MOTION FOR AN ADDRESS. (Hansard, 23 March 1886)

§ LORD FITZGERALD
, in moving for— A Return of the taxes and duties raised or levied on the administration of justice in India during the year 1885, whether by stamps, ad valorem duties, or otherwise, under the Act of the Governor General of India in Council in 1870, or any of the Acts referred to therein or otherwise; and that the subject of the taxation of justice in India may be referred to the Select Committee on the operation of the Act for the better government of India (1858), and certain other Acts relating to India, said, that this was a matter of considerable importance, affecting, as it did, the welfare of the inhabitants of India, representing a population of 250,000,000 persons. The matter might appear to be a very small one in the eyes of their Lordships; but he could assure them that it was of very great interest to the Indian people. He was impelled to bring forward this Motion by a sense of public duty; and he would endeavour to explain why he had taken the subject up. He was a Member of the Indian Committee which sat in 1853, and to whose labours they were indebted for the Government of India Bill of 1858. While sitting on that Committee his attention had naturally been directed to three subjects—the administration of justice in India, the judicial appointments, and the taxation of justice in India. Petitions were presented to the Committee from Indian subjects relating to the taxation of justice. The following was an extract from one of the many Petitions presented:— Your petitioners have to complain of a heavy taxation on all law proceedings by means of using stamped paper rising from 2s. to £200 on plaints and petitions alone, and which way-lay the suitor at every subsequent step. 'Where is your stamped paper?' asks the Judge; if not produced he is obliged to stop the pleader and the suit. An error in the stamp is often irremediable, and the constant cause of a failure of justice. Pestonjee, a leading Indian witness before the Committee of 1853, in giving his evidence, said— 1613 I have another grievance to mention. Parties engaged in litigation are obliged to undergo very heavy taxation for stamped paper; the revenue from this is very large. Every plaint and every petition to either Court of Appeal must be written on stamped paper from one to 2,000 rupees, according to a certain scale. In addition, all supplementary sheets, all pleadings, exhibits, and all papers and documents relating in any manner to the suit are not received unless on stamped paper. It sometimes rises to 32 per cent. All economic writers agreed that— The worst of all taxation is that on the administration of justice. It acted as a 'prohibition' and deprived man of everything by depriving him of justice. By means of this taxation the poor—that is, the bulk of the community, and especially the oppressed—were put out of the protection of the law. The proceedings of the Committee of 1853 terminated with the great Constitutional Act of 1858, which swept away the Board of Control and substituted for it a Government of the Queen and the present Government of India. Two years afterwards he ceased to be a Member of Parliament; but, returning to London 22 years after, it was his privilege to become a Member of the Privy Council. While sitting as a Member of the Judicial Committee of the Privy Council, he I found that many appeals from India were brought under the notice of Her Majesty. He returned to the questions which had interested him 20 years before, and with reference to the judicial appointments he found a wonderful improvement had taken place. Great progress had been made in India during that period in reference to the appointment of the Judges and the administration of the law. It was one of the greatest blessings to the Indian people that now they had a pure administration of justice, under Judges who might be thoroughly trusted. There existed among the Indian population the utmost confidence in the administration of justice; but while he found this improvement had taken place in the interval, he also found that nothing had been done potentially to reduce the amount of taxation on the administration of justice. There were general Indian Stamp Acts parsed prior to 1870; but they culminated in the Court Fees Act of 1870, passed by the Governor General in Council during the time of Lord Mayo. That Act was a regular sweep-net, from which there was no exception and no escape. It extended 1614 to the whole of British India, and to all Courts, great and small, including the Small Debts Courts in the Presidency towns. By Schedule 1 of that Act the fee on the initiation of the suit advanced on a graduated scale from a suit where the value of the subject of litigation did not exceed five rupees—which was taxed at eight annas—up to an initiatory tax of 3,000 rupees—that was to say, £300)—according to the value of the matter in controversy. This was only the initiatory tax. Among the suits specified was one to recover possession of a wife. Then there were complicated and vexatious provisions for ascertaining the value of the subject of litigation. Every step in the cause was subject to a fee or tax. The defendant had his share to pay as well as the plaintiff. There were fresh taxes when the case was moved to the District Court of Appeal and to the Supreme Court. From the Parliamentary Abstract of 1877–8 he gathered that the receipts under the head of law and justice in India amounted in that year to £813,221. Stamps yielded £2,993,483, the greater part of which, according to a note by the compiler of the Abstract, was derived from fees on litigation. The expenditure on law and justice, on the other hand, was £3,555,000. The accounts for 1882–3 showed that the receipts for law and justice were £657,000, and for stamps £3,380,000, while the expenditure was £3,255,000. In 1883–4, again, the sale of Court fee stamps yielded £2,416,825. Probably the noble Earl the Secretary of State for India would tell their Lordships that the expenditure on justice in India was not, after all, more than the receipts, and that the charges, large though they might be, were not more than the people were apparently prepared to pay. But that was no answer at all; nor was it an answer to say that taxation on justice tended to prevent litigation. He had always looked upon the noble Earl as a pound economist, and he would doubt-less remember the doctrine laid down by Bentham on this subject, to the effect that "nothing can be worse than the taxation of justice." Expensive law deprived the poor man of his rights, it did not check litigation, and left a power of oppression in the hands of the rich. Justice was taxed in India in a way that would not be tolerated in this country; and his desire was to call attention 1615 to the grievous injustice inflicted upon the millions of India in this matter, in the hope that some means might be devised to mitigate a great and crying evil.

THE SECRETARY, OF STATE FOR INDIA (The Earl of KIMBERLEY)
said, the noble and learned Lord had brought under the consideration of the House a subject of very great importance; and no one was better qualified to explain it in all its details. It was, at the same time, a subject of extremely technical nature; and he did not propose to follow the noble and learned Lord through the details which he had placed so clearly before the House. He would, first of all, observe that his noble and learned Friend had been good enough to credit him with being a sound economist; and the quotation from Bentham, no doubt, went to show that justice should be made cheap. Notwithstanding the great authority of Bentham, however, one had yet to learn that justice was extremely cheap in England. In India, as his noble and learned Friend rather admitted, there was an extreme desire for litigation; and it was certain, at all events, that the fees which had been levied had not stopped litigation. Whether these fees had given too great an advantage to the rich he was not prepared to say; but that litigation went on in India on a very large scale was apparent to everyone. Undoubtedly the matter required attention; and complaints had been made that the fees were too high, and these complaints had been seconded by persons in authority. Sir Richard Garth, the Chief Justice of the High Court, Calcutta, had drawn attention to the subject in an interesting memorandum. The Viceroy and a Committee of the Legislative Council were now specially dealing with the question; and as long ago as 1881 a Bill was brought in by the Council which, though it was originally of a financial character, 1616 had led to an examination of the whole question. In 1884 a Circular was sent round to all the Courts in India requesting information. There was a strong opinion in favour of revision of the institution fees; but, at the same time, it was impossible for Governments to leave finance out of sight. India was just now under great financial pressure, and it was absolutely necessary to consider the question, not merely with reference to the particular tax or fee, but to the whole financial position of the country. The Viceroy and the Government were desirous of removing any grievance which might be found to exist. As the question was of an extremely technical character, and was already in the proper hands for its investigation, he would appeal to his noble and learned Friend to withdraw his Motion. He deprecated his noble and learned Friend's proposal to refer this question to the Committee on Indian affairs which was about to sit. That Committee would not be precluded from inquiring into it. But, looking to the technical character of the matters involved, the Committee probably would not think it desirable to deal with them. He hoped, therefore, that his noble and learned Friend would be content with his assurance that the subject should receive the careful consideration of the Government, with a view to the redress of any grievances which might be proved to exist. With regard to the Return asked for by his noble and learned Friend, he might inform him that in the finance and revenue accounts of the Government of India a general statement would be found which would probably answer his noble and learned Friend's purpose. The Return asked for could not be obtained for a considerable time, and would involve a rather heavy expense, which he did not think ought to be incurred.

THE EARL OF KIMBERLEY
said, that if the Committee should think fit to inquire into the subject, all the information in the power of the Government would be afforded.

§ LORD FITZGERALD
said, that as he was satisfied with the assurances that had been given him by his noble Friend the Secretary of State for India that the question was under consideration, he had no objection to withdraw his Motion. 1617 But, in doing so, he must point out to their Lordships that the taxation of justice in. India was tenfold what it was in England.