Legal Language & Legal Writing: Dr.shikha Dimri Upes Sol

LEGAL LANGUAGE & LEGAL WRITING

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Dr.Shikha Dimri UPES SOL

• Professor of Contract Law class asked one of his student,’ if you were to give someone an orange , how would you go about it? • Student replied, ‘here’s an orange’. • The professor was outraged, no no no!!! think like a lawyer! • The student then replied, okay I’d tell him , • ‘ I hereby give and convey to you all and singular, my estate and interests, rights, claim,title and advantages of and in said orange, together with its rind ,juice, pulp and seeds, and all rights and advantages with full power to bite, cut, freeze, juice and otherwise eat or consume the same ,or give the same away with and without the pulp ,juice, rind and seeds, anything herein before or hereafter or in any deed, or deeds, instruments of whatever nature or kind whatsoever to the contrary in anywise notwithstanding……..’

LEGAL LANGUAGE : MEANING, IMPORTANCE,SCOPE AND PROBLEMS

MEANING OF LANGUAGE • Language is conveyance or medium in which thoughts and ideas are transmitted from one to another • Language is the vehicle of thoughts

• Term Language has its origin from the Latin word “lingua” which means tongue. • As defined in Webster, the term means a system of communication between humans through written or vocal symbols.

• “Language is perhaps the greatest of all human inventions, as it is not merely a chief means of communication, it is chief medium of thought”.-Glanville Williams

COMMUNICATION

Purpose of languagePERSUASION

• Evolution of Language • Devine Origin • • • •

According to Plato- “Human language is a result of divine gift”. Panini did tapasya to please Mahadev Shambhu He sought blessing of easy communication through language Mahadev performed tandav and sound of 14 letter sutra‘Maheshwar Sutra’ came through his drum. • This is the basis of sanskrit grammer and language which came through Panini’s book ‘Ashtadhyayi’

• Man Made • Binary

Scope of Legal Language

• Legal communication: • Communication from law makers to judges and advocates ie., constitution and its preamble • Communication from judges to advocates and vice versa-ie., judgment, briefs, conversation in court room etc., • Communication among judges ,advocates and the legal experts. • Communication from the jury to judges, from legal adviser to client, and from parties to the judges. • Communication among ordinary citizens ie., contracts, wills ,bye-laws etc.,

MEANING OF LEGAL LANGUAGE • All professions share traditions reflected in their specialist modes of communication

• Law has its own technical language • Main function of professional language is to felicitate communication among the insiders

Solicitors: A Language of their own • • • • • • • • • •

Cold: An innocent client Barro : Barrister N earner : A Wealthy client Fight: a contested hearing Punter/customer : A civil plaintiff Solly : Solicitors Tropical/ very hot: refers to client who is guilty Etting a quote: ascertaining from a judge what penalty he may consider Wearing the helmet: refers to solicitor or barrister prosecuting for the crown Shopper : thief

Peculiarities of Legal Language •

Latin / French words

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Maxim

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Common words with a specialized meaning

• Judicial Abbreviations

PROBLEMS OF LEGAL LANGUAGE •

Defects in legal language due to uncertainty and ambiguity. • According to Glanville Williams- “Language shows a most remarkable maldistribution of words, a great unevenness of density; for some ideas are expressible in a dozen different words and others have to be lumped together under one.”

• Due to change in the meaning of words

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Due to emotive elements in words • “These rules involving emotional attitude are often uncertain to apply. This is because the emotional reaction of the lawyer who advises on their application is not necessarily the same as that of a judge or jury who finally determines the matter and because of emotions of the judge or jury are not always predictable” –G William

• Due to penumbral or fringe meaning of certain words. • Some words are not equivocal as to have two or more meaning but they are still vague in their meaning.

• Due to rhetoric language

• Problems due to Verbosity • Sometimes two three words are used from different angle to communicate a single idea. • • • • •

Verbose expression Give consideration to Give goods to Make provision for Make application for

exact expression consider deliver provide for provide for

• Brayan A Garner comments: but lawyers must atleast attempt to distinguish between those occasions when it is necessary and those when it is not.

• Due to humpty dumpty use of words • Lawyers may play humpty dumpty with the words. They can give meaning to a word quite from its common sense.

• Use of ‘shall’ and ‘may’ • Eg., Art 21. No person shall be deprived of his life or personal liberty except according to procedure established by law. • Art. 40. The State shall take steps to organise village • panchayats and endow them with such powers and • authority as may be necessary to enable them to function as units of self-government.

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56. (1) The President shall hold office for a term of five years from the date on which he enters upon his office: Provided that—

• (a) the President may, by writing under his hand • addressed to the Vice-President, resign his office;

Hints for effective writing • • • • •

you should know who are likely readers the second thing is, why you are writing? Write complete sentences Avoid over long and complex sentences Your point of view about the subject and thoughts should be clarity of thought and precision of language are the bulwark of effective writing • use frequently used words and phrases instead of infrequently used ones

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Avoid repetition and difficult vocabulary cut down redundant words and phrases Know exactly what you want to say Avoid less common words and phrases Use correct grammar and appropriate punctuation • Spelling should be correct and the contents should flow in a logical order. • structure your paragraphs with topic sentences and linking devices.

LANGUAGE AND THE CONSTITUTION • Provisions meant for protection of the language: • Article29 (I) : “Any section of citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.”

• DAV College v State of Punjab,AIR1971 SC 1731, Supreme Court pointed out that the only condition for protection of Article 29(1) is that such class should have distinct language, script or culture.

• In Re Kerala Education Bill,AIR1958 SC956, it was pointed out that with a view to effectively conserve one’s own language minorities have right to establish educational institution.

• In Jagdeo Singh Sindhanti v Pratap Singh Daulta,SC observed: • “Right to conserve the language of the citizens includes the right to agitate for the protection of the language. Political agitation for the conservation of the language of a section of the citizens cannot be regarded as corrupt practices within the meaning of section 123(3) of the Representation of the People Act,1951……Unlike Article19(1), Article 29(1) is not subject to any restrictions.”

• Prohibition of discrimination on the ground of language • Article 29(2)-No citizen shall be denied admission into any educational institution maintained by the state or receiving aid out of State funds on grounds only of religion ,race caste, language or any of them.

• In Hindi Samiti v Union of India, it was observed that not to hold an admission test in a particular language would not constitute denial of admission on the ground only of language. • In Jagatteshwar Singh Banga v State of Orissa, Orrisa HC ruled that denial of admission in a medical college on the ground that pupil did not have knowledge of speaking ,reading and writing Oriya amounted to violation of Article 29(2)

• In State of Bombay v Bombay Education Society, Govt issued circular directing that in English medium schools admission can be given only to those students whose mother tongue was English. SC held it ultra virus as denying admission only on the ground of language.

• Article 30(I) “All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.”

• State of Bombay v Bombay Education Society,-SC observed that minorities have right to establish educational institutions for the instruction of their children. It includes instruction through their own language.

Language used in Parliament • Article 120 deals with the language to be used in Parliament • (1) Notwithstanding anything in Part XVII, but subject to the Article 348, business in Parliament shall be transacted in Hindi or in English: Provided that the Chairman of the Council of States or Speaker of the House of the People, or Person acting as such, as the Case may be, may permit any member who cannot adequately express himself in Hindi or in English to address the House in his mother tongue • (2) Unless Parliament by Law otherwise provides, this article shall, after the expiration of a period of fifteen years from the commencement of this Constitution, have effect as if the words or in English were omitted therefrom

Language to be used in the State Legislature • 210. (1) Notwithstanding anything in Part XVII, but subject to the provisions of article 348, business in the Legislature of a State shall be transacted in the official language or languages of the State or in Hindi or in English: Provided that the Speaker of the Legislative Assembly or Chairman of the Legislative Council, or person acting as such, as the case may be, may permit any member who cannot adequately express himself in any of the languages aforesaid to address the House in his mother tongue

• (2) Unless the Legislature of the State by law otherwise provides, this article shall, after the expiration of a period of fifteen years from the commencement of this Constitution, have effect as if the words or in English were omitted here from: Provided that in relation to the Legislatures of the States of Himachal Pradesh, Manipur, Meghalaya and Tripura this clause shall have effect as if for the words fifteen years occurring therein, the words twenty five years were substituted: Provided further that in relation to the Legislature of the States of Arunachal Pradesh, Goa and Mizoram, this clause shall have effect as if for the words fifteen years occurring therein, the words forty years were substituted

• Article 351. Directive for development of the Hindi language.— • It shall be the duty of the Union to promote and spread the Hindi language, to develop it so that it may serve as a medium of expression for all the elements of the composite culture of India and to secure its enrichment by assimilating without interfering with its genius, the forms, style and expressions used in Hindustani and in the other languages of India specified in the Eighth Schedule, and by drawing, wherever necessary or desirable, for its vocabulary, primarily on Sanskrit and secondarily on other languages.

LANGUAGE OF SUPREME COURT,HIGH COURT • 348. Language to be used in the Supreme Court and in the High Courts and for Acts, Bills, etc.— • (1) Notwithstanding anything in the foregoing provisions of this Part, until Parliament by law otherwise provides— • (a) all proceedings in the Supreme Court and in every High Court, • (b) the authoritative texts— • (i) of all Bills to be introduced or amendments thereto to be moved in either House of Parliament or in the House or either House of the Legislature of a State,

• (ii) of all Acts passed by Parliament or the Legislature of a State and of all Ordinances promulgated by the President or the Governor of a State, and • (iii) of all orders, rules, regulations and bye-laws issued under this Constitution or under any law made by Parliament or the Legislature of a State, shall be in the English language.

• (2) Notwithstanding anything in sub-clause (a) of clause (1), the Governor of a State may, with the previous consent of the President, authorise the use of the Hindi language, or any other language used for any official purposes of the State, in proceedings in the High Court having its principal seat in that State: • Provided that nothing in this clause shall apply to any judgment, decree or order passed or made by such High Court.

• (3) Notwithstanding anything in sub-clause (b) of clause (1), where the Legislature of a State has prescribed any language other than the English language for use in Bills introduced in, or Acts passed by, the Legislature of the State or in Ordinances promulgated by the Governor of the State or in any order, rule, regulation or bye-law referred to in paragraph (iii) of that sub-clause, a translation of the same in the English language published under the authority of the Governor of the State in the Official Gazette of that State shall be deemed to be the authoritative text thereof in the English language under this article.

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Article 343 gives Hindi the status of official language • Official language of the Union shall be Hindi in Devanagri script.

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(1) The official language of the Union shall be Hindi in Devanagari script. The form of numerals to be used for the official purposes of the Union shall be the international form of Indian numerals. (2) Notwithstanding anything in clause (1), for a period of fifteen years from the commencement of this Constitution, the English language shall continue to be used for all the official purposes of the Union for which it was being used immediately before such commencement: Provided that the President may, during the said period, by order authorise the use of the Hindi language in addition to the English language and of the Devanagari form of numerals in addition to the international form of Indian numerals for any of the official purposes of the Union. (3) Notwithstanding anything in this article, Parliament may by law provide for the use, after the said period of fifteen years, of— (a) the English language, or (b) the Devanagari form of numerals, for such purposes as may be specified in the law.

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• According to H.M Seervai –Though Hindi was selected as the official language , it could not be described as the national language ,for , it was not the language generally spoken by the largest single group of people ,that group did not constitute the majority of the people in India. Thus national language may be different from official language • Language involves cultural aspects; so to have an unchallenged, all pervading national language, the country should have a single, common culture. This is not the case for India; so India has to regard as its national language, the language which is spoken by the highest number of Indians ie. Hindi.