By IANS
New Delhi : Ever wondered why legalese happens to be so obscure that Charles Dickens was prompted to decry law as an ass in his celebrated work “Oliver Twist”?
“The law often turns obscure also because of the people who read it in bad faith to misunderstand it,” says Indian Law Secretary T.K. Vishvanathan, quoting an English judge and legal luminary Justice Stephen.
Vishvanathan made this tongue-in-cheek remark on reasons for the obscurity of law right in the presence of Chief Justice of India K.G. Balakrishnan, Law Minister H.R. Bharadwaj and a host of legal luminaries Friday, evoking a hearty laughter from the audience.
The law secretary, who was earlier secretary of the Legislative Department – the law ministry’s wing responsible for drafting bills on legislative proposals from other ministries, made the remark in his address on the occasion of the release of the second edition of book “Legislative Drafting: Shaping the Law for New Millennium.” The book was revised and updated by him.
Dwelling upon the reasons of the much-maligned obscurity of the law, Vishvanathan said: “Its audience varies from the learned and specialists in the law to the lay; from those who try in good faith to understand legislation to those who try in bad faith to misunderstand it.”
Imparting a sneak peep into the complexities of the law-making process and daunting task of bill drafters in the legislative department, which ends up making the end product as complex, Vishvanathan said “the legislative draftsmen are precariously destined to satisfy too many bosses in drafting the law.
“These bosses include the sponsoring ministry, which moots the legislative proposal; the legislators, who pass the bill, the judges who sit in judgement over it, the officials who enforce the provisions of the law and the end users – the common citizens, directly affected by the legislations,” the law secretary said.
Admitting “the presumption of the law-making principles that law should be clearly understood by the people directly affected by it”, the witty law secretary went on to apportion part of the blame on legislators for the incomprehensibility of the law and legalese.
“The bill drafted by legal draftsmen often gets modified by legislators upon whom the draftsman has no control,” the secretary said amidst laughter, referring to how the original draft of the bill gets changed in parliament “on the spur of the moment and in the heat of the debate”.
Considered an ace legal draftsman and often praised by Law Minister Bhardwaj for his rare ability to churn out a voluminous bill overnight, Vishvanathan did not mind blaming his own co-professionals as well for making law Greek to common men.
“The long-winding sentences, which characterise the statute book, is yet another reason for the complexity of the legislative language,” Vishvanathan said. He added “this has a historical lineage which has spilled over from the habits of earlier draftsmen, who happened to be conveyancers (people who drafted various property documents in England) in medieval times.
“Long sentences intimidate the readers, while also making the law lose its spirit,” Vishvanathan said adding that “present legal draftsmen too like their co-professional forefathers love to test the agility of their readers by making them leap wide gaps between the subject and the verb, and the verb and the object in the sentences written by them.”
Acutely conscious of the obscurity of the legislative texts, Vishvanathan, during his tenure as Legislative Department secretary, had initiated a proposal and guide-map on how to draft laws in simple and succinct language. But after he was promoted as law secretary, his proposal is gathering dust in the shelves of the Legislative Department.