Monday, January 6, 2014

Plain and Not-So Plain Language in the Indian Courts

An interesting article in the NYT International Edition last month noted an ebb and flow in the use of plain and not-so plain language in decisions of Indian Courts.  Author Dilip D'Souza notes that "enigmatic language" seems to be common in recent decisions, a contrast to the plain language used in the 1950s.

Compare:

"[They] were bludgeoned and thereafter jugulated to death. [T]here is nothing to suggest that intruder(s) perpetrated this fiendish and flagitious crime. Dr. Rajesh Talwar delated the matter with the Police Station.”

with

"'Public safety' ordinarily means security of the public or their freedom from danger. … The meaning of the expression must, however, vary according to the context. … [It] may well mean securing the public against rash driving on a public way and the like, and not necessarily the security of the State."

The former passage's use of words seems designed to obscure the meaning of the passage or, at best, to emphasize the superior vocabulary of the writer at the expense of clarity. The NYT article notes that since the 1950s Indian jurisprudence has increased in excessive, obscure language that is hard to follow and unclear, despite the technically proper use of words. D. Souza suspects these opinions are written with the "intensive use of thesaurii."

Still, some recent decisions provide a ray of hope, evidence that at least some recent decisions are being written in direct, readable prose. Are these mere exceptions to the widespread practice of obscure overwriting or are they evidence of a growing, new plain language approach? Are some of the twenty-one Indian High Courts more or less prone to the thesaurus-diving style? Is the Indian Supreme Court? What is the trend regarding language use in each of these courts? Is this manner of florid writing common in briefs to the court as well as judicial opinions?

As much as I'd like to know the answer, the sheer volume of Indian cases (a 2010 study found over 31 million pending cases and a clearance rate of about 100,000 cases per year) seems to make any systematic study extremely challenging, even if one had access. Still, the sharp contrast between the plain and not-so plain language cries out for investigation. Perhaps in the meantime, readers familiar with Indian courts might provide their anecdotal experiences?

http://lawprofessors.typepad.com/appellate_advocacy/2014/01/plain-and-not-so-plain-language-in-the-indian-courts.html

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Comments

David, what a great topic. Thank you for sharing. I had the wonderful opportunity to teach legal writing in India for several weeks this summer. One of the most enlightening pieces of advice I received from a colleague before I left was to respect South Asian English as a separate dialect, with its own norms and its own untold thousands of native English speakers. To native English speaking ears in that part of the world, a more colonial sound conveys authority and even beauty. I was advised to teach plain English as an international standard, but not to impose it as a domestic standard.

Posted by: Tonya Kowalski | Jan 14, 2014 1:02:56 PM

I should also add: arguably a noticeable shift toward an idiosyncratic English style is part of the post-war movement to "Indianize" Indian law.

Posted by: Tonya Kowalski | Jan 14, 2014 1:07:02 PM

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