By Saiesh Kamath
Access to Justice
Access to justice is a principle which has come to be recognised as a human right in international law.[1] Access to justice is traditionally considered as “access to the formal judicial system for dispute resolution.”[2] In its fundamental sense, ‘access’ is used to denote the right to recourse to judicial remedies for a violation of a right.[3] It is considered to be a legal relationship between right-holders and the State as an independent service provider.[4] The United Nations Development Programme considers access to justice to be the primary virtue of systemic institutions.[5] It locates access to justice as a duty owed by the State, an independent service provider, to people who fall within its jurisdiction.[6]The responsibility of delineating and enforcing this principle falls on national governments.[7]
Access to justice has been declared as a fundamental right in India,[8] for it is considered as a facet of the right to life guaranteed under Article 21 of the Constitution of India.[9] The Constitution bench of the Supreme Court examined the historical antecedents of access to justice, and declared that it is a part of the right to life by virtue of being integral to the rule of law in civilised nations and systems.[10] It is argued that access to justice should be effective for justice be realized.[11] One such facet of effective access to justice is the affordability of the adjudicatory process.[12] In this regard, India performs poorly, as indicated by the 2020 edition of the Rule of Law Index. India is ranked a dismal 98th out of 128 surveyed nations in the category of civil justice, one factor of which is accessibility and affordability.[13] India underperforms in this factor relative to the South Asian region and the lower middle income countries.[14]
Natural rights are rights that inhere in, and which are necessary for existence as, humans.[15]The historical understanding was that since access to justice was considered to be a natural right, there was no reason for the State to intervene to effectuate it.[16] Since natural rights preceded the State, the State’s duty was limited to the protection of natural rights from being infringed.[17] However, over time, rights and duties of the State have assumed a social character wherein there is acknowledgement that affirmative action by the State is necessary.[18]
One identifiable obstacle in the way of effective access to justice is court fees.[19] This fee is mandated under Court-Fees Act, 1870 (‘the Act’). In part II, I introduce court fees as it exists in India. In part III, I highlight the issues arising from court fees viz. commodification of justice, lack of viable alternatives, and lack of regard to the sovereign function. In part IV, I offer concluding remarks.
Court Fees
In India, the concept of Court fees finds its statutory basis in the Act, with states empowered to pass such statutes of their own. In the “Introduction” to the Act, it is mentioned that Court fees is “payment for cases to be adjudicated upon.”[20] This statement implies that adjudication of cases is considered a service and the State is considered an independent service provider. With the increasing financial burden of judicial administration, the British enacted the Act with the primary objective of raising revenue for the State to offset the costs.[21] The essential premise of having such a system seems to be that only those who pay would be permitted to avail the service. The imposition of the fee would entail the payer the privilege of accessing the justice system of the land. This would be in the form of the right to approach the Court and have it consider your case. Hence, the right gives rise to a claim to a process, instead of a claim to a particular outcome.[22]
Court fees are either fixed or ad valorem amounts. Courts have affirmed that suits where court fees have not been paid would be liable to be rejected.[23] This is reflective of the seriousness that Courts have extended to Court fees.
Issues
- Commodification of Justice.
Intrinsic to access to justice is the concept of respect for the dignity of every human, and their inherent worth.[24] Since this concept is absolute, it cannot be diminished by socio-economic impoverishment.[25]
Certain issues crop up when analysing these concepts together. Charging court fees for suits to merely be instituted in the first place serves as an obstacle to access to justice for the poorest and the most marginalized litigants.[26] Ceteris paribus, it denies them ‘their day in the Court’ by making it relatively more difficult for them to institute a suit. By doing so, they are placed at a lower pedestal when compared to people who can afford the court fees. Justice to a poor litigant becomes more elusive, and consequently, the justice administration system tends to be kind to only those who can afford its kindness.
As is the nature of such a system, justice would be a commodity.[27] This is also characteristic of a laissez-faire system of justice administration.[28] When treated like a commodity which is in demand by the same parties with opposing interests, the laissez-faire system envisions justice as a commodity which can be sold to the party which can afford it.[29]
In such a system, the poor are systemically subjugated. This is because they live in a separate reality where their economic poverty is delineated and perpetuated in social, political, and structural terms due to their exclusion from law and access to justice.[30] Such a system inflicts institutionalised violence on the poor by setting a vicious poverty trap.[31] This happens when justice is the solution to violations of rights, particularly those which facilitate livelihoods, and this justice is constructed to be inaccessible to them. Hence, poverty becomes the reason for, and the creation of, lack of access to justice.
Yet another problem with treating justice like a commodity is that court fees are applicable for each relief in the plaint.[32] This means that a poor litigant who relies on more reliefs under the Act pays more in Court fees. To those who find the cost prohibitive, the immediate solution would be to not seek a relief. The poorest litigants may end up forsaking reliefs because they become too expensive to be pursued in the present justice system. This effectively amounts to abandoning justiciable claims solely because of cost considerations.
The counter-arguments revolve around public policy considerations, with the baseline assumption that people are actively inclined to litigate.[33] Minimising litigation in the judicial system is in the interests of the State as it involves heavy socio-economic costs for the nation. It is assumed that some litigation is plainly ‘vexatious’ or ‘frivolous’, and hence not worth the time and effort of the justice system.[34] Hence, court fees are instituted in order to stimulate a repressive effect on litigious tendencies.[35] This policy of pre-emptive deterrence worked to exclude its target, but the casualty was also the class-sensitive concept of access to justice. Access to justice is sensitive to class because it has a disproportionately adverse effect on underprivileged and marginalized classes, particularly when it is denied.[36] This action could be justified on the basis that genuine litigants who were poor would have access to statutory provisions which would allow them a shot at justice.
2. Lack of Viable Alternatives.
The statutory provisions in place include mainly legal aid and waiver of Court fees.[37] This argument tends to ignore the socio-economic realities in India. In a country with stark inequalities, there is hardly any legal literacy among the poor. More often than not, they lack knowledge even of the fact that a right exists, and that it has been violated.[38] In such a scenario, operating under the presumption that the poor will be aware of the alternative legal recourse in case they cannot pay court fees is an unsound approach. As for legal aid, apathy by states is well documented.[39] Even when it is provided, it does not necessarily produce equal legal representation because lawyers who appear for poor litigants are often ill-equipped[40] and not adequately motivated.[41] The primary law on legal aid is the Legal Services Authority Act, 1987, whose provisions have been inadequately enforced in India.[42] Even the provisions that exist, and which are supplemented with various rules[43] and regulations,[44] do not go far enough to accommodate every person who finds the costs unaffordable.[45]
With regards to waiver of Court fees, the Code of Civil Procedure, 1908, provides for a litany of procedures to be followed and conditions to be satisfied[46] before a person is declared as an indigent person.[47] This logically would only serve to drive away the indigent person by perpetuating stereotypes about the delays and bureaucratic processes involved in the judicial system. Practically too, it hurts the indigent person by increasing costs involved in merely being declared and verified as an indigent person as it takes away from time devoted to earning a livelihood. This is significant as the incentive to seek justice from State-sanctioned justice systems decreases.
3. Sovereign Function.
A critical look at the legitimacy of court fees reveals that arguments in favour are based on shaky theoretical foundations, and display a lack of understanding and respect for the historical process of increasing access to justice. The renowned philosopher Immanuel Kant mentions that it is a part of the social contract of the State to provide for the poor.[48] When extended to account for modern socio-economic realities, access to justice should be included as a part of the social contract as it directly impacts poverty. Treating the adjudicatory system as a service fundamentally takes away from the idea that providing access to justice is the sovereign duty or obligation of the State.[49] This idea has also developed with the increasing recognition of the State implementing more “welfare-state” reforms.[50] It then follows that it is a sovereign function to provide for an effective mechanism for citizens to enforce and protect their rights.[51] Otherwise, the purpose of having such rights in the first place would be rendered nugatory.[52].
Since expenses associated with this sovereign duty have to be funded, the State should collect revenue in a manner that is equitable. Justice administration should be sufficiently funded but not at the cost of laying access to justice at the sacrificial altar.
Concluding Remarks
In its 14th Report, the Law Commission of India, chaired by renowned jurist M. C Setalvad, opposed, in principle, rejected the concept of court fee.[53] In its 128th Report, it welcomed the idea of a complete repeal of court fees, and termed it “…incompatible with a society governed by rule of law”.[54] The State may allocate resources from its national budget towards sufficiently funding justice administration while raising an equivalent amount through other sources which do not detrimentally impact access to justice. The Law Commission of India, in its 189th Report, noted that the trend is that national budgets almost wholly fund judicial administration.[55] If the arguments presented are given their due regard, judicial administration would not be funded by imposing court fees.
The persistence of court fees ensures that the justice delivery mechanisms in India resemble laissez-faire systems. In light of the problems arising from such systems, it is time to do away with court fees, and focus on substantively increasing access to justice in India.
The author, Saiesh Kamath, is currently a law student at the National University of Juridical Sciences (NUJS), Kolkata.
The author’s acknowledgements–
The author remains grateful to Mahesh Menon, Assistant Professor at Daksha Fellowship, for his insightful thoughts on an earlier draft. The author extends his sincere thanks to Adrija Ghosh and to the anonymous reviewers for their incisive comments on the topic.
[1] Ayesha Kadwani Dias & Gita Honwana Welch, The International Context of Access to Justice in Justice for the Poor: Perspectives on Accelerating Access 1 (Ayesha Kadwani Dias & Gita Honwana Welch eds., 2009).
[2] Ayesha Kadwani Dias, International Law and Sources of Access to Justice in Justice for the Poor: Perspectives on Accelerating Access 5 (Ayesha Kadwani Dias & Gita Honwana Welch eds., 2009).
[3] Upendra Baxi, The Renascent Access Notions: Globalisation and Access to Justice in Justice for the Poor: Perspectives on Accelerating Access 86 (Ayesha Kadwani Dias & Gita Honwana Welch eds., 2009).
[4] Supra note 1 at 2.
[5] Ibid.
[6] Supra note 3 at 87, fn 36.
[7] Supra note 1.
[8] Rojer Mathew v. South Indian Bank Ltd., 2019 SCC OnLine SC 1456, ¶386 at 240.
[9] Anita Kushwaha v. Pushap Sudan, (2016) 8 SCC 503, ¶42 at 532.
[10] Anita Kushwaha v. Pushap Sudan, (2016) 8 SCC 503, ¶29 at 527.
[11] Bryan G. Garth & Mauro Cappelletti, Access to Justice: The Newest Wave in the Worldwide Movement to Make Rights Effective, 27 Buffalo Law Review 183-185 (1978).
[12] Anita Kushwaha v. Pushap Sudan, (2016) 8 SCC 503, ¶33 at 529; See Bryan G. Garth & Mauro Cappelletti, Access to Justice: The Newest Wave in the Worldwide Movement to Make Rights Effective, 27 Buffalo Law Review (1978).
[13] World Justice Project, Rule of Law Index: 2020, 87 (2020).
[14] Ibid.
[15] See Suri Ratnapala, Jurisprudence 126 (2d ed. 2013).
[16] Supra note 11 at 183.
[17] Ibid.
[18] Ibid at 184.
[19] Justice for the Poor: Perspectives on Accelerating Access xvi (Ayesha Kadwani Dias & Gita Honwana Welch eds., 2009).
[20] Introduction, The Court-Fees Act, 1870 (7 of 1870).
[21] Chief Inspector of Stamps, Uttar Pradesh v. Mahant Lakshmi Narain, 1969 SCC OnLine All 225, ¶24.
[22] See supra note 11 at 186.
[23] Code of Civil Procedure, 1908, Order 7, Rule 11; Municipality v. Gas Authority of India Ltd. and Ors., AIR 2006 MP 17, ¶10.
[24] Supra note 19 at xvii.
[25] Ibid.
[26] See supra note 11 at 190.
[27] Ibid.
[28] Supra note 11 at 183.
[29] Ibid.
[30] Ibid.
[31] OECD, Access to Justice, available at https://www.oecd.org/gov/access-to-justice.htm (last visited on January 13, 2021); OECD, Open Society Foundations, Leveraging the SDGs for Inclusive Growth: Delivering Access to Justice for All, Issues Paper, 6 (2016).
[32] Dharamraj Singh v. Vaidya Nath Prasad Khare, AIR 2002 MP 194, ¶3; See The Court-Fees Act, 1870 (7 of 1870), §7.
[33] See Secretary to Government of Madras and Another v. P. R. Sriramulu and Another, (1996) 1 SCC 345, ¶6.
[34] Supra note 21.
[35] Ibid.
[36] See Stephen Wexler, Practicing Law for Poor People, 79 Yale Law Journal 1050 (1970).
[37] See generally Code of Civil Procedure, 1908, Order XXXIII; The Legal Services Authority Act, 1987.
[38] Supra note 2 at 7.
[39] See Tata Trusts, India Justice Report: Ranking States on Police, Judiciary, Prisons and Legal Aid (2019).
[40] Ibid at 81.
[41] Supra note 19 at xx; Aarefa Johari, How well do India’s free legal aid services work? Not nearly well enough, Scroll (May 19th, 2018) available at https://scroll.in/article/877225/how-well-do-indias-free-legal-aid-services-work-not-nearly-well-enough (last visited on December 17th, 2020).
[42] Supra note 39.
[43] See generally The National Legal Service Authority Rules, 1995; The Supreme Court Legal Services Committee Rules, 2000; The Permanent Lok Adalat (Other Terms and Conditions of Appointment of Chairman and Other Persons) Rules, 2003.
[44] See generally National Legal Services Authority (Lok Adalat) Regulations, 2009; National Legal Services Authority (Free and Competent Legal Services) Regulations, 2010; National Legal Services Authority (Legal Services Clinics) Regulations, 2011.
[45] See Legal Services Authority Act, 1987, §12(h). (For example, setting annual income at a mere nine-thousand rupees or lower to qualify for legal aid for a case before the relevant High Court)
[46] See Code of Civil Procedure, 1908, Order XXXIII Rules 2 – 7.
[47] See Code of Civil Procedure, 1908, Order XXXIII.
[48] Pieter Pekelharing, Global Justice and the State in Doing Good or Doing Better: Development Policies in a Globalising World, 347 (Monique Kremer, Peter van Lieshout & Robert Went eds., 2009).
[49] Emer De Vettel, The Law of Nations or The Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns, vol. 3, 68 (Charles G. Fenwick ed, Carnegie Institution, 1916); Andrew Higgins, Legal Aid and Access to Justice in England and India, 26 National Law School of India Review 13, 23 (2014).
[50] Supra note 11.
[51] Vettel supra note 49.
[52] Ibid.
[53] Law Commission of India, Reform of Judicial Administration, Report No.14, Vol I 489, 490, 494 (1958).
[54] Law Commission of India, Cost of Litigation, Report No.128, ¶4.6 at 75 (1988).
[55] Law Commission of India, Revision of Court Fees Structure, Report No.189 3 (2004).
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