Report No. 189

Law Commission's views

The Law Commission in its 14th Report on 'Reform of Judicial Administration' (1958) has recommended that providing the mechanism for the administration of justice is the primary duty of the State. It has recommended at para 42 of Chapter 22 as follows:

"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". (emphasis supplied)

The Law Commission also observed (at para 8, Chapter 22):

"A modern welfare State cannot with any justification sell the dispensation of justice at a price."

Court fee is also a limitation and deterrent to access to justice. In the same 14th Report, the Law Commission had observed that if access to the court is dependent upon the payment of court fee and if a person is unable to have access to court, justice becomes unequal. It observed (at p.587):

"Equality in the administration of justice thus forms the basis of our Constitution. Such equality is the basis of all modern systems of jurisprudence and administration of justice. Equality before the law necessarily involves the concept that all the parties to a proceeding in which justice is sought must have an equal opportunity of access to the Court and of presenting their cases to the Court. But access to the Courts is by law made dependent upon the payment of court fees, and the assistance of skilled lawyers is in most cases necessary for the proper presentation of a party's case in a court of law. In so far as a person is unable to obtain access to a court of law for having his wrongs redressed or for defending himself against a criminal charge, justice becomes unequal and laws which are meant for his protection have no meaning and to that extent fail in their purpose."

The Law Commission again observed in its 114th Report on 'Gram Nayayalaya' (1986), that it is the fundamental duty of every government to provide mechanism for resolution of disputes. The Commission observed (at para 4.3):

"It is the fundamental obligation of every centralized governmental administration to provide for mechanism for resolution of disputes arising within their jurisdiction. No civilized government can escape this responsibility. No government can afford to have their citizens perpetually engaged in finding solution to their disputes by an unending process which may be simultaneously costly and open ended. This fundamental duty can not be disowned under the pretext of non-availability of requisite finance."