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.
