NOTHING COMES FOR FREE: THE CONCEPT OF COURT FEE Shajeeda Tajdeen LAW CRITIQUE Fri, Jun 28, 2019, at ,12:27 PM The Indian legal system is one of the largest judicial systems in the world and because of its independence it often grabs a lot of attention from worldwide. More or less everyone knows the hierarchy and working structure of the legal system, but what remains neglected is the monetary aspect on which the judiciary works i.e. the court fees. The harsh truth about this concept is that amount which is charged on the litigant as court fees are shockingly high. The concept of court fees dates back to the 18th century. It was accepted and implemented initially in the presidency towns of Bombay(Mumbai), Madras(Chennai) and Bengal. The main intention behind bringing in this idea was to discourage and prevent senseless or insubstantial litigation as it was overburdening the judiciary. By the end of 1870, it was proved that the concept of levying court fees was a success as it had, to a very large extent prevented insignificant litigation. The Act which was then specifically formulated for court fees i.e., ‘The Statement of Object and Reasons of the Court Fees Act’ stated that, ‘the experience gained of their working during the two years in which they have been in force seems of be conclusive as to their repressive effect on the general litigation of the country,’ and it goes on to impose a maximum chargeable fee for litigation in India. However, there were amendments made to the said Act in order to change the concept of uniformity in charging high fees as it was too harsh and unjust on the litigants. After Independence and with the advent of the Constitution the concept of Court fees saw some more major changes. Now the amount which is received as court fees not only helps in deterring frivolous litigation but it also helps in maintaining and administering the Courts. The Seventh Schedule to the Constitution states that the authority of levying taxes and fees would be distributed between the Union and the States and by virtue of this Schedule the power of imposing Court fees rests with the State Government with regards to the Courts which are within the ambit of their jurisdiction and thus the Supreme Court is an exception to this. Many states like Rajasthan, Tamil Nadu, and Karnataka follow the process wherein they charge court fee as a percentage of the value of the suit (which may range to anywhere between 3% to 10%)that is filed before them (ad valorem), owing to which there is no limit as to what will be the maximum amount that can be charged as Court fees, because the amount differs with each case. Till here the system was problematic but it becomes worse when we move from public to private law. Because the main purpose of private law such as contract or tort is not to create any new right or award windfall gains but only to declare and restore the rights of litigants for the damage they have suffered. Basically, private laws do not allow either of the parties to make any profit out of going to court, it only puts them back in the place they would have been originally, if the loss would not have happened. And in this scenario if the court fee is levied than the object of private law that is restoring the original position of the parties cannot be achieved because in reality the aggrieved is not truly compensated, as in the aggrieved party can only ever be awarded damages only after the State Government makes necessary deductions in the name of court fees which is mandatory in nature. In 1958, the 14th Law Commission had briefly examined the concept of court fees and the pattern in which they are imposed in order to ascertain whether this concept should prevail or not and if yes then to what extent is it serving the purpose, because the people who are engaged in granting justice i.e. an entire lot of people who were in the judicial system right from the lowest to the highest level are entitled consideration in return for their service. After detailed scrutinization it was concluded that nothing comes free but subsequently, it was summarised that amount which is received from civil litigation is more than enough not only for civil litigation but also for criminal litigation, and it also contributed to the salaries of judicial staff including the Government’s counsel. Finally, the Law Commission stated that the State Governments manage to incur profit from levying court fees. Further, the Law Commission went on to declare that this was unjust and thus there should be a proper mechanism which would assure that fees that is imposed should be in proportion with services rendered and not more than that. It backed its view by stating that it is the foremost duty of the judiciary to administer criminal justice because it is one of the sovereign functions of the State and thus the civil litigants with true grievance cannot be made liable to pay the cost to cover the expenses of the Judiciary. However, the other reports which followed the 14th Law Commission deferred from the past view by stating and affirming that the cost of administration of justice cannot be judged in terms of court fees generated. The Apex Court had also stated its view on this concept in many cases. Justice Krishna Iyer declared that court fees are levied on such profiteering scale without correlative expenditure on the administration of civil justice that the levies often smack of sale of justice in the Indian Republic. Furthermore, in the case of Zenith Lamps, Aswathanarayan Setty and Sriramulu the Apex Court stated that the system of ad valorem court fees can only be termed as unconstitutional if there correspondence or interrelationship between the fees collected and the services delivered. The Apex Court had warned the States about the high charges of the court fees but it also stated that by virtue of the Constitution that it is the responsibility and duty of the Legislature to take a final call on this subject and thus the Judiciary cannot do anything apart from instructing and recommending. Thus by the above context, it is concluded that the system in which the fees is levied and collected and the manner in which they are been put to use is arbitrary in nature. And with overgrowing number of litigation and the amount of court fee also sees a huge surge. It should be remembered that the administration of justice is an important function of the State whether backed by court fees or not. And thus the concept needs to be reconsidered and amendment so as to suit the needs and demands of the new crowd of litigants. By levying high court fees the main purpose of granting full justice to its citizen almost seems to be lost. There should be some proper Central mechanism which should regulate the system of court fees, so that the litigants are saved from paying higher amounts and they are not left alone at the mercy of the respective States.