Report No. 54
Various heads of expense
1A.6. None of these items is governed by the Code of Civil Procedure. The first of them-court fees-is regulated by the Court Fees Act, (or by the corresponding State law where a full-fledged state law has been enacted). The second item is not, as between party and counsel, regulated by law. The third and fourth items are regulated by rules made by the High Courts. The fifth is, in its very nature, elastic. So also is the sixth.
1A.7. These items of expenditure are, thus, outside the Code, but we think it proper to deal here with the first item-Court fees-since the matter is of great importance. This we have chosen to do notwithstanding the fact that Parliament's legislative competence to legislate on court fees is limited to Union Territories, as the subject falls in the State List.1
1. Constitution, Seventh Schedule, State List, Item 3" fess taken in all courts except the Supreme Court."
1A.7. We may in this connection mention that in one of the Reports of a previous Commission, the question of court fees has been considered at length.
1A.8. The recommendations in that Report regarding court fees may be summarised as follows.1
(1) It is one of the primary duties of the State to provide the machinery for the administration of justice and on principle it is not proper for the State to charge fees from suitors in courts.
(2) Even if court fees are charged, the revenue derived from them should not exceed and cost of the administration of civil justice.
(3) The making of a profit by the State from the administration of justice is not justified.
(4) Steps should be taken to reduce court fees so that the revenue from it is sufficient to cover the cost of the civil judicial establishment. Principles analogous to those applied in England should be applied to measure the cost of such establishment. The salaries of judicial officers should be a charge on the general tax-payer.
(5) There should be a broad measure of equality in the scales of court fees all over the country. There should also be a fixed maximum to the fee chargeable.
(6) The rates of court fees on petitions under Articles 32 and 226 of the Constitution should be very low, if not nominal.
(7) The fees which are now levied at various stages such as the stamp to be affixed on certified copies and exhibits and the like should be abolished.
(8) When a case is disposed of or is compromised before the actual hearing, half the court fee should be refunded to the plaintiff.
(9) The Court fee payable in an appeal should be half the amount levied in the trial court.
1. 14the Report, Vol. I.
1A.9. We would like to express here our broad agreement with the approach adopted in the Report in respect of court fees, and with the recommendations set out above.
1A.10. Our revised terms of reference require us to consider the changes needed to bring laws in harmony with directive principles. Of the articles in the Constitution dealing with directive principles, the article most relevant to the sphere of civil procedure is that relating to social order,1 which is as follows:-
"38. State to secure a social order for the promotion of welfare of the people-The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which justice, social, economic and political, shall inform all the institutions of the national life."
We have kept this in mind in making our recommendations in this Report.
1. Article 38 of the Constitution.