Report No. 14
31. Evershed Committee.-
In 1951, the Committee on Supreme Court Practice and Procedure in its Second Interim Report dealt in detail with the fees charged by the courts. Broadly speaking, their recommendations included a suggestion for the reduction of court-fees, without injustice to the taxpayer. They laid down that there should be an initiating fee to cover all proceedings up to settling-down and a further setting down fee to cover the trial of the action in all proceedings up to .judgment, including the order of the court.
While they advocated the retention 'Of .the various fees payable in respect of filing documents such as searches, taking copies and other matters, they were of the view that a number of small fees could be abolished; and that the number of fees charged should be reduced to the minimum possible in order to ensure that the litigant pays a fair fee for the services which are in fact rendered. They also held that there should be some relation between the amount of the fee and the nature of the services in respect of which it was charged, though they rejected the suggestion that fees should be graded on a scale depending upon the amount at stake in the action. They accordingly approved the present practice of requiring the same fee in respect of the same service, whatever be the amount at stake.
32. The principle seems to have met with official acceptance in India also. The Taxation Enquiry Commission expressed itself on this point as follows:
"We feel ourselves in entire agreement with a view which has been expressed by the Chief Justice of India and the Chief Justices of certain High Courts to the effect that court-fees (assuming they are charged at all) should only be on the basis of covering the expenses of the administration of justice. On the more restricted question of reduction of court-fees, however, we recommend an urgent review of these fees by those few State Governments which now have from them a revenue which substantially exceeds the cost of the administration of justice in order that the fees may be suitably reduced and readjusted as soon as possible. Within the overall limits of the principle we have endorsed viz., that the total receipts from court-fees should be such as by and large only to cover the cost of administration of justice. "1
1. Report, Vol. III, p. 108.
As already stated the Taxation Enquiry Commission not having before it an analysis of the figures on the Revenue and Expenditure side under the head "Administration of Justice failed to appreciate that there was on the civil side an appreciable surplus calling for the application of the principle they had endorsed.
In practice therefore the principle which governs the levy of court-fees in India is clearly opposed to the principle accepted by the Commission.
33. Court-fees in the U.S.A.-
The Code providing for the payment of fees in the United States Courts lays down that a party instituting any civil action, suit or proceeding, whether by original process, removal or otherwise should pay a filing fee of $ 15. On an application for a writ of habeas corpus, however, the fee payable is only $ 5. In the case of an appeal, a fee of only $ 5 is payable by the appellant.
In the scale of taxation of costs, however, there are several items in respect of which costs may be awarded, such as fees of the clerk and Marshal's fees, fees of the Court Reporter for all or any part of the stenographic transcript necessarily obtained for use in the case, fees and disbursements for printing and witnesses; fees for copies; Attorney's and proctor's docket fees, Marshal's fees are specified. These are in the nature of process fees levied in our courts for service of writs, for effecting seizure, sale of property, for attachment, proclamation, for copies and the like.
34. Ad-valorem fees not common abroad.-
Neither in the United Kingdom nor in the United States does a system of levy of court-fees graded on the stake in action prevail. In the United Kingdom there are, however, a few items where ad valorem fees are charged. Generally speaking, a simple initiating fee is charged in the generality of cases in both the countries. In the United Kingdom, in addition to the initiating fee, there is another fee known as the "setting down" fee, which covers the later stages of the trial. Various small fees occasioned by the circumstances of each case are also charged.
35. Diversity in court-fees in the States.-
The large difference in the scale of court-fees levied in different States is surprising. The variation from State to State in the scale of remuneration of judicial officers and ministerial staff is small. It is true that the number of the personnel employed differs from State to State in accordance with the number of courts and the needs of the public. But as a rule, more courts are established only when there is more litigation. The greater the number of suits, the larger the court-fee income. The Table at an earlier page shows the large variation in the court-fees charged in different States. It is difficult to appreciate the reasons for these large differences in the scale of fees from State to State unless it be the varying needs of the States for revenue. The position is similar with regard to fees leviable under Schedule II of the Court-fees Act.
36. Uniformity, desirable.-
Why should State A levy an ad valorem court-fee of Rs. 142-8-0 on a plaint claim of Rs. 1,000 when State B levied only Rs. 75-0-0? On higher valuations, the differences are even more striking. On a suit claim of Rs. 50,000 the fee under the Court-fees Act of 1870 was Rs. 1175. In Bombay, it is now Rs. 1625-0-0, in Uttar Pradesh it is Rs. 2,190-10-0 and in Madras it is Rs. 3,750. In Andhra Pradesh and Madras, new Court-fees Acts have been enacted which take the place of the Court-fees Act of 1870 and scales of fees have been prescribed which are higher than those obtaining anywhere else in India.
In these States and some others, there is no limit to the maximum fee that can be levied. While States may well be within their rights in amending the Court-fees Act or enacting Court-fees legislation of their own, the result appears to be a complete want of equality between litigants in different States. We are of the view, apart from the question of the heavy burden of court-fees, that there should be some measure of uniformity in this matter.
37. Principle governing the levy of court-fees.-
We have already indicated our view that the administration of justice is a service which the State is bound to render to its citizens and that the charge for such administration should, broadly speaking, fall on the general tax payer. The position in regard to this service should, in our view, be no different from that in regard to any other service rendered by the State. The State should, therefore, have as at its ultimate objective the charging of nominal fees, as we understand is being done in the United States. We are conscious, however, of the financial condition of the States and realise that this objective can be reached only by degrees over a period of time.
It is imperative, however, that the civil litigant should on no account be made to pay for the costs of the administration of criminal justice. Private justice and public justice must for this purpose and to this extent be kept apart. We recommend the immediate acceptance of the principle accepted and applied in England that the cost of the judiciary be looked upon as a charge to be borne by the general tax payer and that the remaining cost of the administration of civil justice only should be borne by the fees paid by the civil litigant. The cost of the administration of public justice should be borne entirely by the State.
38. Court-fee on Article 226 petitions to be small.-
We are of the view that it is the duty of the State to make it very easy for the citizen to vindicate his fundamental and other legal rights. Making the courts easy to access for this purpose is an important objective of our Constitution. The State must, therefore, further the objective laid down in Articles 32 and 226 of the Constitution by providing that court-fees payable on applications under these two articles should be very small, if not nominal. No further argument is needed in support of this recommendation.
39. Abolition of miscellaneous charges.-
We also recommend the abolition of court-fees which are at present charged on items, like certified copies, admission of exhibits and so forth. The levy of these court-fees occasions delays and expense and put a heavy burden on the ministerial staff. The State should be content to charge a fee at the initiation of the proceeding and not to charge fees in driblets at various stages of the proceeding.
40. Refund of portion of court-fee in certain cases.-
We also recommend that in cases which are disposed of ex-parte or which are compromised before the actual hearing, half of the court-fee should be refunded to the plaintiff. We understand that a similar provision providing for the refund of half the court-fee in cases which are dismissed as settled out of court before any evidence has been recorded on the merits of the claim exist in Madras.
41. Lower court-fees for appeals.-
Finally, we recommend that the court-fee payable on First and Second Appeals should be half of the amount paid in the trial court as the time taken in the hearing of an appeal is very much shorter than that taken by the trial of the suit.
42. Summary of recommendations.-
Our recommendations regarding court-fees may be summarised as follows:
(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 the 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 ex-parte 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.