Why we must move beyond simplistic approaches to plain drafting

On the occasion of the Supreme Court’s 75th anniversary last month, Justice Sanjiv Khanna emphasised the need to make legal systems citizen-friendly and litigant-driven during his address. The rising cost of litigation was brought to the fore as J. Khanna appealed to draft simple, clear, brief judgements and avoid complex articulation. Notably, the need to draft laws in plain language and rid legal documents of legalese has gained momentum over the years. Earlier last year, Prime Minister Narendra Modi urged drafting laws in simple language to enhance accessibility for the country’s common citizenry at the International Lawyers Conference 2023. While underscoring the need for simplifying laws to make them more accessible, he also encouraged the use of regional languages in courts.

Despite the pervasive problem of inaccessibility of laws and legal documents for laypersons, existing approaches to plain language drafting remain inadequate. There is a need for a more nuanced understanding to counter archaic drafting practices and enable access to justice in the truest sense. Vidhi Centre for Legal Policy’s (“Vidhi”) initiative to draft Simple, Accessible, Rational and Actionable Laws (“SARAL”) is a step in this direction. While the words we use and how we use them lie at the bedrock of the Plain Language Movement (“PLM”), the SARAL initiative goes one step further in committing to a more egalitarian form of drafting by accounting for principles of actionability, rationality, and accessibility before, during, and after the drafting process.

SARAL as a building block to PLM

The PLM gained impetus internationally in the 1970s when countries such as the United Kingdom and the United States of America embraced the drafting of laws and legal instruments in plain English to provide consumers clarity and transparency. Over the years, the movement has focused on the economic benefits of plain language, i.e., reduced ambiguity and concomitant reduction in legal costs. The PLM has gained ground in different parts of the world, with various governments taking positive steps to simplify existing laws and lay down objective standards for drafting in plain language.

SARAL has been envisioned as a building block to the existing PLM movement since it goes beyond substituting legal jargon with words used in common parlance. SARAL seeks to re-imagine legal drafting from a holistic perspective by engaging not just with the form but also the substance of laws. This is because laws, when written simply, must also be coherent, implementable and effective. Further, given the inherently complex nature of legal drafting, guided subjectivity based on overarching principles may help a drafter achieve better outcomes as opposed to objectively defined actionable pointers.

The Digital Personal Data Protection Act of 2023, recently passed by the Parliament, showcased a move towards the usage of plain English and simpler legislative drafting. While this attempt was a laudable first step, the Act’s provisions were criticised for being imprecise and vague.

In addition to using plain language, a coherent, logical structure must be provided to the text. In line with the principles of rationality, provisions and chapters should be arranged in a logical order to reflect the intent, objectives and legislative policy that is sought to be communicated. Strategic ambiguity, which is often employed to avoid articulation of certain standards, criteria or policy, should be avoided and terms such as ‘unless, ‘until’, and ‘where’ must be reduced to their logical denominators in the form of words such as ‘and’, ‘or’, ‘if’, ‘then’ and ‘if and only if’. A law must also serve as an effective guide for executive action. Hence, where it empowers an executive authority to exercise discretionary powers, the contours of such power, along with the illustrative list of factors relevant to the exercise of such discretionary powers, should be laid down.

Further, the roles and responsibilities of all stakeholders likely to be affected by the enactment of the legislation should be mapped prior to drafting and spelt out during the drafting process. Positive sentences should be used to ensure that the tone of directions remains. A law should also clearly identify or appropriately set up an authority or agency responsible for its enforcement. The functions and powers between different levels of authorities should be clearly delineated to avoid overlap and confusion. In all cases, adequate safeguards against arbitrary use of power, fair hearings and robust appeal procedures should be laid down.

Most importantly, a careful check on where powers may be delegated should be maintained, given that standards for monitoring vary vastly based on the nature of the power delegated. A precise mechanism for selecting the delegated authority should be in the legislation. A thorough check must be undertaken before the delegation of any powers to ensure no ouster of jurisdiction of the legislative authority.

Lastly, suitable sanctions and penalties should be laid down for contravention for effective enforcement of any legislation, and the quantum of any such penalty or duration of imprisonment should be backed by real-time industry knowledge and grounded in principles of proportionality. Civil or administrative penalties must be graded based on the severity of the offence and should contain in-built principles for adjudication.

Building an ecosystem

The SARAL Manual published by Vidhi in 2023 lays down overarching principles to draft a simple, accessible, rational and actionable law. These principles may be applied to a wide range of legal instruments, such as legislation, rules, regulations, notifications and circulars issued by the Government; judgments pronounced by courts; contracts entered into by the private sector; and other private instruments. Given that current methods of legal drafting have existed for centuries, there is a need for coordinated action between lawyers, drafters, students, and academic institutions to revisit old practices and systematically reform approaches to legal drafting.

No such initiative can be brought to fruition without active engagement with lawmakers in the country, i.e., the Government. While the introduction of the Drafting in Plain Language Bill in Lok Sabha in 2018 indicated the Government’s intention to promote plain language drafting, there is a need to stimulate deeper conversation on matters of both form and substance based on SARAL principles. The merit of employing these principles in drafting may be evidenced by revising existing legislation, rules, and regulations whilst retaining precision to make such instruments accessible to the country’s populace. Complex and dated laws may be broken down through explainers and FAQs in digestible units for citizens. A drafting manual, required to be followed by all Central Government Ministries and Departments and State Government Legislative Departments, may be formulated as a reference for future drafting practices.

Since law schools play a pivotal role in shaping legal drafting approaches, a component of plain language drafting may be included in the curriculum. This would require an overhaul in the existing academic curriculum, which encourages students to adopt a formal and academic writing style, often awarding marks for the usage of Latin maxims and other legalese. Students internalise existing norms of legal drafting, a habit that is sustained as they enter the legal profession. Creating awareness about the need for plain language drafting at the law school level may help reform drafting practices systemically.

Envisaged Benefits

Common criticisms against plain language drafting rest on the premise that legal drafting is inherently complex, and hence, the use of legal jargon may be necessitated to convey precisely the intended objective, scope, and purpose of provisions in laws and legal instruments. Engagement with plain language and SARAL principles indicates that plain language has the potential to be equally, if not more, precise than traditional legal language. This can be seen in the re-drafting of the Right of Children to Free and Compulsory Education (RTE) Act, 2009, undertaken by Vidhi.

The imperative of writing laws in a way ordinary citizens can understand also has a deeper democratic significance. Hence, the SARAL initiative aims to democratise the institution of law. This can only be achieved if citizens for whom these laws are made can fully understand the rights and duties that emanate from such laws without mediated intervention from a professional class of lawyers.

In this sense, plain drafting increases the trust between citizens and the Government, including law enforcement authorities, thereby furthering the spirit of democracy in society. Consistent efforts in this direction could revolutionise how documents, forms, regulations, contracts, and even statutes are drafted in India.

The authors are researchers with the Legal Design and Regulation team at Vidhi Centre for Legal Policy. Views are personal.