Here is something you rarely hear about while discussing the Indian legal system – the court fees are appallingly high.
Court fees, or the idea that a litigant must pay for a shot at the justice system, were first introduced in the 18th century in Madras, Bengal and Bombay presidencies to deter frivolous litigation. A great many litigants interact with legal system the civil courts, and from the 18th century, have been required to pay a significant fee for the right to file a suit.
By 1870, it was clear that the system of high court fees had worked a little too well to deter litigants. The Statement of Objects and Reasons of the Court Fees Act passed in 1870 notes that "the experience gained of their working during the two years in which they have been in force, seems to be conclusive as to their repressive effect on the general litigation of the country," and goes on to impose a maximum chargeable fee for litigation in India. Pertinently, the Statement of Objects and Reasons notes that a uniform high fee would be harsh and inequitable on litigants, and proceeds to make amendments to it.
Cut to post independence India, and things change a little bit. We now have the Seventh Schedule to the Constitution that (among other things) divides up powers to impose taxes and fees between the Union and the States. States now have the powers to impose "fees taken in all courts except the Supreme Court." (Entry 3 to List II, VII Schedule) A number of states, including Rajasthan, Karnataka and Tamil Nadu, proceeded to pass enactments imposing a fee as a percentage of the value of a suit (ad valorem), with no cap on the maximum fee that may be collected. These fees are ostensibly collected to support the court administration and fee structure, and go to the consolidated fund of the state.
Let us pause to examine the implication of this here. The value of a suit could be determined by any number of factors – usually it's the amount of money claimed, or the value of the immovable property under litigation. So if a plaintiff wanted to sue to get back money owed to them, or to void a contract that they were coerced into entering, or for a declaration that the trespassers on their property are to be evicted, they could be looking at paying anywhere between 3 and 10 per cent of the value of the suit just for the privilege of approaching the courts, and even before their claims are decided. This idea of paying money just to be heard is deeply problematic.
It is even more so when we remember that the purpose of private law – tort or contract - is not to create new rights or award windfall gains – it is to declare rights and litigants people for the damage they have suffered. In other words, the law simply does not allow a party to make a profit out of going to court. It only restores them to the position they would have been in had the wrong never been done to them. And by imposing a steep court fee, the law makes sure that even this is never achieved, A plaintiff is never really compensated – she can only ever be awarded damages minus the fat cut that the state takes for her right to take a shot at the justice system.
But, you ask, surely someone needs to pay for the privilege of being heard? After all, don't courts also provide services to people using the criminal justice system, say, or people making use of High Courts' jurisdiction to determine questions of fundamental rights? This was the question that the 14th Law Commission of India examined in considerable detail in 1958. The Law Commission found that court fees from civil litigants contributed enough to account for not only civil litigation, but also for criminal litigation, the salaries of judicial staff and the cost of paying the government's counsel in various cases. The State actually managed to turn a profit on civil litigation!
The Law Commission went on to observe that this was grossly unfair, and that there was a need to ensure that court fees paid were actually commensurate with the services rendered. Administering criminal justice is a part of the State's sovereign function – civil litigants with a genuine grievance cannot be made to cover the costs. Successive Law Commissions have reiterated this, noting that "the cost of administration of justice, being a sovereign function essential to the democratic system of governance cannot be evaluated in terms of the court-fees generated."
The Supreme Court has also expressed its views on the issue. In 1980, Justice Krishna Iyer observed that court fees are imposed on "such a profiteering scale without correlative expenditure on the administration of civil justice that the levies often smack of sale of justice in the Indian Republic." Other judgments have been more cautious. In Zenith Lamps (1972), Aswathanarayana Setty (1988) and Sriramulu (1996), the Supreme Court held that the system of ad valorem court fees would only be unconstitutional if there were no correlation between the fees collected and the services rendered. Even as the Court cautioned States on the system of levying court fee, and expressed regret that the fees were as high as they are, the Court reasoned that this was a matter best left to the legislature to decide. Pertinently, none of these judgments record just how much money is collected, or how much is actually spent by the States on judicial administration.
In the author's opinion, this position needs reconsideration. Making the administration of courts and the provision of legal aid dependent on collections of court fee is plainly arbitrary. The administration of justice is simply too important a function to be left to the vagaries of fee collection. A court fee is not a tax paid by all citizens of a country – the burden of making our courts run smoothly is disproportionately borne by people with genuine grievances, in the guise of a fee paid for only a shot at justice. In a democratic society, we would be hard pressed to justify this any longer.
(The author is a Chennai-based lawyer. Views are personal)