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Report No. 128

Chapter IV

Anticipations

4.1. The ideal to be pursued can be summed up in one sentence: economic disability of any kind shall not preclude a man from having access to justice. Whatever strata of the society he comes from the affluent or the impoverished, each should have access to justice unimpeded by any kind of economic barrier. Even a developing society may have to formulate this as an ideal. If ideal has to be kept in view, the Law Commission could not have evolved the approach it has done in this report nor the Committee of Law Ministers could have backed out from its 1980 stand of abolition of court fees to 1984 stand of rationalising the same.

The approach of the Law Commission, therefore, is generally earthy in this behalf, being pragmatic and not dogmatic. The Commission stands on the firm ground of realities because in its view, every recommendation that it makes -and by now they are innumerable in terms of figures - yet each one has kept in view the resource crunch of a developing society. The Commission, therefore, went to the other extreme of pointing out from where additional resources for lay out on administration of justice can be generated.1

1. LCI, 127th Report on Resource Allocation for Infra-structural Services in Judicial Administration - (A Continum of the Report on Manpower Planning in Judiciary: A Blueprint), Chapter V.

4.2. Therefore, the second approach is to take from. where it is available and to extend it where it is needed. That justifies in this report the theory of cushion and the classification based thereon. That in fact is theory of taxation which permits higher bracket income group a paying more tax, thought services of the State are available equally to those when pay and those who cannot afford to pay. This larger principle must inform the approach of the Law Commission till such time as the State is in a position of totally abolish court fee irrespective of the status of the person, of the strata from which he *** comes *** and the gender. The Law Commission hopes that we will be able to reach this ideal in none-too-distant future.

4.3. But till then the question is what should be the guiding consideration. And here the Law Commission's approach departs from the standard accepted till now, namely, the emphasis on subject-matter of dispute rather than on litigant who comes to the court. Up to now, behind the mountain of ad valoremism, the litigant has been made invisible. It is the litigant who needs the services of the court. It is his approach to the subject-matter of the dispute, its evaluation, its place in his life-style that is material. A dispute involving millions may be of little or no value to one dealing in billions. But a dispute involving a few rupees may make or mar a poor man or one in none-too-happy circumstances. Therefore, the basic approach has been to remove the mountain ad-valoremism and to make the invisible litigant visible and the will be the starting point of all consideration of court fees. That is the basic approach in this report.

4.4. Does it need further justification? The Department of Justice, Ministry of Law and Justice, which forwarded the report of the Committee of Law Ministers itself provides the rationale for this approach. At an inconvenient moment in the development of this country, in 1980, the then Committee pursued the ideal. The Law Commission would have been very happy to be in time with them namely, abolition of dreaded court fees but before the Law Commission stepped in, the Committee of the Law Ministers realistically reappraised the situation and retained court fees and recommended only nationalisation thereof.

4.5. The Law Commission still pursues the ideal but in part. The Law Commission recommends that anyone in receipt of an income up to Rs. 12,000 per annum or the other classes specifically set out in the report shall be totally exempt from payment of court fee in any matter at any stage of the proceeding. This is abolition in favour of those who deserve it richly. But a developing society needs resources and, therefore, the court fees and the service charges of civil administration have been considerably raised in respect of those persons who will not feel even the slightest handicap in access to courts because of the revised court fees or revised recovery of court service charges. To them it is a plea bite. To the State it is an important inlet of income for expending services of administration of justice, as recommended in some earlier reports.1 Therefore, no one can say that the approach is utopian. And that is the justification.

1. LCI, 120th Report on Manpower Planning in Judiciary: A Blueprint; LCI, 121st Report on A New Forum for judicial Appointments; LCI, 127th Report.

4.6. However, the Law Commission would be extremely happy if the State Governments or the Government of India, as the case may be, view the court fees as something incompatible, with a society governed by rule of law and would, therefore, like to abolish it.

4.7. After an inordinate delay of nearly two years since the constitution of this Commission, assistance of five experts was provided to this Commission by the Government of India, each expert having a time span of six months. Each one of them undertook to work on different specified topics. Prof. H.C. Dholakia, Head of the Faculty of Law, Maharaja Sayajirao University of Baroda, agreed to assist the Commission by undertaking a research on the question of 'cost of litigation'. The Law Commission must express its grateful thanks for the assistance received from Prof. Dholakia, which is hereby acknowledged.

D.A. Desai,
Chairman.

V.S. Rama Devi,
Member-secretary.

New Delhi,
Dated: June 1988



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