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Report No. 189

Access to justice cannot be for a price

Dicta of the Supreme Court

In Chapter II, we have referred to the principle of 'access to justice'. Just as the State has to maintain a police force to maintain law and order within the country and for which no special tax or fee is contemplated, the position with regard to the duty of the State to provide a system for 'administration of justice' is no different. We may once again refer to the dicta of the Supreme Court.

Speaking through Krishna Iyer J., the Supreme Court in Central Coal Fields Ltd. v Jaiswal Coal Co., AIR 1980 SC 2125 observed that effective access to justice is one of the basic requirements of a system and high amount of court fee may amount to sale of justice. He said (para 2):

"(I)t is more deplorable that the culture of the magna carta notwithstanding, the Ango-American forensic system and currently free India's court process - shall insist on payment of court fee on such a profiteering scale without corrective expenditure on the administration of civil justice that the levies often smack of sale of justice in the Indian Republic where equality before the law is a 65guaranteed constitutional fundamental and the legal system has been directed by Article 39A "to ensure that opportunities for securing justice are not denied to any citizen by reason of economic disabilities".

The right of effective access to justice has emerged in the Third World countries as the first among the new social rights what with public interest litigation, community based actions and pro bono publico proceedings. 'Effective access to justice' can thus be seen as the most basic requirement - the most basic 'human right' - of a system which purports to guarantee legal rights."

The learned Judge further observed (para 5):

"The State, and failing it some day the Court, may have to consider from the point of view of policy and constitutionality, whether such an inflated price for access to Court is just or legal."

In P.M. Aswathanarayana Shetty v. State of Karnataka, 1989 Suppl (1) SCC 696, Venkatachaliah J (as he then was) speaking for the Court stated that a person who lodges a complaint before the police is not expected to pay for the services of the police on the basis whether the subject of complaint is big or small in terms of money. So also in the case of the system of delivery of justice, the State is not supposed to collect fee depending on the nature of the subject matter in dispute. The Court quoted the dictum in the fictional Hogby v. Hogby. We have quoted it in Chapter II but it would be worthwhile to repeat the quotation:

"if the Crown must charge for justice, at least the fee should be like the fee for postage, that is to say, it should be the same, however long the journey may be. For it is no fault of the litigant that his plea to the King's Judges raises questions more difficult to determine than another's and will require a longer hearing in Court. He is asking for justice, not renting house property"

Later in Secy. to Govt. of India v. P.R. Sriramulu, 1996 (1) SCC 345, the Court pointed out that it could not be disputed that the administration of justice is a service which the State is under an obligation to render to its subjects.



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