law and yet complying with it is remote.
Towards simpler expression
Legislators, drafters and judges must bear in mind that more and more non-lawyers read laws and judgments today. Every new important legislation is the subject matter of debate and every Supreme Court judgment on a major issue is an event in itself. The access to a growing audience must be thought of as an opportunity to engage with them directly and to foster belief in the law. To communicate with such an audience, legislators, judges and lawyers must stop speaking ‘legalese’ of the form Section 184 exemplifies. Why not abandon lengthy archaic formulations’? Why use ‘provisos’ and ‘non-obstante’ clauses when the point can be made better without these? Why must every important judgment of the Supreme Court be the length of a novel?
Laws and judgments are not merely words strung together. Hilary Mantel puts it well when she has Cromwell tell us this: “When you are writing laws you are testing words to find their utmost power. Like spells, they have to make things happen in the real world, and like spells, they only work if people believe in them.”
Shankar Narayanan is a Senior Resident Fellow at the Vidhi Centre for Legal Policy.