Report No. 189
Conclusions and Recommendations
On the basis of our discussion in preceding chapters, following conclusions emerge:
(1) Right to access to Courts is now recognized as a basic human right and its origin can be traced to Article 8 of the Universal Declaration of Human Rights passed by the United Nations Organisation in 1948 and to Article 2 of the International Covenant on Civil and Political Rights to which India is a party.
(2) The concept that Court fee should be increased to prevent frivolous and vexatious litigation (an aspect to which reference is made in the Reference) has not been accepted as a basis for Court fee increase right from the time of Lord Macaulay, as well as in subsequent Reports of the Law Commission and in the judgments of the Supreme Court of India. This concept is not consistent with Arts. 21, 38 and 39A of the Constitution of India.
(3) The Court Fees Act, 1870 was enacted as a Central Act and it continued to be in force by virtue of provisions of section 292 of the Government of India Act, 1935 and Article 372 of the Constitution of India. But under the Constitution, it can be amended or repealed only by a Legislature competent to enact a law relating to Court fees.
(4) In view of the specific entry on Court fees i.e. "fees payable in any Court except Supreme Court", mentioned in Entry 3 of List II (State List) of Seventh Schedule to the Constitution of India, the subject of Court fees payable in all Courts (except Supreme Court) is a State subject and only State Legislatures are competent to enact or amend any law on Court fees payable in High Courts and other Courts subordinate thereto (Art. 246(3)), having jurisdiction in any State.
(5) So far as the subject of Court fees payable in Supreme Court, it falls under Entry 77 of List I (Union List) of Seventh Schedule to the Constitution of India and Parliament is competent to enact or amend any law on Court fees payable in the Supreme Court. As per Article 145(1)(f) of the Constitution of India, Supreme Court can also make rules relating to fees payable in the Supreme Court, however, subject to any law made by the Parliament.
In fact, Supreme Court in exercise of its powers conferred under Article 145 of the Constitution, has made rules known as 'Supreme Court Rules 1966' and the Third Schedule to the Rules provides table of Court fees payable in the Supreme Court. In the light of the Rules made by the Supreme Court, which that Court is competent to modify or amend, the Law Commission does not propose to suggest any amendments so far as the Supreme Court is concerned.
(6) So far as Union Territories are concerned, as per Article 246(4) of the Constitution of India, Parliament can make or amend any law relating to Court fees payable in any Court while exercising jurisdiction over any Union Territory. Apart from it, the President of India under Article 240 of the Constitution of India can also make Regulations for any Union Territory except for Delhi and Chandigarh. Any Regulation so made by the President, may repeal or amend any law made by the Parliament applicable to that Union Territory and the regulation so made shall have the same force and effect as an Act of Parliament. However, for the Union Territory of the Pondicherry, any Regulation can be made only if the Legislative Assembly of the Pondicherry is under dissolution or suspension.
Union Territories of Delhi and Pondicherry are also having separate legislative assemblies. These legislative assemblies are competent to make any law on a subject falling in State List (List II) of the Seventh Schedule to the Constitution of India. No doubt, Parliament can still make any law for these Union Territories under its power under Article 246(4) of the Constitution, and any law made by the Parliament may prevail over any law made by any of those legislative assemblies mentioned above.
(7) As mentioned above, the Court fees is a State subject as per constitutional scheme. Following States have repealed Court Fees 119Act, 1870 in application to their respective States and have enacted their own Court Fees Acts. These States are:
(1) Andhra Pradesh
(3) Himachal Pradesh
(4) Jammu & Kashmir
(9) Tamil Nadu
(11) Union Territory of Pondicherry