October 22, 2015

Court Fees ≠ Fees for Accessing Justice System
By
Talha Abdul Rahman

Judicial systems contribute to maintaining peace in the society and the ease of access of a reliable judicial system reinforces faith in the rule of law. It is therefore a natural corollary of existence of a judicial system that the procedures and costs in accessing the remedy of approaching the courts have to be only nominal. Judicial system is entitled, as of right, to get funded from tax payers’ money and it is improper for judicial system to increase the costs of accessing the system in order to sustain itself. In short, a litigant is not to be seen as a person accessing “services” of the court and therefore, cannot be treated as “customer” who has to pay up.

On 19th August, 2014, the Supreme Court of India has introduced a new set of rules called the Supreme Court Rules, 2013 replacing the old set of Rules framed in 1966. While the 2013 Rules do bring in a number of changes, it can be termed as a lost opportunity to hold a consultative process with lawyers as well as litigants to devise a better set of rules ensuring ease and equality of access to justice.  The Supreme Court Bar Association has challenged the 2013 Rules and had requested the Supreme Court to defer the implementation of the 2013 Rules. While the petition to challenge the 2013 Rule is pending adjudication, the request for deferral was declined.

Amongst others, the Supreme Court’s decision to enhance the court fees payable to access the courts and linking the same to the identity of the litigant and subject matter of the case does not seem to promote access to justice. To begin with, no explanation is available in public domain for substantially increasing the court fees, and unless a rational explanation is available for the same, it is difficult to justify the enhancement merely only speculation of increase in the cost of adjudication since 1966.
In any event, as suggested above, it is contrary to public policy to force a litigant to pay “court fees” as a fees to access the judicial system, especially when judicial system is, even under the Constitution, the residuary system of dispute resolution. The importance of civil justice system can be gauged from the following except from Dame Hazel Gen’s Hamlyn Law Lecture (2008):
The civil law maps out the boundaries of social and economic behaviour, while the civil courts resolve disputes when they arise. In this way, the civil courts publicly re-affirm norms and behavioural standards for private citizens, businesses and public bodies. Bargains between strangers are possible because rights and responsibilities are determined by a settled legal framework and are enforceable by the courts if promises are not kept. Under the rule of law, government is accountable for its actions and will be checked if it exceeds its powers. The courts are not the only vehicle for sending these messages, but they contribute quietly and significantly to social and economic well-being.

In fact, 14th Law Commission of India chaired by Mr. M.C. Setalvad, India’s first attorney general has stated that:
India is, so far as we know, the only country under a modern system of government which deters a person who has been deprived of his property or whose legal rights have been infringed from seeking redress by imposing a tax on remedy he seeks. Our States provides hospitals which give free treatment to persons who are physically afflicted. But if a person is injured in the matter of his fundamental or other legal rights, we bar his approach to the Courts except on payment of a heavy fee.  The fee which we charge is so excessive that the civil litigant seeking to enforce his legal right pays not only the entire cost of the administration of civil justice but also the cost of incurred by the State in prosecuting and punishing criminals for crimes with which the civil litigants has no concern.
While the benefits of court system are reaped by the whole society, the burden of paying the court fees has been conveniently placed on a litigant. This placing of burden on a litigant, ought not to be abused either by the Government or by the Court itself. 

In fact, a civil litigant is also required to pay court fees to sustain the criminal justice system. It will, however, have to be examined separately as to the extent for which the State Governments defrays the expenditures linked to the system of adjudication of criminal and civil cases. The Law Commission had concluded that, “having regard to court fees alone and ignoring other items of expense, to an honest litigant trying to vindicate a just claim, the Court of justice would seem to wear a stern and even cruel frown instead of an inviting and friendly look.”[1]  It can be said that, albeit with a degree of caution, the conclusions of the 14th Law Commission reached in 1964 continue to be true.

Unfortunately, the 2013 Rules do not make things any better. Increasingly ‘court fees’ are being viewed as quid pro quo for accessing a justice system – akin to an ordinary commercial service.





[1] Pg 505.

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