Law and Language
One can`t deny that the interplay between our daily lives and law is pivotal to our existence. Even when we are breathing, Article 21 of our constitution protects us. When we buy some product from a shop, taxes imposed under various laws play a role in determining the cost of that product.
These are just few of the various examples that we encounter in our daily life which exhibit the role of law in our everyday lives. But to know what the law is and to understand it, so that we can act accordingly, one needs to have some command over the language. Even in common law countries where we witness unwritten laws, precedents have cardinal place.
And to use those precedents appropriately we need to understand the judgments. Also, judges need to use the right words at the right time to convey the real purpose of the precedent. Law and language are inter-related for even language operates on certain laws. We have various rules and laws of grammar, which if broken, would take away the essence of the language. I always had a few questions regarding this topic lingering in my mind. Why is legal language so complicated? How do lawyers twist it according to their advantage? How easy judges find it to interpret the legal jargon? Is there even a need for legalese?
How has the language, the law is written in, affected the awareness among people? There are more questions that I await an answer for and this project has given me a great opportunity to look for those answers THE INTERVIEW For the same purpose I interviewed Sri V. Srinivasa Sivaram, Administrative Officer, Andhra Pradesh State Legal Services Authority. “The National Legal Services Authority (NALSA) has been constituted under the Legal Services Authorities Act, 1987 to provide free Legal Services to the weaker sections of the society and to organize Lok Adalats for amicable settlement of disputes.
In every State, State Legal Services Authority has been constituted to give effect to the policies and directions of the NALSA and to give free legal services to the people and conduct Lok Adalats in the State.. ” With his experience and connect to the local people, I felt he would be able to answers my questions. I thank him for giving his valuable time for me. Here is an excerpt of the interview Q. Sir, you are associated with Andhra Pradesh Legal Services Authority, and many financially distressed people who can’t afford a lawyer approach you for help.
What level of legal awareness do you find amongst these people about their rights and duties especially when the laws and statutes are written in English? A. Since I`m working with the legal service authority for past some time, one thing that I find is that people don’t come to us because they have some right or a duty. They come to us because they have a problem. It may be related to law or may not be related to law. 90% of the times, we have to find out what the law is with respect to their problem. The people approaching us are not aware if a law can help them and if so, which law.
They are aware that if they have a problem and they are approaching legal service authority, then we will help them. Many a times I have spoken to people and asked them “How did you come to know of legal service? ” The most common reply is sir, we have been told or we heard it on TV or Radio. After they approach us, we have to find the remedy for them and most importantly look if that remedy is within the four corners of law. They are not aware of the law in that respect. They just have a problem in hand and they come to us, looking for remedy, and asking whether law can help them or not.
Q. For many disputes, the local people first approach the district court and then may appeal in higher courts. Do the district courts work in the local language or in English? What is your opinion regarding this. A. With respect to this question, I would like to tell you that both local languages and English are used. If a person is illiterate or he doesn’t understand English well, especially when you have to conduct a trial, when you ask during chief examination or during cross examination, the local language is the best thing Q. Do the courts give the judgment i. e. s the written judgment in regional language or is the usage of regional language restricted for oral purposes only? A. For the time being, it is totally in English. But the judges are not stopped from using the regional language. For example, one of friends has given a couple of judgments in Telugu also. But doing so is very difficult. The hindrances that they encounter are numerous. When they have to rewrite a case law or quote a case from Supreme Court it becomes virtually very difficult to quote it in Telugu.. We also have latin maxims that would be adding to this difficulty.
You are right. We cannot quote them in regional language. We may not pass on the meaning properly. If you quote Evidence Act in Hindi or Telugu, I tell you, it will be a nightmare! Although we are very proficient in Hindi and Telugu, on trying to do so, we couldn’t succeed. Try converting a judgment by Hon`ble Judge Krishna Iyer into your local language or Telugu, it will be a disaster! Even people who are conversant in English find it difficult to understand his judgment. The language is highly complex, full with rhetoric.
Many Supreme Court judgments are in such a way that a common man can`t understand it. This also applies to people who are well familiar with English. Until and unless one doesn’t have the knowledge of the legal jargon used, they can`t comprehend it. Q. The laws are basically for the people. But with the complicated language they are written in, a person finds it very difficult to read through them. Do you think there is a need to simplify legal language? A. It is high time that the legal language is simplified. One thing that we see is, for a simple word example may or shall, battles are fought in court.
The Supreme Court may end up saying ‘may’ is not ‘may’, it is ‘shall’ and ‘shall’ is ‘may’! Because the interpretation of such basic words takes place in different ways, a common man can`t understand it. Yes Sir, I do remember a case ‘State Of Madhya Pradesh vs Azad Bharat Finance Co’. Here under an Act, although the District court interpreted the use of word ‘shall’ as obligatory, the Supreme Court interpreted it as “ The word ‘shall’ is not always mandatory; it depends upon the context in which the word occurs and the other circumstances. ” Yes. We have many other examples.
Few years back when a question arose if a written statement has to be filed within 90 days of the amended CPC, it was said that NO although the word used is shall. If this is the fate of the people who know law, then imagine the plight of the common man. Q. I agree with you sir. But if the legal language is simplified, doesn’t it leaves some loopholes that maybe misused by many? A. Look, even now it is happening. You write one line and the lawyers are bound to pick up loop holes in that one line also. This is so, because we have been taught to do that!
Every lawyer tries to use the words according to his own convenience and the benefit of his client. Q. What approach do you adopt while interpretation of any law. Is it a positivist approach strictly based on the language and the words used or you try to look into the history and spirit of the law? A. I prefer to go by the spirit of the law. We don’t have access to the constitutional debates. In lower courts, when we have to go about finding what is the meaning and the spirit of the law, unless you see the original framework of the law, you don’t know why it was written.
I do remember the case of ‘Baljeet Singh vs Election Commission Of India And .. ’ Here the petitioner argued that a member of parliament takes an oath to ‘make and subscribe’ to the constitution of India. Hence the interpretation is that each and every legislator must be literate to understand the India`s constitution. The Supreme Court referred back to the constitutional assembly debate and concluded that literacy was never meant to be an extra qualification to be a member of parliament. The purpose behind such an oath was to promote national unity and not to make literacy a pre-requisite condition.
Yes. Sometimes if you don’t know the intention behind a law, you can`t come to any particular conclusion about its meaning. If you have access, well and good but many lower courts don’t have access to constitutional debates. An Act or statute may give you two or three lines about its purpose, but if you want to go further you don’t have access to that thing. So, if there is a conflict you will interpret it in a manner as you feel proper. But certain situations demand interpretation using the strict language rule. This has been played by the higher courts in many ways!
And since we say that Supreme Court judgment is the law of the land, we are bound to end up in confusion. Let me put forth one example. A question arose whether a company can be prosecuted or not for criminal actions. The punishment prescribed includes both fine and imprisonment. One interpretation was that since a company is not a real person and you can`t throw it in jail, hence only a fine will be imposed. But the Supreme Court said that since you can`t put the company in jail, you can`t inflict the punishment prescribed in the act, hence the ntire proceeding were quashed. Subsequently, after few months another judgment came, in which another company, I`m not sure but maybe Standard Chartered Bank, relying on the earlier judgment, pleaded for the quashing of the procedures. But this time, it was held that although we can`t put you in jail; you are liable to pay the fine. Another important issue is the way a common man interprets a law is very different. Let me put to you an example I came across. In rural areas, when I spoke to some people, they are aware that there is a law that deals with harassment.
But for them, harassment is any kind of harassment. A woman claimed since her husband drinks and doesn’t contribute much for the family, he is harassing me. Technically, you can`t stop a person from drinking. They hold very different perception of the same law. Some lawyers take them for a ride. When such women approach them, they suggest filling a suit under sec498 which deals with dowry harassment! This obviously leads to exploitation as they mint money in spite of knowing that no remedy lies in law. Q.
Sir, this situation is dangerous. People may develop wrong perceptions that law can`t help them and may lose faith in the system. Doesn’t it demand spreading awareness among people. A. You are right. We do take measures to spread some awareness. For example, we have a regular programme on etv in which a judge tries to answer the queries of the people and explain the remedy to them. I came across a group of LGBT. Although they came from a village, they were well aware about sec 377 and were speaking on how it is unconstitutional.
Then they told me how a sensitization programme was carried out by an NGO in Telugu. So, laws aren’t that difficult to understand, if explained properly Q,CLAT[common law admission test] for admission to the National Law schools is conducted in English. Do you think, the exam should be conducted in other regional languages to increase diversity and access? A. You should answer this question better!. Well the entire situation can be summed up in one or two lines. Whether the legal education should be in local language or English? No doubt, the language may act as a barrier.
But in a country having about 28 states with different languages, if the Supreme Court has to read from Gujurati to Malayalam, then it would be a nightmare for everybody. The statutes and legislations are in English. An exact translation in any other language is not possible. The exact meaning may be lost. We can`t avoid English. Now, we have got used to a procedure where we use both regional language and English. The legislations are in English, debates, judgments all are in English. As I said, we can`t have literal translation of each and every word.
Thus, my point is legal education has to take place in English. But at the same time, I don’t deny that regional language would prove to be beneficial, but practically, you need legal education in English medium. Q. Finally, how do you as a judge, view the connection between law and language? Do you think the efficiency of a judge or advocate would be affected due to lack of knowledge in a particular language? A. I have come across many people who can put forth extremely strong arguments in regional language. But they would have become better lawyers had they been proficient in English.
But you will see, many a times being good in English won`t help you if you don’t have a command over the regional language too. When a client approaches with any problem, you should be able enough to connect with them, so that they can openly discuss the issues at hand with them. You can explain the law to them in their language so that they understand better and discuss the appropriate remedy. Many a times, if you want to cross-examine a witness you need to do that in his local language. If the poor guy is not well versed in English, then he may say something with some different meaning, which obviously you see would land him in trouble.
Now-a-days we have technological tools in the Internet that help us to translate. That day I wanted to read an article on mediation which was in a language, I wasn’t familiar with. This translation tool helped me to translate it in English and the contents too were satisfactory. So in the contemporary times, with internet you can remove a lot of disadvantages. CONCLUSION The interview was a interesting one for it helped me broaden my horizons on the general public conceptions of law. Sri V. Srinivasa Sivaram rightly pointed out to me the problems that plagued the system, which never came to my notice before.
But since this project is about the relation of law and language, I would like to narrow down on that issue. Most of his answers were convincing. English can`t be entirely avoided. With the diversity in languages that we have, what a statute may mean in one language, would mean something else in the other as literal translation is not possible every time. But this doesn’t mean neglecting regional languages. They need to work side-by-side which evidently is witnessed esp. in the working of lower courts. This is so because it is obviously beneficial for public good.
All Laws are made for a reason and purpose. They sometimes seek to repair a defect prevalent in the system. So, the courts should move beyond the interplay of words. Legal jargon or legalese needs to be simplified. I would like to quote Mr. Sivaram on this issue. He aptly illustrates why legalese should be restricted. “One maybe proficient in English, but if they are told to read Physics or Chemistry, then they wont be able to. Law is for the people. It governs and regulates the action and life of the people. Thus, it should be in a way that people can ordinarily understand.