Report No. 189
The view of the Supreme Court regarding court fee as a limitation on access to justice expressed in P.M. Aswathanarayana Shetty v. State of Karnataka (supra), is worth recalling. The Court said:
"The court fee as a limitation on access to justice is inextricably intertwined with a 'highly emotional and even evocative subject stimulating visions of a social order in which justice will be brought within the reach of all citizens of all ranks in society, both those blessed with affluence and those depressed with their poverty'. It is, it is said, like a clarion call to make the administration of civil justice available to all on the basis of equality, equality and fairness with its corollary that no one should suffer injustice by reason of his not affording or is deterred from access to justice. The need for access to justice, recognizes the primordial need to maintain order in society as disincentive of inclination towards extra-judicial and violent means of setting disputes."
The Court further observed:
"The stipulation of court fee is, undoubtedly a deterrent to free access to justice."
The Court also said:
"Indeed all civilized government recognize the need for access to justice being free."
The Court also observed (at para 95):
"The levy of court fee at rates reaching 10 per cent ad valorem operates harshly and almost tends to price justice out of the reach of many distressed litigants. The Directive Principles of State Policy, though not strictly enforceable in courts of law, are yet fundamental in the governance in the country. They constitutes fons juris in a welfare State. The prescription of such high rates of court fees even in small claims, as also without an upper limit in large claims, is perilously close to arbitrariness and unconstitutionality. The idea is, of course, a state of affairs where the State is enabled to do away with the pricing of justice in its courts of justice."
Views of jurists
Need for access to justice has been described by a learned author Cappelleti in his book "Access to Justice", Vol. I Book 1. He says (at page 419):
"The need for access to justice may be said to be twofold; first, we must ensure that the rights of citizens should be recognized and made effective for otherwise they would not be real but merely illusory; and secondly we must enable legal disputes, conflicts and complaints which inevitably arise in society to be resolved in an orderly way according to the justice of the case, so as to promote harmony and peace in society, lest they foster and breed discontent and disturbance. In truth, the phrase itself 'access to justice' is a profound and powerful expression of a social need which is imperative, urgent and more widespread than is generally acknowledged."
Recently, V.R. Krishna Iyer J. in an article published in 'The Hindu' dated October 10, 2003 has stated:
"Access to justice is basic to human rights and Directive Principles of State Policy become ropes of sand, teasing illusion and promise of unreality, unless there is effective means for the common people to reach the Court, seek remedy and enjoy the fruits of law and justice."
On high amount of Court fees in India, a former Chief Justice of Madras observed as follows:
"They (the litigants) pay high Court fees and it is beyond question that the aggregate amount is far more than sufficient to cover the total cost of the administration of civil justice. When I came to India, I was amazed at the high Court fees which litigants were called upon to pay, the position being so different in England." (Madras Law Journal 1947, Vol. I Journal)
A learned author Findlay Shirras observed in his book 'Science of Public Finance', Vol. II at p. 674-675, as follows:
"Fees are levied in order to defray usually a part, in rare cases the whole of the cost of services done in public interest and conferring some degree of advantage as the fee payer."
Levying high court fees is also criticised by the noted jurist H.M. Seervai, in his book Constitutional Law of India, 3rd Ed. Vol. II p. 1958. He observed that court fees should not be a weapon to stifle suits or proceedings and that though in fixing the court fees regard may be given to the amount involved,
"a stage is reached when an increasing amount ceases to be justified".
Need for providing more money by the Governments for the better administration of justice