es of services cannot be applied towards objects of general public utility as part of general revenues the converse is not valid
General Public revenues can with justification be utilised to meet wholly or in a substantial part the expenses on the administration of civil justice
194G H 14 The prescription of such high rates of court fees even in small claims as also without an upper limit in larger claims is perilously close to arbitrariness an inconstitutionality
194E 15 Though the Court has abstained from striking down the legislation yet it appears to the Court that immediate steps are called for and are imperative to rationalise the levies
195C PG NO 161  CIVIL APPELLATE JURISDICTION Special Leave Petition Civil Nos
2604 06 of 1988 etc
From the Judgment and Order dated 6111987 of the Karnataka High Court in WP Nos
3138 of 1987 12784 and 18359 of 1986
FS Nariman BRL Iyengar LN Sihna KK Venugopal Soli J Sorabjee Dr YS Chitale UR Lalit MS Nesargi SK Dholakia A5
Bobde Adv
 Aruneshwar Gupta BP Gupta Sudhir Gupta Inderbit Singh LR Singh Rakesh Khanna RP Singh PH Parekh Sanjay Bhartary SS Javali R Ramachandran PG Gokhale Raja Venkatappa Naik NN Sharma P Mahale SK Kulkarni DL N Rao Surya Kant EC Vidvasagar RB Mehrotra DNN Reddy N Nettar Kailash Vasdev GL Rawal SC Birla Miss CK Sucharita Mohan Katarki Mrs Kiran Suri KMK Nair SN Bhat RP Wadhwani and AS Bhasme for the Petitioners
Kuldip Singh Additional Solicitor General KN Bhat DR Dhanuka Anil Mehta PR Ramasesh Badri Das Sharma K R Dhanuka RC Misra and Dr Meera Agarwal for the Respondents
The Judgment of the Court was delivered by VENKATACHALIAH J
The point in these appeals is the recurring and vexed theme of the policy and legality of the levy of Court fees ad valorem on the value or amount of the subject matter of suits and appeals without the prescription of any upper limit under the provisions of the Karnataka Court Fees and Suits Valuation Act 1958 Karnataka Act  for short
The Rajasthan Court Fees and Suits Valuation Act 1961 Act 23 of 19f Rajasthan Act  for short and the Bombay Court Fees Act 1959 Bombay Act  for short
So far as the Bombay Act  is concerned the point raised in the concerned appeals is a limited one confined to the question of the validity of Section 291 read with entry 10 of the First Schedule to the Bombay Act  which without reference to the upper limit of Court Fee of Rs15000 prescribed for all other suits and proceedings requires payment of ad valorem Court fee on proceedings for grants of probate and letters of administration
One of the grounds of challenge so far as this provision in the Bombay Act  is concerned is the constitutional impermissibility of an unlimited exaction by way of court fee which is common to other appeals as well
The other contention against the PG NO 162 validity of Section 291 read with Entry 10 of the First Schedule to the Bombay Act  is based on Article 14 of the Constitution on the ground of discrimination as between the proceedings for grant of probate and Letters of Administration on the one hand and all other suits and proceedings respecting which an upper limit of Rs15000 is fixed under the statute on the other
The present batch of appeals and Special Leave Petitions comprise of a large number of cases arising under the said three Statutes
We may however refer to the facts of some of the cases which could be taken to be typical and representative of all other cases of each group
Special Leave Petition 13344 of 1988 typifies and is representative of he appeals and Special Leave Petitions at arise out of the Rajasthan Court Fees and Suits Valuation Act 1961
The petition arises out of and is directed against the common order dated 16th October 1987 of the Division Bench of the Rajasthan High Court in Division1 Bench Civil Writ Petition No 474 of 1984 and a large number of writ petitions involving the same question
In Writ Petition No 474 of 1984 the present appellant The State Bank of India challenged before the High Court the Constitutional validity of the provisions of Section 20 read with Article 1 Schedule 1 of the Rajasthan Act which prescribed and authorised the levy of court fees on plaints or written statements pleading a set off or counter claim or memoranda of appeals presented to Courts an uniform ad valorem impost of Rs5 for every hundred Rupees or part thereof on the amount or value of the subject matter in excess of Rs5000
On the first slab of Rs5000 however certain rates are also prescribed
We may
briefly
trace the course of development of the law as to Court fee in Rajasthan
The Rajasthan Ordinance 9 of 1950 adapted and extended to the territories of Rajasthan with effect 131950 the Court Fees Act 1870 Central Act 1870
The provisions of the Central Act as adapted and extended to Rajasthan were amendment from time to time till 1111961 when the present Rajasthan Act  was enacted and promulgated
Prior to 1111961 at the law the stood
the levy of court fee was subject to the maximum of Rs7500
This ceiling was done away with under the present Rajasthan Act and Court fee ad valorem at 5 without any upper limit was imposed under the impugned provisions
On 2541984 the appellant bank instituted
in the Court PG NO 163 of District Judge Jaipur City a suit for recovery of a sum of Rs50475826 from the defendant in the suit viz The Jaipur Spinning and Weaving Mills Ltd The Court Fee payable on the said plaint under Section 20 read with Article 1 of the Schedule 1 of the Rajasthan Act  was stated to be Rs2523860
Incidently it was pointed out by Shri FS Nariman learned Senior Advocate for the appellant that the court fee payable on this plaint alone would amount approximately to 17th of the total estimated collection of court fee for the year 1983 84 which was estimated at Rs17641 lakhs in the State
Special Leave Petitions 832 of 1988 and 833 of 1988 which are representative of the Karnataka cases arise out of and are directed against the common order dated 611988 of the Division Bench of the Karnataka High Court upholding the validity of the corresponding provisions of the Karnataka Court Fees and Suit Valuation Act 1958 Karnataka Act  for short which similarly impose an ad valorem court fee on the plaints written statements pleading set of or counter claims or memoranda of appeals presented to any court an at valorem court fee at the uniform rate of Re1 for every Rs10 of the amount
or value of the subject matter in dispute without prescribing any upper limit
The Bank of Baroda the petitioner in the Special Leave Petition 832 of 1988 questions the correctness of the view taken by the Karnataka High Court in the large batch of cases disposed of by it upholding the constitutionality of the provisions in the Karnataka Act  
Appellant bank had brought in one of the civil courts in Karnataka a suit for recovery of Rs169781157 from the defendants therein and was called upon to pay a court fees of Rs169792 on the plaint
The provisions of section 20 read with Article 1 of Schedule 1 of the Karnataka Act  are in pari materia with Section 20 read with Article 1 Schedule 1 of the Rajasthan Act  except for the rate of fee which is substantially higher under the Karnataka Act 
The questions that arise in the appeals and Special Leave Petitions from Karnataka and Rajasthan are substantially similar
In Civil Appeal No 1511 of 1988 the State of Maharashtra has come up in appeal against the Judgment dated 121988 of the Division Bench of the Bombay High Court affirming the order dated 20111987 of the Learned Single Judge striking down the provisions of Section 291 read with entry 10 of Schedule 1 of the Bombay Act  in so far as PG NO 164 they purport to prescribe an ad valorem court fee without any upper limit on grants of probate letters of Administration etc
 while in respect of all other suits appeals and proceedings an upper limit of court fee of Rs 15000 is prescribed under the Bombay Act 
The Bombay High Court has by its judgment now under appeal held this prescription of ad valorem court fee without any upper limit on this class of proceedings alone constitutionally impermissible in that it seeks to single out this class of litigants to share a disproportionately higher share of the burden of fees while all other litigants whatever the value of their claim or complexity of the question raised in their cases be are not required to pay beyond Rs15000 which is fixed as the upper limit in all other cases
In WP No 110586 before the High Court of Bombay from which CA No 151188 now before us arises Mrs Jyoti Nikul Jariwala and Jaiprakash Mungaturam Bairajra Respondents herein in their capacity as Executrix and Executor respectively as also the Trustees under the Last Will and Testament dated 531985 said to have been executed by a certain Harihar Jethalal Jariwala alias Sanjiv Kumar had sought probate of the said will
They challenged in the writ petition before the High Court the order dated 2371986 of the Prothonotary and Senior Master of the High Court of Bombay made in the said probate proceedings requiring from the said Executors a probate court fee of Rs615 81450 as a condition for the grant of the probate
The said Executors and Trustees challenged the legality and validity of this Memo and also the relevant provisions of the Bombay Act  pursuant to and under the authority of which the said order came to be made
Learned Single Judge of the High Court struck down the impugned provisions and the Division Bench has upheld the decision of the Learned Single Judge
We have heard Sri l N Sinha
Sri FS Nariman Sri KK Venugopal Sri Shanti Bhushan Sri BRL Iyengar
learned Senior Advocates for the appellants in Karnataka and Rajasthan batch of cases and Sri Kuldip Singh Additional Solicitor General and Sri Badridas Sharma Senior Advocate for the State of Karnataka and Rajasthan respectively
Sri Bobde learned Advocate General Maharashtra and Sri SK Dholakia Senior Advocate appeared in support of the appeals of the State of Maharashtra
PG NO 165 7
Though a number of contentions covering a wide field appears to have been raised and argued before the High Courts the submissions of Learned Counsel before us were however less expensive and centred around what was stated to belong to certain basic values and ideals of administration of justice in a Welfare State and to the importance of access to justice and what in the context of the concept of a fee  is likely to happen to the concept if an ad valorem exaction without any upper limit whatsoever is pushed to a point where the correlationship between the levy and the service very nearly breaks down
It ceases it is said to be a service and becomes a disservice
Emphasis was also placed on the basic obligations of the State to administer justice within its territories and on the Directive Principles of State Policy in Article 39A which enjoins the State to ensure that opportunities of securing justice are not denied to any citizen by reason of economic or other disabilities
It was contended that in a system of Administration of Justice which was already encumbered by heavy expenses and long delays the imposition of court fees at nearly 10 of the value of the subject matter in each of the courts through which the case sojourns before it reaches a finality would seriously detract from fairness and justness of the system
The levy ad valorem irrespective of the nature and quality of the adjudicative process the case attracts and without reference to the demands that it makes on the judicial time would be it is urged demonstrably unfair and it would be legitimate to acknowledge that somewhere in the trail of this unlimited levy the sustaining correlation between the levy and the service rendered is bound to snap
It was urged that the exaction of ad valorem fee uniformally at a certain percentage of the subject matter without an upper limit or without the rates tapering down after a certain stage onwards would negate the concept of a fee and par take of the character of a tax outside the boundaries of the State s power
It is true that the twin evils that be devil the legal system and the administration of justice are the laws  delays and expenses of litigation which have become almost proverbial
Court tee should not become another stifling factor aggravating an already explosive situation
Constitutional ethos and the new social and economic order grimly struggling to be born lay great store by the peaceful social or economic change to be achieved through the processes of law
If social and economic change is of high constitutional priority then their effectuation and realisation which are directly proportional to the availability and efficacy of expeditious and unexpensive legal remedies must also as a logical corollory receive PG NO 166 the same emphasis in priorities The public importance of the question and the public interest the policy of court fee evokes are reflected in the trenchant humour of AP Herbert s More Uncommon Law from the words of the Judge in the fictional Hogby vs Hogby That if the Crown must charge for justice at least the fee should be like the fee for postage that is to say it should be the same however long the journey may be
For it is no fault of one litigant that his plea to the King s judges raises questions more difficult to determine than another s and will require a longer hearing in court
He is asking for justice not renting house property
 There is also in the following exchanges between the Attorney General and the Judge the echo of the argument that State whose primary duty is to administer justice should do so out of public revenues and not put justice up for sale The Attorney General As to that milord may I suggest one possible line of thought The Crown in this connection means the whole body of tax payers
Would it be fair and equitable if the general tax payer had to provide all the facilities of the courts for the benefit of the litigant The Judge Why not Everybody pays for the police but some people use them more than other
Nobody complains
You don t have to pay a special fee every time you have a burglary or ask a policeman the way
I don t follow you Sir Anthony
I will go further
I hold that the Crown not merely ought not but is unable to act in this way by reason of the passage in the Great Charter which I have quoted
The Rules of Court then which purpose to impose these charges are ultra vires unconstitutional and of no effect and Mr Hogby may continue to decline to pay them  9
The fortieth clause of the Great Charter of declared that Justice shall not be sold denied or delayed Nulli Vendemus nulli negabimus aut differemus rectum aut justiclam
 What was implicit in the need for this promise was that royal justice was otherwise popular but the PG NO 167 complaint was that it was too dear and it was slow in coming
The subsequent course of history of the administration of justice in England shows that the Magna Carta did not wholly stop the evils of delays in and expensiveness of Royal Justice but it did after all do something perhaps something substantial to cheapen justice and stop the abuses which were rampant in King John s Reign See History of English law 57 58
Dr RM Jackson Machinery of Justice in England Fifth Ed 321 points out the dependence of Royal Justice in England in part atleast on the profits of its administration earned In the past the growth of royal justice was partly due to the profits that accrued from exercising jurisdiction
The early itinerant justices were more concerned with safeguarding the King s fiscal rights than with the trial of ordinary actions
A law court was expected to pay for itself and show profit for the king
It is some time since justice has been a substantial source of income but the old survives in the idea that the courts ought not to be run at a loss
Emphasis supplied The court fee as a limitation on access to Justice is inextricably inter twined with a highly emotional and even evocative subject stimulating visions of a social order in which justice will be brought within the reach of all citizens of all ranks in society
both those blessed with affluence and those depressed with their poverty
 It is it is said like a clarion call to make the administration of civil justice available to all on the basis of equality equity and fairness with its corollary that no one should suffer injustice be reason of his not affording or is deterred from access to justice
The need for access to justice recognises the primordeal need to maintain order in society disincentive of inclinations towards extra judicial and violent means of settling disputes
On this a learned authority access to Justice by Cappellbtti
Vol  1 Book 1419 says The need for access to justice may be said to be two fold first we must ensure that the rights of citizens should be recognised and made effective for otherwise they not be real hut merely illusory and secondly we must enable legal disputes conflicts and complaints which inevitably arise in society to be resolved in an orderly way according to the justice of the case so as to promote
PG NO 168 harmony and peace in society lest they foster and breed discontent and disturbance
In truth the phrase itself access to justice is a profound and powerful expression of a social need which is imperative urgent and more widespread than is generally acknowledged
The stipulation of court fee is undoubtedly a deterrent to free access to justice but one of the earlier avowed objects of court fee was stated to be as was done in the preamble of the Bengal Regulation which in 1795 imposed high court fees discouragement of litigation particularly the speculative and the frivolous variety
Lord Macaulay called that Preamble the most eminently absurd Preamble that was ever drawn
The view of Macaulay The Crisis of the Indian Legal System   By Upendra Baxi 54 on the subject are worth recalling If what the courts administer be justice is justice a thing which the Government ought to grudge to the people vexatious suits should be instituted
But it is an evil for which the Government has only itself and its agents to blame and for which it has the power of proving a most efficient remedy
The real way to prevent unjust suits is to take care that there shall be just decision
No man goes to law except in the hope of succeeding
No man hopes to succeed in a had cause unless he has reason to believe that it will be determined according to bad laws or by bad judges
Dishonest suits will never he common unless the public entertains an unfavourable opinion of the administration of justice
And the public will never long entertain such an opinion without good reason  The imposition of court fees neither makes the pleadings clearer nor the law plainer nor the corrupt judge purer nor the stupid judge wiser
It will no doubt drive away the honest plaintiffs who cannot pay the fee
But it will also drive away dishonest plaintiffs who are in the same situation
Emphasis supplied
The Krishna Iyer Committee on Legal aid also said Something must be done we venture to state to arrest the escalating vice of burdensome scales of court fee
That the State should not sell justice is an obvious proposition PG NO 169 but the high rate of court fee now levied leaves no valid alibi is also obvious
The Fourteenth Report of the Law Commission the practice of 2 per cent in the socialist countries and the small standard filing fee prevalent in many Western Countries make the Indian position indefensible and perilously near unconstitutional
If the legal system is not to be undemocratically expensive there is a strong case for reducing court fees and instituting suitors fund to meet the cost directed to be paid by a party because he is the loser but in the circumstances cannot bear the burden 
See P 35 11
The proverbial costs of litigation has its own dimensions of unpredictability
Even as the outcome of a litigation is said to depend on the glorious uncertainties of the Law the size of the bill of cost a litigant has to foot is not so gloriously foreseeable
The Evershed Committee Report said It is notoriously impossible to count the costs of litigation beforehand
It is difficult enough for either party to forecast what his own costs are likely to be since much depends on the manner in which the other side conducts the case
It is utterly impossible to forecast what the other side s cost will be and this means that no litigant can have the least idea of what he will have to pay if he loses the case
 Small claims and the small litigants are at a special disadvantage in the matter of costs
The expenses of litigation very nearly consume the claim itself
This imparts to the policy formulation behind the levy of court tee the imperative of having lower fees for lesser claims
This is an analysis of costs in small claims Access to Justice Vol
Book 1 13
Claims involving relatively small sums of money suffer most from the barrier of cost
If the dispute is to be resolved by formal court processes the costs may exceed the amount in controversy or if not may still eat away so much of the claim as to make litigation futile
The data assembled for the Florence Project show clearly that the ratio of costs to amount in controversy steadily increases as the financial value of the claim goes down
In Germany for example the cost of litigating a claim for about US PG NO 170 100 in the regular court system is estimated to be roughly US 150 even though only a court of first instance is involved while the cost for a US 5000 claim involving two instances would be about US 4200 still very high but a substantially smaller proportion of the claim s value
Examples need not be multiplied in this area clearly small claims problems require special attention if access is to be obtained
Emphasis supplied
Conversely those who are endowed with considerable financial resources that can be utilised for litigation have obvious advantages in pursuing or defending claims by or against them
It is said Access to Justice
Vol 1
Book 1 15
Persons or organisations possessing  or relatively considerable financial resources than can be utilized for litigation have obvious advantages in pursuing or defending claims
In the first place they can afford to litigate
They are
in addition able to withstand the delays of litigation
Each of these capabilities if in the hands of only one party can be a powerful weapon the threat of litigation becomes both credible and effective
Similarly one of two parties to a dispute ma be able to outspend he other and as a result present his arguments more effectively
Passive decision makes whatever their other more admirable characteristics clearly exacerbate this problem by relying on the parties for investigating and presenting evidence and for developing and arguing the case  Emphasis supplied
12 These are the realities in the back ground of which the impact of court fees is to he considered
Indeed all civilised Governments recognise the need for access to justice being free
Whether the whole of the expenses of administration of civil justice also in addition to those of criminal justice should be free and not entirely by public revenue or whether the litigants should contribute and it so
to what extent are matters of policy
These ideals are again to be balanced against the stark realities of constraints of finance before any judicial criticism of the policy acknowledgment should be made of the Government s power to raise the resources for providing the services from those who use and benefit from the services
The idea that there should be uniform fixed fee for all cases instead of PG NO 171 the ad valorem system has its own nettling problems and bristles with anomolies
How far these policy considerations have an adjudicative disposition and how far courts can mould and give direction to the policy is much debated
The Directive Principles in Article 39A are no doubt fundamental in the governance of the country though not enforceable in courts of law
The following observations of Chinappa Reddy J in UBSE Board vs Hari Shanker AIR 1979 SC 69 recognise the limitations of courts  the principles are nevertheless fundamental in the governance of the country  and it shall be the duty of the state to apply these principles in making laws 
Addressed to courts what the injunction means is that while courts are not free to direct the making of legislation courts are bound to evolve affirm and adopt principles of interpretation which will further and not hinder the goals set out in the Directive Principles of State Policy Emphasis supplied It is in the light of these conflicting claims and interests that the propositions in the case would require to be resolved
On the contentions urged at the hearing the following points fall for determination the first three in Karnataka and Rajasthan cases and the last in the appeals arising under the Bombay Act 
 a Whether the levies of court fee under the Karnataka Act and the Rajasthan Act do not satisfy the requirements of the concept of a fee  but par take the character of a tax  in as much as that the correlationship between the fee and the value of the services by way of quid pro quo is not established
b Whether even if the totality of the expenses on the administration of civil justice and the totality of the court fee collected show a broad correlation the levy of court fees on ad valorem basis without an Upper limit renders the impost a tax in as much as having regard to the very nature of the service which consists of adjudication of disputes a stage is inevitably reached after and above which an ad valorem levy the proportionate increase in the PG NO 172 value of the subject matter ceases to be a fee  and becomes a tax 
c Whether at all events the distribution of the burden of the fees amongst those on whom the burden falls as the ad valorem principles dependent merely on the amount or value of the claim in the case irrespective of the nature quality and extent of adjudicative services is arbitrary and violative of Article 14 of the Constitution
d Whether in so far as the provisions of section 29i read with Entry 20 Schedule I of the Bombay Act  are concerned singling out of a class of litigation viz applications for grant of probate and letters of administration for levy of ad valorem court fee without the benefit of the upper limit of Rs 15000 prescribed in respect of all other suits and proceedings is as declared by the High Court exposes that class of litigants to a hostile discrimination and is violative of Article 14 of the Constitution
Re Contention a The concept of a fee  as distinct from that of a tax  in the Constitutional scheme has been considered in a series of pronouncements starting from The Commissioner Hindu Religious Endowments Madras vs Lakshmindra Thirtha Swamiar of Sri Shirur Mutt  1005 upto Om Prakash Agarwal vs Guni Ray  Of Fees and Taxes  a learned author First Principles of Public Finance by De Marco 78 says Levies are divided into two large categories fees and taxes
To this division corresponds the differentiation of public services as special or general
A Fee says another author Public Finance Third Ed by Buehler 519 is a charge for a particular service of special benefit to individuals or to a class and of general benefit to the public or it is a charge to meet the cost of a regulation PG NO 173 that primarily benefits society Fees must be paid to secure the enjoyment of a particular government service such as the provisions for patents copyrights or the registration of mortgages and the services of a court or a public official
Public Finance Third Edn p 519
Another review of all the earlier pronouncements of this court on the conceptual distinction between a fee  and a tax  and the various contexts in which the distinction becomes telling is an idle parade of familiar learning and unnecessary
What emerges from these pronouncements is that if the essential character of the impost is that some special service is intended or envisaged as a quid pro quo to the class of citizens which is intended to be benefitted by the service and there is a broad and general correlation between the amount so raised and the expenses involved in providing the services the impost would par take the character of a fee  notwithstanding the circumstance that the identity of the amount so raised is not always kept distinguished but is merged in the general revenues of the State and notwithstanding the fact that such special services for which the amount is raised are as they very often do incidentally or indirectly benefit the general public also
The test is the primary object of the levy and the essential purpose it is intended to achieve
The correlationship between the amount raised through the fee  and the expenses involved in providing the services need not be examined with a view to ascertaining any accurate arithmetical equivalence or precision in the correlation but it would be sufficient that there is a broad and general correlation
But a fee loses its character as such if it is intended to and does go to enrich the general revenues of the State to be applied for general purposes of Government
Conversely from this latter element stems the sequential proposition that the object to be served by raising the fee should not include objects which are otherwise within the ambit of general governmental obligations and activities
The concept of fee is not satisfied merely by showing that the class of persons from whom the fee is collected also derives some benefit from those activities of Government
The benefit the class of payers of fee obtain in such a case is clearly not a benefit intended as special service to it but derived by it as part of the general public
Nor does the concept of a fee and this is important require for its sustenance the requirement that every member of the class on whom the fee is imposed must PG NO 174 receive a corresponding benefit or degree of benefit commensurate with or proportionate to the payment that he individually makes
It would be sufficient if the benefit of the special services is available to and received by the class as such
It is not necessary that every individual composing the class should be shown to have derived any direct benefit
A fee has also the element of a compulsory exaction which it shares in common with the concept of a tax as the class of persons intended to be benefitted by the special services has no volition to decline the benefit of the services
A fee is therefore a charge for the special services rendered to a class of citizens by Government or Government at agencies and is generally based on the expenses incurred in rendering the services
The extent and degree of the correlation required to support the fees has also been considered in a number of pronouncements of this court
It has been held that it is for the governmental agencies imposing the fee to justify its impost and its quantum as a return for some special services
In Municipal Corporation of Delhi and Others vs Mohd Yasin this court relied on HH Sudhundra Thirtha Swamiar vs Commissioner for Hindu Religious and Charitable endowments 1963 Suppl
2 SCR 302 which held If with a view to provide a specific service levy is imposed by law and expenses for maintaining the service are met out of the amounts collected there being a reasonable relation between the levy and the expenses incurred for rendering services the levy would be in the nature of a fee and not in the nature of a tax   Emphasis supplied In Sreenivasa General Traders and others etc
vs Andhra Pradesh and Others etc this court observed Correlationship between the levy and the services renderedexpected is one of general character and not of mathematical exactitude
All that is necessary is that there should be a reasonable relationship between the levy of the fee and the services rendered
 A fee which at the inception is supportable as one might shed its complexion as a fee and assume that of a tax by reason of the accumulation of surpluses or the happening of PG NO 175 events which tend to affect and unsettle the requisite degree of correlation
In State of Maharashtra  Ors
vs The Salvation Army Western India Territory this court generally indicated what broadly is the requisite degree of correlationship  This court has expressly stated in the Delhi Cloth and General Mills case supra that services worth 61 per cent of contribution would be sufficient quid pro quo to make a levy a fee
So when we find that in this case the organisation has been rendering services worth 62 per cent of the contribution it cannot per se he said that there is no correlation between the fee levied and the services rendered Emphasis supplied In Kewal Krishan Puri and another vs State of Punjab and other this court said That the element of quid pro quo may not be possible or even necessary to be established with arithmetical exactitude but even broadly and reasonably it must be established by the authorities who charge the fees that the amount is being spent for rendering services to those on whom falls the burden of the fee
At least a good and substantial portion of the amount collected on account of fees may be in the neighbourhood of two thirds or three fourths must be Shown with reasonable certainly as being spent for rendering services of the kind mentioned above Emphasis supplied In regard to the nature of court fee we have the pronouncement of this court in Secretary Government of Madras Home Department and Another vs Zenith Lamp  Electrical Ltd 1973 2 SCR p 973 1981 82
This court after referring to the legislative entries pertaining to the legislative fields distributed over the three lists of the Seventh Schedule to the Constitution repelled the contention that fees taken in court  occurring in Entry 3 of List II are really in the nature of a tax  or at any rate constitute an impost sui generis
This Court held PG NO 176 It seems to us that the separate mention of fees taken in Court in the Entries referred to above has no other significance than that they logically come under entries dealing with administration of Justice and courts
The draftsman has followed the scheme designed in the Court Fees Act 1870 of dealing with fees taken in court at one place  It seems plain that fees taken in court are not taxes for if it were so the word taxes  would have been used or Some other indication given  It follows that fees taken in court cannot be equated to Taxes 
If this is so is there any essential difference between fees taken in court and other fees   But one thing the Legislature is not competent to do and that is to make litigants contribute to the increase of general public revenue
In other words it cannot tax litigation and make litigations pay say for road building or education or other beneficial schemes that a State may have
There must be a broad correlationship with the fees collected that the cost of administration of civil justice
 In the present cases the concerned State Governments have filed in the proceedings before the High Court statements of the receipts and expenses on the administration of Justice in their effort to establish the requisite correlation
It is not necessary to go in any particular detail into the break up of these figures
Both High Courts after an examination of the statistics felt no hesitation in upholding the correlation
We did not also understand the learned counsel for the appellants as questioning the correctness of the figures and the inference as to correlation suggested thereby
Learned counsel for the respective States submitted that if the outlays on capital expenditure are also taken into account there will be no shadow of doubt that the expenditure would be further higher than the fee receipts
So far as the Karnataka State is concerned similar exercise was done in an earlier case also in Ram Bhadur Thakur  Co and another vs State of Karnataka AIR 1979 SC 119
In the Karnataka Cases the relevant figures for the 5 years from 1980 81 to 1984 85 respectively are the figures in brackets indicate expenditure 1980 81 Rs 52208513 Rs68033119 1981 82 Rs66910019 PG NO 177 Rs79776852 1982 83 Rs82846359 Rs941161 1983 84 Rs82149626 Rs94461594 1984 85 Rs80018673 Rs 121590418
In the Rajasthan cases the financial statements furnished before the High Court for the 7 years from 1977 78 to 1983 84 the receipts in lakhs by way of court fee and expenditure incurred for the services furnished in brackets are respectively 1977 78 Rs10142
Rs26456 1978 79 Rs9550 Rs286 90 1979 80 Rs11463 Rs32304 1980 81 Rs134 92 Rs379 89 1981 81 Rs15962 Rs44483 1982 83 Rs179 87 Rs54476 1983 84 Rs17641 Rs 69211
It is true that in the Rajasthan statements there was no break up of the figures between expenditure on administration of civil justice and criminal justice but having regard to the figure a reasonable estimate of the proportion of the former is possible and the figures do indicate and establish the requisite correlationship
The contention a of the appellants is insubstantial
Re Contention b The basic argument is that having regard to the very nature of the judicial process of resolution of disputed in civil courts the postulate that judicial time and the service of the machinery of justice is consumed and utilised in direct proportion to the amount or value of the subject matter is the first and fundamental error
The rationale of the imposition of court fee on an increasing scale according as the value or the amount of the subject matter is it is urged an error which is the logical result and outcome of the first
In the distribution of the burden of the court fee amongst the litigants it is urged the ad valorem yardstick which is relevant and appropriate to taxation is wholly inappropriate because the principle or basis of distribution in the case of a fee should be the proportionate cost of services inter se amongst the beneficiaries
Reliance is placed on The Commissioner Hindu Religious Endowments Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt  Reliance is also placed on the following observations of Mukherjea J in Commissioner Hindu Religious Endowment Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt   relied on by Venkataramiah J in Om Prakash Aggarwal etc
PG NO 178 vs Giri Raj Kishori and others etc
1986 SCC 1 730
Coming now to fees a fee is generally defined to be a charge for a special service rendered to individuals by some governmental agency
The amount of fee levied is supposed to be based on the expenses incurred by the government in rendering the service though in many cases the costs are arbitrarily assessed
Ordinarily the fees are uniform and no account is taken of the varying abilities of different recepients to pay Emphasis supplied The following observations of Krishna Iyer J in NM Desai vs The Teesteels Ltd and another AIR 1980 2 SC 2125 are also relied upon It is more deplorable that the culture of the magna carta notwithstanding the anglo lndian forensic system and currently free India s court process should insist on payment of court fee 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 where equality before the law is guaranteed constitutional fundamental and the legal system has been directed by Article 39A to ensure that opportunities for securing justice are not denied to any citizen by reason of economic disabilities
 The right of effective access to justice has emerged in the Third World countries as the first among the new social rights what with public interest litigation community based actions and pro bono public proceedings
Effective access to justice can thus be seen as the most basic requirement the most basic Human Right  of a system which purports to guarantee legal rights However the observations in Shirur Mutt s case as to the uniformity of the levy must be understood in the light of the next sentence in that very passage which says 
These are undoubtedly some of the general characteristics but as there may be various kinds of fees it is not possible to formulate a definition that would be applicable to all cases
 PG NO 179 The criticism of Krishna Iyer J as to the profiteering scale  would as the passage relied upon itself indicates be attracted only if the levy is without the correlative expenditure in the administration of civil justice
 Reference was also made to certain observations of the learned author HM Seervai Constitutional Law of India Third Edn
Vol II 1958 that court fee should not be a weapon to stifle suits or proceedings and that though in fixing the court fees regard may be given to the amount involved a stage is reached when an increasing amount ceases to be justified  Thus an ad valorem court fee of 1 percent for suits involving Rs l lack or more with a maximum of Rs15000 or Rs20000 may be justified but a court fee without limit cannot be justified for after a certain amount is reached no greater service can be rendered to whole classes of litigants on the contrary such increased court fees render disservice by rendering the cost of litigation prohibitive Emphasis supplied Learned counsel also referred to and relied Upon the decision of the Bombay High Court in Indian Organic Chemicals vs Chemtax Fibres 1983 Bombay LR 406 upon certain observations of the Madras High Court in Secretary Government of Madras Home Department And Another vs Zenith Lamp  Electrical Ltd ILR 1968 Madras 247 and on a judgment dated 22121972 of the FUll Bench of the Gujarat High Court in Lady Tanumati Girijaprasad and another vs Special Rent Acquisition Officer Western Railway Ahemadabad Special Civil Application No 979 of 1970 with Special Civil Application 287 of 1967
The submissions on this point in some areas overlap contention c but the point sought to be emphasised so far as the present contention is concerned is that the essence and the planitude of the concept of fee  requires not only that there should be a broad correlationship between the impost and the services but also a requirement inherent in and as a part of the concept itself that the expenses for the services must also be distributed in an equitable manner amongst those constituting the class receiving the services
This aspect it is urged is distinct from the susceptibility of the impost to be declared unconstitutional on the ground that the distribution of its burden is arbitrary
The same event demonstrating the unfairness of the distribution of the PG NO 180 burden would it is urged produce two distinct legal consequences first detracting from the fundamental concept of a fee and secondly by reason of the invidious discrimination wrought by it is violative of the constitutional pledge of equality
State Governments would however say that this is merely two different ways of saying the same thing and that the concept of a fee  never really depended for its validity conceptually as a fee  upon the requirement of a just and equitable distribution of its burden amongst the recipients of the service and that as long as a broad approximation between the expenses of the services and the amount raised by the fee is established the impost would continue to retain and not shed its complexion as a fee If there is arbitrariness of inequitability in the distribution of the burden that aspect would it is submitted not detract from basic concept of the levy as a fee  but vitiates the levy for hostile discrimination
Perhaps the most lucid formulation and presentation of the appellants contention for whatever it is worth in the ultimate analysis are to be found in the Judgment of the Madras High Court in the Zenith Lamp Case lLR which came up before this court in 19732 SCR 973
Those observations sum up the matter succinctly Irrespective of the magnitude of the claim and the complexity of the case and the anxiety of the suitor a limit will be reached so far as the service that could be rendered in courts is concerned
Judicial time is not spent in direct proportion to the value of the claim
It may have relation to the question involved
That appears to be the reason behind the maximum court fee originally prevalent and even now found in some states 
The problem is in the distribution of the levy in a practical and reasonable manner so as to fall fairly equitably on all suitors that no particular class or section of them is disproportionately hit and made to bear more than their fair share of the expenditure on the administration of justice on considerations not germane in the context of the levy authorised by law As it is as the value of the claim goes up the levy becomes more and more unrelated to the object of the levy
A PG NO 181 few suitors would be made to bear a heavy share of the expenditure unrelated to the services required by them with the result that when the claims are high only one of the two essential elements of a levy to be regarded as a fee is left While the occasion for the levy is the demand of special service by the suitor that is one element is present there is no reasonable
correlation between the levy and the services that is the second element is lacking
The levy becomes excessive grossly disproportionate and unreasonable qua the particular suitor it ceases to be a fee and becomes a tax for him Emphasis supplied ILR Mad 1968 368 372
This is the crux of the matter and a fair summing up of the arguments of the learned counsel for the appellants
This again is what the High Court of Bombay adopted in the case of Indian Organic Chemicals vs Chemtax Fibres 1983 LR Bombay 406 one of the cases relied upon by the appellants
We may briefly refer to the setting in which the matter arose before the Bombay High Court
In the proceedings the plaintiffs challenged the provisions of the Bombay Court Fees Second Amendment Act 1974 by which inter alia the upper limit of the court fee of Rs15000 then obtaining was done away with
The consequence was that ad valorem court fee without any upper limit had had to be paid
The matter arose out of what was alleged as the Backbay Scandal  in which various plots of land reclaimed from the Sea in South Bombay were disposed of by Government according to plaintiffs  allegation in violation of the prescribed rules and for a pittance in order to confer a largesse on the chosen
The allotment of plots appears initially to have been challenged in writ proceedings but ultimately a suit had had to be filed as disputed questions of facts were stated to have been involved
The value of the subject matter of the suit was Rs 5563073187 and the court fee payable was Rs560000 under the amended Act which had in the meantime come into force
The amendment was challenged on three grounds
The first was that the legislation was itself mala fide and was ushered in with oblique motives of stifling the very suit and the challenge to the impugned allotments
The second was that levy of court fees ad valorem without any upper limit would alter the character of the levy and convert it from fee  into a tax 
The third contention was that the amendment was a colourable piece of legislation and was not a legitimate exercise to raise a fee but to impose in the PG NO 182 cloak of a fee a tax to augment the general public revenues
The Bombay High Court rejected the first contention but accepted the second and held that even if the Government had satisfied itself that there was necessity for collection of enhanced quantum of court fee it could have done so on the basis of a rationalised structure which might result in the enhancement of the ceiling from Rs 15000 to 20000 or even 25000 in which event the court would not be able to hold that the levy had become so excessive and so grossly disproportionate and unreasonable qua a particular suitor as to cease to be a fee and become a tax
The High Court held 
In the case before us the fact that the plaintiff on its claim is called upon to pay after the amending Act of 1974 court fees of Rs 560000 eloquently testifies to the harshness the excessive character and the unreasonableness of the levy and once such conclusions are reached it will have to be held that this levy at the higher figure which is secured by the impugned Act has converted exation from a fee  into a tax 
If that be the result secured through the enactment which has brought about this result would be liable to be struck down ILR Bom
 1981 Vol 83 415 16
On the third ground also the court upheld the challenge being of the view that the Government had not established the quid pro quo to the requisite extent
So far as the decision of the Full Bench of the Gujarat High Court in Lady Tanumati Girijaprasad and another vs Special Rent Acquisition Officer Western Railway Ahemadabad Special Civil Application No 979 of 1970 with Special Civil Application 287 of 1967 is concerned that decision even to the extent it goes is not on the aspects emphasised in these appeals
The decision really turned on the question whether correlation between the services and the fee had taken established or not
The High Court was of the view that it had not
Sri FS Nariman submitted that the facts of the Rajasthan appeal were itself demonstrative of the arbitrariness and inequities inherent in the imposition of the ad valorem impost without an upper limit
In that case the appellant was called upon to pay on his plaint almost PG NO 183 l7th of the entire estimated court fees receipts of the year and it would be inconceivable that proportionately 17th of the judicial time would be spent on this suit
Learned counsel submitted that in the very nature of the judicial process a stage is reached beyond which there could be no proportionate or progressive increase in the services rendered to a litigant either qualitatively or quantitatively
Unless that limit is recognised and a corresponding ceiling of court fee fixed the impost qua the particular litigant it is urged would shed its complexion as a fee and would par take of the nature of an exaction more resembling a tax than a fee
Learned counsel submitted that in the process of adjudication of disputes before courts judicial time and the machinery of justice are not utilised in direct proportion to the value or the amount of the subject matter of the controversy
Cases involving very small claims might raise difficult questions of fact and law requiring the expenditure of judicial time wholly disproportionate to the court fee paid in the case
Conversely claims involving heavy financial sums might not as in the case of suits on negotiable instruments generally take much time of the court at all
That apart it is urged a recognition of the outer most limit of the possible services and a prescription of a corresponding upper limit of court fee should be made lest the levy in excess of that conceptual limit becomes a tax
The ideal measure or yardstick of court fee learned counsel said was a fee in proportionate to the judicial the expended over a case and if this measure or yardstick is difficult of application owing to its practical difficulties in its effectuation either of the two further alternatives could save a legislation imposing a fee
One such was to fix an upper limit commensurate with conceptionalised outer most limit of the money value of the maximum possible services
hypothetically so conceived
The second was to stipulate after a particular stage progressively lower rates on correspondingly increasing slabs of the value of the subject matter or in other words after a certain stage to make the rates go down according as the value goes up
We have given our careful and anxious consideration to this vexed problem which is a subject matter of considerable debate both in and outside courts
The anomalies that the policy behind the impugned provisions can produce in conceivable cases could indeed be inequitable or even quite startling
But the argument in the last analysis becomes indistinguishable from the contention that the correlation of the services to the fee would have to be decided on the basis of how the correlation operates in each individual case
It would be an insistance on testing the conceptual nature of the fee on the basis of the degree of the quid pro quo in the case of each individual payer of the PG NO 184 fee
That is the peccant part of the argument
Once a broad correlation between the totality of the expenses on the services conceived as a whole on the one hand and the totality of the funds raised by way of the fee on the other is established it would be no part of the legitimate exercise in the examination of the constitutionality of the concept of the impost to embark upon its effect in individual cases
Such a grievance would be one of disproportionate nature of the distribution of the fees amongst these liable to contribute and not one touching the conceptual nature of the fee
Indeed this position was clearly recognised by the Madras High Court in Zenith Lamp s case itself in the following passage of the Judgment If in substance the levy is not to raise revenues also for the general purpose of the State the mere absence of uniformity of the fact that it has no direct relation to the actual services rendered by the authority to each individual who obtains the benefit of the service or that some of the contributories do not obtain the same degree of service as other may will not change the essential character of the levy ILR Mad 1968 340 41
There might conceivably be cases where a particular individual contributor may not derive any benefit at all though as a member of the class he has no option but to make the contribution
The principle underlying the contention that beyond a point the impost ceases to have the quality of a fee if valid can be visualised and applied even to cases where despite the uniformity in the distribution of the burden a particular individual does not obtain any service at all
This cannot be a legitimate and permissible ground of invalidation
This is however not to say that if the scheme of distribution of the burden is so arbitrary so unreasonable and disproportionate as to offend the requirements of Article 14 the levy does not fail as violative of Article 14
In HH Sudhundra Thirtha Swamiar vs Commissioner For Hindu Religious  Charitable Endowments Mysore  this court held  Nor is it a postulate of a fee that it must have direct relation to the actual services rendered by the authority to individual who obtains the benefit of the service
If with a view to provide a specific service levy PG NO 185 is imposed by law and expenses for maintaining the service are met out of the amounts collected there being a reasonable relation between the levy and the expenses incurred for rendering the service the levy would be in the nature of a fee and not in the nature of a tax Emphasis supplied In The City Corporation of Calicut vs Thachambalath Sadasivan and others l985 2 SCC 115 this court held It is not necessary to establish that those who pay the fee must receive direct benefit of the services rendered for which the fee is being paid
If one who is liable to pay receives general benefit from the authority levying the fee the element of service required for collecting fee is satisfied
It is not necessary that the person liable to pay must receive some special benefit or advantage for payment of the fee
Emphasis supplied 27
What emerges from the foregoing discussion is that when a broad and general correlation between the totality of the fee on the one hand and the totality of the expenses of the services on the other is established the levy will not fail in its essential character of a fee on the ground alone that the measure of its distribution on the persons of incidence is disproportionate to the actual services obtainable by them
The argument that where the levy in an individual case for exceeds the maximum value in terms of money of the services that could at all be possible them qua that contributor the correlation breaks down is a subtle and attractive argument
However on a proper comprehension of the true concept of a fee the argument seems to us to be more subtle than accurate
The test of the correlation is not in context of individual contributors
The test is on the comprehensive level of the value of the totality of the services set off against the totality of the receipts of the character of the fee  is thus established the vagaries in its distribution amongst the class do not detract from the concept of a fee  as such though a wholly arbitrary distribution of the burden might violate other constitutional limitation
This idea that the test of the correlation is at the aggregate level and not at individual level is expressed thus
First Principles of Public Finance by De Marco
The fee must be equal in the aggregate to the cost of PG NO 186 production of the service
That is the aggregate amount of the fees which the State collects from individual consumers must equal the aggregate expenses of production Emphasis supplied
The view taken of the matter by the Bombay High Court in the Indian Organic Chemicals case and the view of the earlier Madras High Court in Zenith Lamp s case do not commend themselves as sound having regard to the accepted tests to determine the nature of a fee 
Contention b is not substantiated
Re Contention c It is urged that even if the requisite correlationship could be held to have been established the Rajasthan and the Karnataka legislations by distributing the burden on the ad valorem principles based merely on the value of the subject matter independently of considerations of the utilisation of Judicial time are per se irrational and bring about an arbitrary and disproportionate distribution of the burden so irrational and so divorced from relevant criteria that the impugned provisions violate Article 14
It is urged that a litigation on which a litigant might have paid a mere Rs 50 by way of court fee might involve far more substantial questions and take up judicial time in a measure far greater than a litigation on which a litigant is called upon to pay Rs 25 lakhs by way of court fee
It is urged that the ad valorem principle which is appropriate to taxation would be inapposite in the context of an impost which is meant as a contribution towards the costs of services
The contention of the States is that as long as their power to raise the funds to meet the expenses of administration of civil justice is not disputed and as long as the funds as raised show a correlation to such expenses the State should have sufficient play at the joints to work out the incidents of the levy in some reasonable and practical way
It would quite obviously impracticable so proceeds the argument to measure out the levy directly in proportion to the actual judicial time consumed in each individual case hence the need to tailor some rough and ready workable basis which though may not be an ideal or the most perfect one would at least hostile
Perfection in any system of imposition of monetary exactions is an PG NO 187 unattainable goal and that therefore the satisfaction of high positive virtues in the scheme is not to be expected but what is to be seen is whether any serious vice of blatant discrimination without any rational basis whatsoever vitiates the system
It will obviously be unreasonable says the States  learned counsel to distribute the total expenses amongst all the litigants uniformally irrespective of the amount or value of the subject matter of the litigation
If contends counsel an upper limit is fixed and the collection fell short of what the Government intends and is entitled to collect this would eventually result in the enhancement of the general rates of court fee for all categories
The ad valorem principle is a well recognised principle it may not provide the best or the most perfect answer but it can it is urged reasonably be expected to provide the least hostile and workable basis of distribution of the burden
If the value of the subject matter is a relevant factor in proportioning the burden of the court fee is indeed it has been so held where the line should be drawn in applying the principle it is more a matter of legislative wisdom and preference than of the strict judicial evaluation and adjudication
There might possibly be better methods of administering the collections but that by itself it is contended is no ground to strike down what might appearing to be a less perfect system particularly when economic measures and regulations are concerned
So far as the Directive Principles in Article 39A are concerned the learned Solicitor General said that the directive principles are fundamental in the governance of the country cannot be gainsaid but in implementing them policy considerations and priorities will have to be duly evaluated having regard to the financial constraints
The grievance in these petitions is by the class of the litigants consisting of big financial institutions with superior economic power
The superiority of the economic power is not it is urged irrelevant in making them share a higher burden of a public impost
At all events it is urged courts can not compel the State to bring forth any legislation to implement and effectuate a Directive Principle
The problem is indeed a complex one not free from its own peculiar difficulties
Though other legislative measures dealing with economic regulation are not outside Article 14 it is well recognised that the State enjoys the widest latitude where measures of economic regulation are concerned
These measures for fiscal and economic regulation involve an evaluation of diverse and quite often conflicting economic criteria and adjustment and balancing of various conflicting social and economic values and interests
It is for the State to decide what economic and social policy it PG NO 188 should pursue and what discriminations advance those social and economic policies
In view of the inherent complexity of these fiscal adjustments courts give a larger discretion to the Legislature in the matter of its preferences of economic and social policies and effectuate the chosen system in all possible and reasonable ways
If two or more methods of adjustments of an economic measure are available the Legislative preference in favour of one of them cannot be questioned on the ground of lack of legislative wisdom or that the method adopted is not the best or that there were better ways of adjusting the competing interests and claims
The Legislature possesses the greatest freedom in such areas
The analogy of principles of the burden of tax may not also be inapposite in dealing with the validity of the distribution of the burden of a fee  as well
This Court in East India Tobacco Co vs State of Andhra pradesh referred to with approval the following passage in Rottschaefer s Constitutional Law p 668 The decisions of the Supreme Court in this field have permitted a State legislature to exercise an extremely wide discretion in classifying property for tax purposes so long as it refrained from clear and hostile discrimination against particular persons or classes
 The Legislature has to reckon with practical difficulties of adjustments of conflicting interests
It has to bring to bear a pragmatic approach to the resolution of these conflicts and evolve a fiscal policy it thinks is best suited to the felt needs
The complexity of economic matters and the pragmatic solutions to be found for them defy and go beyond conceptual mental models
Social and economic problems of a policy do not accord with preconceived stereotypes so as to be amenable to pre determined solutions
In The State of Gujarat and Another vs Shri Ambica Mills Ltd Ahemdabad Etc this court observed 
The court must be aware of its own remoteness and lack of familiarity with the local problems
Classification is dependent on the particular needs and specific difficulties of the community which are beyond the easy ken of the court and which the legislature alone was competent to make
Consequently lacking the capacity to inform itself fully about the peculiarities of a particular local situation a court should hesitate to dub the legislative PG NO 189 classification as irrational   The question whether under Article 14 a classification is reasonable or unreasonable must in the ultimate analysis depend upon the judicial approach to the problem
The more complicated society becomes the greater the diversity of its problems and the more does legislation direct itself to the diversities
In the utilities tax and economic regulation cases there are good reasons for judicial self restraint if not official deference to legislative judgment
The courts have only the power to destroy but not to reconstruct
When to this are added the complexity of economic regulation the uncertainty the liability to error the bewildering conflict of the experts and the number of times the judges have been overruled by events self limitation can be seen to be the path to judicial wisdom and institutional prestige and stability Laws regulating economic activity should be viewed differently from laws which touch and concern freedom of speech and religion voting procreation rights with respect to criminal procedure etc
Judicial deference to legislature in instances of economic regulation is explained by the argument that rationality of a classification depends upon local conditions about which local legislative or administrative bodies would be better informed than a court
 The lack of perfection in a legislative measure does not necessary imply its unconstitutionality
It is rightly said that no economic measure has yet been devised which is free from all discriminatory impact and that in such a complex arena in which no perfect alternatives exist the court does well not to impose too rigorous a standard of criticism under the equal protection clause reviewing fiscal services
In GK Krishnan etc etc vs The Stale of Tamil Nadu and Anr
 1975 2 SCR 715 730 this Court referred to with approval the majority view in San Antonio Independend School District vs Bodrigues speaking through Justice Stewart 411 US
I at page 41 No scheme of taxation whether the tax is imposed on property income or purchases of goods and services has yet been devised which is free of all discriminatory impact
In such a complex arena in which no perfect alternatives exist PG NO 190 the court does well not to impose too rigorous a standard of scrutiny lest all local fiscal schemes become subjects of criticism under the Equal Protection Clause and also to the dissent of Marshall J who summed up his conclusions thus In summary it seems to me inescapably clear that this court has consistently adjusted the care with which it will review state discrimination in light of the constitutional significance of the interests affected and the invidiousness of the particular classification
In the context of economic interests we find that discriminatory state action is almost always sustained for such interests are generally far removed from constitutional guarantees
Moreover the extremes to which the court has gone in dreaming up rational bases for state regulation in that area may in many instances be described to a healthy revulsion from the court s earlier excesses in using the Constitution to protect interests that have more than enough power to protect themselves in the legislative halls
 Dandridge vs Williams 397 US at 520
The observations of this court in Income Tax Officer Shillong and Anr
vs N Takim Roy Rymbai Etc
Etc  made in the context of taxation laws are worth recalling The mere fact that a tax falls more heavily on same in the same category is not by itself a ground to render the law invalid
It is only when within the range of its selection the law operates unequally and cannot be justified on the basis of a valid classification that there would be a violation of Article 14 Emphasis supplied
The question whether the measure of a tax or a fee  should be ad valorem or ad quantum is again a matter of fiscal policy
In the Zenith Lamp s Case this court observed The fee must have relation to the administration of civil justice
While levying fees the appropriate legislature is competent to take into account all relevant factors the value of the subject matter of the dispute the PG NO 191 various steps necessary in the prosecution of a suit or matter the entire cost of the upkeep of courts and officers administering civil justice the vexatious nature of a certain type of litigation and other relevant matters
It is free to levy a small fee in some cases a large fee in others subject of course to the provisions of Article 14 Emphasis supplied
In the context of levy of market fee a similar argument was advanced before a High Court that the imposition of market fee advalorem on different commodities irrespective of their weight or volume and irrespective of the extent of the market services rendered in respect of their marketing produced inequality and hostile discrimination
It was urged that the nature and extent of services afforded by the Market Committees must necessarily vary having regard to the nature and volume of the agricultural produce and therefore a blind ad valorem levy would be arbitrary as the services rendered to a buyer who buys say a quintal of cotton or tamarind is quantitatively and qualitatively more than the services that may be envisaged to the class of traders dealing with spices of equivalent money value
The distribution of the burden of the fee on the basis of the value of the commodity it is argued was arbitrary as it did not recognise that the services are inherently different for different classes of commodities but treated unequals equally
This argument has its ring of familiarity with the arguments in the present case
But the High Court ILR 1982 Karnataka 399 reserved by the Supreme Court on another point repelled this contention We are unable to subscribe to this view
Indeed it appears to us that if the impost was ad quantum and not ad valorem it might have attracted
quite legitimately perhaps
the criticism of being arbitrary
By an advalorem impost the goods independently of their volume and quality are treated equally in term of their value
An impost advalorem is a well accepted concept in taxation Indeed in Ganga Sagar Corporation s case AIR 1980 SC 286 Supreme Court dealing though in a different context stated 
Article 14 a great right by any canon by its promiscuous forensic misuse despite the Dalmia decision has given the impression of being the last sanctuary of losing PG NO 192 litigants Price is surely a safe guide but other methods are not necessarily vocational
It depends 33
It was then argued that various States have different standards and that while some States have rightly recognised the need for an upper limit to save the constitutionality of the levy other States like Karnataka Tamil Nadu etc
envisaged an ad valorem levy with out any upper limit
It is contended that though India is a federal polity the judicial system however is an integrated one and that therefore different standards of court fee in different States would be unconstitutional
But it is trite that for purposes of testing a law enacted by one State in exercise of its own independent legislative powers for its alleged violation of Article 14 it cannot he contrasted with laws enacted by other States
In The State of Madhya Pradesh vs GC Mandawar
  this court observed Article 14 does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory
Nor Does it contemplates a law of the Center or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of two enactments  34
Having regard to the nature and complexity of this matter it is perhaps difficult to say that the ad valorem principle which may not be an ideal basis for distribution of a tee can at the same time be said to be so irrational as to incur any unconstitutional infirmity
The presumption of constitutionality of laws requires that any doubt as to the constitutionality of a law has to be resolved in favour of constitutionality
Though the scheme cannot be upheld at the sametime it cannot be struck down either
The State is in theory entitled to raise the totality of the expenses by way of fee
Any interference with the present yardstick for sharing the burden might in turn produce a yardstick less advantageous to litigants at lower levels
Subject to certain observations and suggestions we propose to make in regard to the rationalisation of the levies in view of the general importance of the matter to the administration of civil justice we think we should decline to strike down the law
PG NO 193 36
Re Contention d A In the appeal of the State of Maharashtra arising out of the Bombay Court Fees Act 1959 the High Court has struck down the impugned provisions on the ground that the levy of court fee on proceedings for grant of probate and letters of administration ad valorem without the upper limit prescribed for all other litigants the court fee in the present case amounts to Rs614814 is discriminatory
The High Court has also held that there is no intelligible or rational differentia between the two class of litigation and that having regard to the fact that what is recovered is a fee the purported classification has no rational nexus to the object
The argument was noticed by the Learned Single Judge thus Petitioners next contend that the impugned clause discriminates as between different types of suiters and that there is no justification for this discrimination
Plaintiffs who go to civil courts claiming decrees are not required to pay court fees in excess of Rs 15000
This is irrespective of the amounts claimed over and above Rs 15 lacs
As against this persons claiming probates have no such relief in the form of an upper limit to fee payable
 This contention was accepted by the Learned Single Judge who has upheld the appeal
Indeed where a proceeding for grant of probate and letters of administration becomes a contentious matter it is registered as a suit and proceeded with accordingly
If in respect of all other suits of whatever nature and complexity an upper limit of Rs 15000 on the court fees is fixed there is no logical justification for singling out this proceeding for an ad valorem impost without the benefit of some upper limit prescribed by the same statute respecting all other litigants
Neither before the High Court nor before us here was the impost sought to be supported or justified as something other than a mere fee levy of which is otherwise within the State s power or as separate fee  from another distinct source
It is purported to be collected and sought to be justified only as court fee and nothing else
The discrimination brought about by the statute in our opinion fails to pass the constitutional master as rightly pointed out by the High Court
The High Court in our opinion rightly held There is no answer to this contention except that the legislature has not thought it fit to grant relief to the seekers of probates whereas plaintiffs in civil suits were PG NO 194 thought deserving of such an upper limit
The discrimination is a piece of class legislation prohibited by the guarantee of equal protection of laws embodied in Article 14 of the Constitution
On this ground also item 10 cannot be sustained  We approve this reasoning of the High Court and the decision of the High Court is sustained on this ground alone
In view of this any other ground urged against the constitutionality of the levy is Unnecessary to be examined
Contention d is accordingly held an answer against the appellant and the appeals preferred by the State of Maharashtra are liable to be and are hereby dismissed
Now at the end of the day what remains is the suggestion necessary in regard to the rationalisation of the court fees under the Rajasthan Act  and the Karnataka Act The arguments in the case highlight an important aspect
The levy of court fee at rates reaching 10 ad valorem operates harshly and almost tends to price justice out of the reach of many distressed litigants
The Directive Principles of State Policy though not strictly enforceable in courts of law are yet fundamental in the governance in the country
They constitute fonsjuris in a Welfare State
The prescription of such high rates of courtfees even in small claims as also without an upper limit in larger claims is perilously close to arbitrariness an unconstitutionality
The ideal is
of course a state of affairs where the state is enabled to do away with the pricing of justice in its courts of justice
In this reach for the ideal it serves to recall the words of Robert KennedySome men see thing as they are and say why I dream things that never were and say why not  The power to raise funds through the fiscal tool of a fee is not to be confused with a compulsion so to do
While fee meant to defray expenses of services cannot be applied towards objects of general public utility as part of general revenues the converse is not valid General Public revenues can with justification be utilised to meet
wholly or in substantial part the expenses on the administration of civil justice
Many States including Karnataka and Rajasthan had earlier statutory upper limits fixed for the court fee
But later legislations has sought to do away with the prescription of an upper limit
The insistence on raising court fees at high rates recalls of what Adam Smith Wealth of Nations said PG NO 195 There is no art which one government sooner learns of another than that of drawing money from the pockets of the people
Fees are levied no doubt to defray the cost of services but as observed by Findlay Shirras Science of Public Finance Vol
II 674 675 Fees are levied in order to defray usually a part in rare cases the whole of the cost of services done in public interest and conferring some degree of advantage on the fee payer
Emphasis supplied Though we have abstained from striking down the legislation yet it appears to us that immediate steps are called for and are imperative to rationalise the levies
In doing so the States should realise the desirability of levying on the initial slab of the subject matter say upto Rs 15000 a nominal court fees not exceeding 2 to 2 12 so that small claims are not priced out of Courts
Those who have less in life  it is said should have more in law
Claims in excess of Rs 15000 might admit of an ad volorem levy at rates which preferrably should not exceed 712 subject further to an upper limit which having regard to all circumstances could be envisaged at Rs75000
The upper limit even piror to 1974 under the Bombay Act was Rs15000 and prior to 1961 under the Rajasthan Act  at Rs7500
Having regard to steep inflation over the two decades the upper limit could perhaps go upto Rs75000
After that limit is reached it is appropriate to impose on gradually increasing slabs of the value of the subject matter progressively decreasing rates say from 7 l2 down to 12 in graduated scales
The Governments concerned should bestow attention on these matters and bring about a rationalisation of the levies
With these observations and directions we dismiss the appeals writ petitions and special leave petitions but in the circumstances without an order as to costs
RSS Appeals  Petitions dismissed


Summary:
The petitioners who have been convicted for the offence punishable under section 302 of the Indian Penal Code and have been sentenced to life imprisonment claim entitlement to the benefit of section 5 of the Act
Dismissing the writ petitions HELD The Punjab Borstal Act 1926 does not have application to an offence punishable under section 302 of the Indian Penal Code
143G The offence of murder is punishable with death even though the punishment awarded is not death but imprisonment for life
144H Punishable  in section 24 of the Act carries a meaning liable to be punished 
Since the offence under section 302 is punishable with death the provisions of the Punjab Borstal Act would not cover an offence under section 302 of IPC and the benefit would not therefore be available to an accused convicted for the offence under section 302 IPC 145E Subhash Chand vs State of Haryana  Ors  applied Hava Singh vs State of Haryana  Anr 1987 4 SCC 207 State of Andhra Pradesh vs Vallabhapuram Ravi  and Kunwar Bahadur  Ors
vs State of Uttar Pradesh 1980 Supp SCC 339 distinguished
PG NO 141 PG NO 142