Report No. 236
VI. EASIER ACCESS TO COURTS AND COURT-FEE
6.1 Before formulating the recommendations, the Commission would like to take note of the thinking of Parliamentary Standing Committee that the poor and indigent litigants should have the access to Courts with least cost. In this context, the Commission adds that irrespective of realization of additional court-fee revenue from the corporate-appellants and ploughing back that meagre revenue for the purpose of extending assistance to the have-nots, there must be focus on revisiting and refining the systems already in force to achieve the desired objective of minimizing the cost to the poor litigants and improving the quality of legal aid. Establishing cost-effective and hassle-free access to justice should be a continuous endeavour on the part of the Government as well as the judiciary. Providing better and easier access to the courts - from the lowest to the highest, and extending qualitative legal aid to the common people who cannot afford the cost is a goal to be achieved without linking it up with the quantum of court-fee. This laudable agenda has to be tackled independently.
6.2 We shall briefly advert to the relevant provisions of law and mechanisms in place to extend legal aid and assistance to the poor and economically handicapped persons and others. In the Code of Civil Procedure, 1908 Order XXXIII enables an indigent person to file a suit without payment of court-fee or any fee for service or process. An indigent person is defined as one who is not possessed of sufficient means (other than property exempt from attachment) to pay the prescribed courtfee. Enquiry into the means of an indigent person has been simplified by conferring that power in the first instance on the chief ministerial officer of the court.
Further, the court can assign a pleader to an unrepresented indigent person in accordance with the rules made by the High Court in this regard. In regard to appeals, a similar provision is there in Order XLIV of the Code of Civil Procedure, 1908 enabling an indigent person to file the appeal without payment of courtfee. Where a party was allowed to sue or appeal as an indigent person in the court from whose decree the appeal is preferred, no further enquiry in respect of the question whether or not he is an indigent person shall be necessary, if the party files an affidavit stating that he has not ceased to be an indigent person since the date of the decree.
6.3 The Legal Services Authorities Act, 1987 has amplified the scope of legal aid to the poor and needy persons and created statutory fora to extend the legal aid and services to the eligible parties. There is a National Legal Services Authority at the apex level with the Chief Justice of India as patron-in-chief and a senior Judge of the Supreme Court as the executive Chairman. The Supreme Court Legal Services Committee headed by another senior Judge consists of ten members including the Attorney General, the officials of the concerned Ministries / Departments of Government of India and Advocates practising in the Supreme Court. The functions of the central authority (NALSA) are specified in section 4 of the said Act.
The Act also provides for the constitution of State Legal Services Authority, High Court Legal Services Committee, District Legal Services Authority and Taluk Legal Services Committees. Each authority is required to establish Legal Aid Fund. The major component of such funds are the grants given by the NALSA and State Governments. Further, considerable amounts are received by these bodies by reason of the orders of the courts directing remittance of costs to the credit of Legal Service Authority. The Legal Service Authorities in a majority of States have sufficient funds at their disposal, but, infrastructure is lacking in many States. With the allocation of substantial amounts to Legal Service Authorities pursuant to the recommendations of Thirteenth Finance Commission, the infrastructural facilities are bound to improve.
6.4.1 The persons entitled for legal services are specified in section 12 of Legal Services Authorities Act, 1987. Under section 12, every person who has to file or defend a case shall be entitled to legal services under this Act if that person, is- (a) a member of a Scheduled Caste or Scheduled Tribe; (b) a victim of trafficking in human beings; (c) a woman or a child; (d) a person with a disability; (e) a person under circumstances of undeserved want such as being a victim of a mass disaster, violence, natural calamities etc; (f) an industrial workman; (g) a person in custody, including custody in a protective home or a juvenile home or psychiatric hospital; and (h) in receipt of annual income less than rupees 50,000/-.
6.4.2 As per section 13, these persons are entitled to legal services provided that the concerned authority is satisfied that such a person has a prima facie case to prosecute or defend.
6.5 The expression 'legal service' includes the rendering of any service in the conduct of any case or other legal proceeding before any court or other authority or tribunal and the giving of advice on any legal matter. The Supreme Court Legal Services Committee as well as the other Committees at the High Court and District levels maintain a panel of lawyers who are required to give legal assistance to eligible persons specified in section 12. Some of the matters pertaining to the parties who approach the Legal Services Authority/Committee are referred to Lok Adalats also in order to ensure speedy justice. The NALSA has recently framed a Scheme for Free and Competent Legal Services, 2010. The procedure for approaching the Supreme Court Legal Services Committee by the persons entitled to legal aid is by and large hassle-free. Lok Adalats are held regularly under the auspices of Legal Service Authorities and Committees at various levels.
6.6 As said earlier,extending legal aid and legal services has not been and ought not to be made dependent on the court-fee revenue raised. Broadly speaking, the deterrent is not Court fee. The real problem for any litigant especially an average person who is not eligible for legal aid is the high cost of legal fee and other expenses charged at the lawyers' offices. To some extent, this problem is taken care of by the provisions of the Legal Services Authorities Act, 1987. At the same time, there are some problem areas which may have to be tackled by the concerned Authorities/Committees under the Legal Services Authorities Act, 1987 to realize the goal set out in Article 39A of the Constitution.
The Law Commission is intending to take up the subject of legal aid and services in order to make recommendations for further improving the existing systems after consulting the Judges/officials connected with NALSA and Supreme Court Legal Services Committee. The Commission would also like to mention that in the Supreme Court, the e- filing of cases has been introduced which would obviate the need of personal presence of the appellant/petitioner at the time of filing the cases. Moreover, the Supreme Court can exercise its power under Order XLVII Rule 6 of the Supreme Court Rules, 1966 to dispense with the payment of court-fee in appropriate cases (though it is not specifically stated so in the rules). We have only referred to these aspects in order to highlight that the legal aid and assistance to the poor, needy and vulnerable sections of the society is being extended by the Supreme Court and other Courts without linking it up with the quantum of court-fee and the same policy is being adopted by the Government in sanctioning funds for legal aid.
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