Shifting Sands and Pyrrhic Victories – The Case of India
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Pursuing civil litigation in India can be an expensive, uncertain and protracted process. Court fees vary across the country, and can be very high (for example, 10% of the suit value) and even if a plaintiff is successful, the court will not always award costs in her favour. An understaffed judiciary ensures that cases may take years to be finally decided. This article considers costs and fees under two broad heads – court fees, and all other fees (such as attorney fees). India’s Code of Civil Procedure vests deciding courts with the discretion to decide how costs are to be awarded, and requires them to give reasons in case courts choose not to allow costs “following the event,” thereby suggesting that the legislative imperative was for costs to be shifted to the loser. In practice, though, courts rarely so shift costs completely, indicating a significant disconnect between what the statute intended and what is actually practiced by courts. These twin features of cost and fee allocation in India are the inspiration for the title of this article.