Of legal eagles and their legalese

Harvinder Khetal

ON Friday, four seniormost judges of the Supreme Court expressed in public their anguish and concern over the manner of functioning of the apex court after failing to have the ear of the Chief Justice in this regard. Since their letter to the CJI delineating their worry and anxiety was meant to be shared with the laypersons, the judges made sure that it was devoid of legalese. Legalese is the specialised language of the legal profession. Usually, it is above the comprehension of the common man. And, it is precisely for this reason that when in trouble, we have to resort to the regal-priced legal eagles (lawyers). The legal eagles do not inveigle their way to their client’s acquittal. (To inveigle is to win over by wiles or acquire by ingenuity or flattery). They are trained in the nitty-gritty of law as well as its terminology.  

In this context, I am reminded of a friend, who bravely opted for pro se. She was going through a case of divorce, but could not afford to hire an advocate. So, she fought her own case. Litigants or parties representing themselves in court without the assistance of an attorney are known as pro se litigants. “Pro se” is Latin for “in one's own behalf.” I could picture the gritty girl confidently presenting her side of the sordid story to the judge. As she later narrated, the experience was anything but like the notion she had of a court hearing. Till then, the perception of the proceedings was primarily based on pictures. The movies court scenes are a highly dramatised version of the reality. 

Then there is some legal jargon that we often come across in newspapers etc and become familiar with. Jargon is the technical terminology or characteristic idiom of a special activity or group, as medical jargon, sports jargon etc. A lot are Latin or French or Anglo-Saxon words that have been passed down from centuries-old legal works. So are some judicial practices. Such as the gavel.

The gavel (ceremonial mallet) is a symbol of the authority and right to act officially in the capacity of a chair or presiding officer. The expression passing the gavel signifies an orderly succession from one chair to another. A gavel is used to call for attention or to punctuate rulings and proclamations. It was first used by the US Vice-President in 1789 to call the very first Senate to order in New York. The phrase gavel-to-gavel describes the entirety of a meeting or session. It is also used to keep the meeting itself calm and orderly.

Interestingly, some practices have phased out or there is opposition to them. While the tradition of barristers and judges wearing powdered wigs as formal courtroom attire continues in many situations in the UK, the practice has died out in the US. A couple of years ago in India, following objections, an order was passed to dispense with the use of honorifics such as "Milord" and "Your Lordship" to the judges, almost a millennium after the archaic and feudal forms were used. It is now OK to address them with the relatively ho-hum but dignified "Your Honour" and that those in lower courts may be addressed as "Sir".

Now, let’s go back to legalase.  Mens rea is one legal phrase that I learnt recently. “Rachna Khaira did not have mens rea, so her conviction is unlikely.” A friend with whom I was discussing the FIR against The Tribune reporter following her expose of the Aadhaar data breach sent me this message. Mens rea is Latin for a guilty mind, or criminal intent in committing the act. And, there was no mala fide intention. Mala fide is (in) bad faith. Contrary to this Latin term from the 16th century is bona fide which means "made in good faith" (as in "a bona fide agreement") or "genuine or real" ("a bona fide miracle"). We also encounter the noun bona fides, used in reference to evidence of a person's good faith, genuineness, qualifications, or achievements.

We routinely come across some more legal jargon in newspapers. The common ones include suo motu (of its own motion). It refers to a court or other official agency taking some action on its own accord. For example, before last Diwali, the Punjab and Haryana High Court took suo motu cognisance of the issue of pollution caused by firecrackers. 

There are so many more examples: Status quo (the existing state of affairs, especially regarding social or political issues); prima facie (on the face of it; presumed to be true unless disproved); quid pro quo (a favour or advantage granted in return for something); pro bono (for good, denoting work undertaken without charge, especially legal work for a client on low income); sine die (without day, used when the court is adjourning without specifying a date to re-convene); in camera (in a judge's chambers; in private). 

Well, let me wrap up in good legal way with this disclaimer:

This article does not constitute legal advice or opinion on any matter discussed. It should not be regarded as a comprehensive statement of the law and practice in this area. For legal advice, please go to a lawyer. Even if you have heard this joke:

Question: Why won’t sharks attack lawyers?

Answer: Professional courtesy. 

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