Report No. 189

Chapter V

Full Cost Recovery: An Anathema to The Concept of Access to Justice: The Experience in other Countries

The letter of reference of the Department of Justice, which has been adverted to in Chapter I, appears to be premised on the concept of testing the economic efficiency of an organization or department (usually, of the government) by asking whether it earns more than it spends. We have just seen why such an approach may not only be inapposite but legally and constitutionally untenable as far as the judiciary is concerned. On the contrary, since financial independence of the judiciary is integral to its functioning as an independent organ of state, this can and should never be the criteria for testing its performance.

Nevertheless, as discussed in the previous chapter, the judiciary has thus far not received the funds it requires from the governments both at the Centre and the States. Further, available data reveal that it invariably earns more by way of fees and judicial stamps than what is spent on its upkeep. This prompts a questioning of the factual basis for the reference that the court fees being levied at present covers "only a fraction of the administrative costs of the judicial process."

The principle that the costs of administration of justice should be met entirely through court fees levied on users is termed as `full cost recovery'. In this chapter it is proposed to examine the practice in some of the commonwealth countries where this principle which was applied long ago, has now been either modified or given up altogether. In fact, a survey of the available literature reveals that the full cost recovery principle has been found to be wholly unsupportable and is not accepted in any country in the Commonwealth or in Europe.