Author: Nishita Gupta, Symbiosis Law School, Pune

"The concept of seeking justice cannot be equated with the value of dollars."

- Justice Blackmun in Jackson v Bishop

In today’s world where everyone is tied up in legal problems of their own, the skyrocketing costs associated with the legal process acts as a wall which prohibits the indigent person from seeking justice. An indigent person, legally, is defined as an individual who does not have adequate means to pay the court fees, however, excluding the property that is exempted from attachment under Section 60(1) of the Civil Procedure Code. 

Access to justice at times seems like a far-fetched process for everyone but especially for people who are not well off. The constant delay in case resolution and unnecessary appeals that slow down the outcome of the case add to the hardships faced by the people. Even middle-class individuals who have a regular source of income sometimes find it extremely difficult to approach the court for their case, let alone the inefficiencies of the government and sometimes the frequent appearances in the court which add to the burden faced by people. “Ubi jus ibi remedium” is a famous legal maxim which states that “wherever there is a right there is a remedy”. However, in multiple cases, this right is very difficult to access due to the long-standing struggles faced by people due to the hidden costs that litigation contains. For this purpose, under Order XXXIII and Order XLIV of the CPC along with Article 39A of the Constitution lays down provisions to safeguard the rights of indigent persons by allowing them to file suits and appeals without furnishing the court fees. 

The Civil Procedure Code indeed lays down the provisions for the protection of rights of indigent persons and the intention is to alleviate the burden from them. However, there is a wide gap between the theoretical promise of access to justice for indigent persons and the on-ground reality they face in optimally utilizing these legal provisions to their benefit. The practical implementation is marred by procedural barriers. The extensive inquiries conducted to prove indigency causes delay in filing the suit and also further increases the hardship for the people. Moreover, the need for re-verification of indigency at the time of filing appeal creates redundancy and discourages honest litigants to continue with their appeal. The lack of clear guidelines also results in disparity in judicial decisions. The judiciary faces both ethical and administrative difficulties due to candidates who fabricate indigence to obtain fee exemptions. Judicial authorities need to maintain precise equilibrium between protecting real claims while stopping misuse of welfare provisions because system abuse causes distrust in public welfare programs designed to assist needy people.

Most indigent persons are unaware about their legal rights and struggle to understand the process of filing suits and appeals. This lack of awareness further adds to the lack of effectiveness of these provisions designed to empower them. Furthermore, sometimes, initial court fees are waived off for indigent litigants however upon winning a case, they may be required to pay the deferred fees. This indeed creates financial burden post litigation for economically disadvantaged individuals.

The purpose of this research article is to analyse and explore the laws pertaining to the suits by and against the indigent persons, while also exploring the criticisms and challenges faced by them in the judicial system. The article seeks to analyse and examine the effectiveness of these provisions as to how well have they fulfilled the intended purpose of the provisions. Furthermore, the article explores feasible solutions and recommendations to overcome these practical barriers making it more efficient and ensuring these legal mechanisms facilitate in providing justice to indigent individuals.

It is the state’s duty to provide a lawyer for anyone who cannot afford to hire one due to lack of funds. So, the Order XXXIII of CPC enables and provides a solution to these unnecessary hardships as it focused on making justice accessible to people and bringing them to an equal footing. This ensures that persons can pursue their cases without the burden of paying the court fees upfront.

Order 33 of the Civil Procedure Code talks about “suits by an indigent person”. As per Rule 1, An indigent person is an individual who cannot afford to pay the court fees which might restrict the person from knocking the doors of the court for justice. If there are no specific court fees, any person who has a property of worth less than Rs 1000 will be considered to be indigent. The court has the power to either accept the application or reject it based on the merits and evidence provided by the applicant. In case, the applicant loses the suit, the court fees are usually borne by the applicant itself. If the application for a person to be indigent is rejected by a lower court, the person can appeal in the higher court for its acceptance. 

If the person acquires any property post the application of suit and before the judgement of the court, that will be considered while determining the status of their indigency. When a plaintiff is a representative of someone and files a suit on someone else's behalf, their indigency is based on the means of the entity they represent, not the individual.

If the person is capable of converting his property and possessions into cash without any difficulties and delay to clear the court fees, he would not be considered as an indigent person. Rule 1A  provides an opportunity to the person who cannot afford to file a case and pay the court fees. However, to prove indigency, the court conducts thorough inquiry to confirm that the individual actually does not have the means to pay. The initial inquiry is carried out by the Chief Ministerial Officer of the court. The court may conduct its own inquiry if it is not content with the officer’s report. However, the status of this application is not permanent and can be reviewed and changed based on the financial condition of the individual during the court proceedings.

Each individual in order to claim that he is an indigent person has to file a proper application in the court. The details and the estimated value of each of his properties must be attached as an annexure along with the application which would be verified by the applicant itself as laid down in Rule 2. 

It is at the court's discretion to either accept or reject the application. In order to initiate a case without having to pay court fees, an indigent party must petition for an exemption from the court. A thorough complaint and a list of the applicant's assets, both movable and immovable, signed and validated in compliance with Order VI Rule 14 and 15 should be included with this application. The court may examine the applicant to confirm the claim and evaluate their financial status after it has been presented, either by them or through a representative.

Rule 3 lays down the provisions for the mode of presentation of the application and Rule 4 further explains the process of examination of the applicant by the court of a commission established by a court.

Rule 5 specifies the conditions in which an application of an indigent person be rejected. Firstly if the applicant misrepresents him as an indigent person, secondly If the petitioner is determined to have fraudulently disposed of property within two months of filing, for example, the court may reject the application. Thirdly, there is no cause of action mentioned in the application, fourthly, the applicant entered into an agreement where another person gained an interest in the suit’s subject matter., fifthly, the suit is barred by any prevailing law and lastly if any other person is financing the litigation for the applicant.

Rule 6 specifies when the person has to present evidence from the applicant if their application is not rejected. Further Rule 7 lays down the provisions for the procedure at the hearing. 

Rule 8 says that once the application is admitted, it is numbered and registered as a plaint and it is considered as a regular suit. Rule 9 lays down when the court can withdraw the permission of an indigent suit. It is when the plaintiff is guilty of vexatious or improper conduct, if the financial condition of the plaintiff improves or the defendant or government pleader after giving 7 days of notice applies for withdrawals. If a person is allowed to sue as an indigent individual, he is ultimately responsible for the court fees that are due and is obliged to pay if the applicant loses the case. However, if the verdict of the court is in the favour of the applicant, the amount of the court fees would be calculated and that will be recoverable by the state. Also, according to Order 33, Rule 9 of the CPC, if during the proceedings it is found that the person is not indigent or has gained property, he would be obliged to clear the dues as if he was not granted the status of an indigent. 

Rule 10 and 11 explain the costs in such suits. If an indigent person succeeds, they are liable to pay the court fees as if they were not indigent and it is recovered by the losing party. If the indigent applicant loses or the suit is dismissed, they will be required by the plaintiff to pay the fees. 

Any expense that is incurred towards litigation and the court orders for one party to pay the other are costs for legal proceedings. The discretion is upon the court to decide who would bear the cost of litigation. The payable court fees by an indigent person are only deferred and not surrendered completely.  It is merely a provision that allows a person to not pay the court fees upfront, but just postpone the payment. The court decided that failure to pay the court fee within the stipulated time frame renders an appeal or leave to appeal as a pauper void. When assessing indigency, factors such as financial assistance, work status, income, assets free of debt, and total debt are taken into account. 

The Allahabad High Court addressed an incident where the plaintiff's suit was partially successful. The court noted that whereas Rule X of Order XXXIII deals with full success for indigent plaintiffs and Rule XI with their failure, there is no special provision for partial success. According to the plaintiff and defendant's varying degrees of success, the court recommended splitting the costs in these kinds of instances. In light of this, the plaintiff is responsible for paying the full court fee in the event of a partial victory, a proportionate amount in the event of a complete victory, and the full court charge in the event of a complete failure.

Rule 9A talks about the assignment of a pleader by the high court with the approval of the state government and they can make rules related to the selection of pleaders, the facilities that are to be provided to them and any other provisions required.

What is meant by "sufficient means" is the ability of an individual to raise capital in the course of their daily life. In the case of Chayamani Tripathy and another v Dharmananda Pandas, it has been held that "term 'not possessed of sufficient means' to enable him to pay the fee prescribed is the requirement for permission to sue as an indigent person."

Rule 14 lays down that the court is required to send a copy of the decree to the collector who will be allowed to recover the amount or property as arrears. 

After submission, the applicant's indigence is ascertained by the court through an investigation, evidence review, and argumentation. The application is filed and regarded as a formal complaint in the lawsuit if the court grants the request. The guidelines governing indigent litigants' claims also apply to appeals. An indigent person may request to be considered an indigent person if they would like to appeal but are unable to pay the court fee. If this application is denied by the court, the applicant may be given a window of time to pay the court fee; in that case, the appeal will proceed as though the fee had been paid in the first place.

Rule 15 lays down that the applicant is not allowed to file another indigency application for the same cause of action and in case the plaintiff is unable to pay the state government and opposite parties' cost then the plaintiff will be rejected.

Rule 15A allows the applicant to pay the court fees in due time and the suit is deemed to be filed as on the date of indigency application was initially filed. Rule 17 says that rules that apply to an indigent plaintiff are also applicable to an indigent defendant. Further in rule 18, the central government can make supplementary provisions for free legal services and to what extent the free services can be provided it is decided. 

If the petitioner is determined to have fraudulently disposed of property within two months of filing, for example, the court may reject the application. After submission, the applicant's indigence is ascertained by the court through an investigation, evidence review, and argumentation. The application is filed and regarded as a formal complaint in the lawsuit if the court grants the request. The guidelines governing indigent litigants' claims also apply to appeals. An indigent person may request to be considered an indigent person if they would like to appeal but are unable to pay the court fee. If this application is denied by the court, the applicant may be given a window of time to pay the court fee; in that case, the appeal will proceed as though the fee had been paid in the first place.

According to the 240^th Law Commission reportOne major issue that was highlighted was the inefficiency of the legal system as the cases are long and delayed which increases the cost of litigation sometimes even more than what they could receive as compensation. In Vinod Seth v Devinder Bajaj, the court emphasized that the costs of the litigation should not make a person averse from a genuine claim or someone from a weaker section should never be hesitant to approach the court. Also, the increase in costs has led to frivolous lawsuits which add onto the hindrance in the case.

An application can be filed by any person be it natural or juristic, all of which falls under the ambit of Order XXXIII of CPC. A person who has enough means of income and property with which he can afford the court fees, he would not be categorised as an indigent person. However, at the same time, the court has multiple times emphasized that access to justice cannot and should not be hindered just because the person does not have enough funds to file a lawsuit.

Section 13 of the limitation act plays an important role wherein the time taken by an applicant to file a suit as an indigent person is not calculated in the time to file the suit, as an act of good faith. It was decided that the court could extend deadlines under Section 13 of the Limitation Act, but only if the petitioner had presented the claim as a pauper in good faith. The appellant was a weaver, and it was decided that while determining their ability to pay court fees, their weaving gear and daily salary shouldn't be taken into account as assets. As a result, the appellant was found to be poor and qualified to file a lawsuit. The court ruled that in order to prevent poverty from impeding an applicant's ability to access justice, a comprehensive investigation into the applicant's poverty must be conducted. Additionally, courts should take a lenient stance while reviewing such applications.

According to International Law, like the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR), recognise the right to receive justice. These agreements require states to guarantee that everyone has access to an efficient remedy through qualified judicial authorities, irrespective of their financial situation.For instance, under Article 14(3)(d) of the ICCPRIndigent people who are charged with a crime are entitled to free legal representation if they are unable to pay for it. Although this clause relates primarily to criminal proceedings, since access to justice is a fundamental right, the idea also applies to civil situations.

In the 1979 decision of Airey v. IrelandThe European Court of Human Rights ruled that, in civil matters where it is essential to guarantee efficient access to the courts, the right to a fair trial under Article 6 of the European Convention on Human Rights includes the provision of legal assistance. The concept of poor people's access to justice in Europe has been greatly influenced by this ruling.

In Mohammed v. Ministry of Defence, the UK Supreme Court emphasised that denying impoverished people the chance to pursue their claims because of financial limitations is a violation of their basic right to access justice. The court further stressed that it is the state's duty to guarantee that systems are in place to enable justice.

In the United States of America, the principle of in forma pauperis permits low-income individuals to bring legal actions in the US without having to pay court costs. The procedure is really simple: the applicant produces an affidavit outlining their financial circumstances, and the court waives the application fees if it determines that the petitioner is in fact destitute. The ability to access the courts has also been viewed by the U.S. Supreme Court as a crucial component of due process as guaranteed by the Fourteenth Amendment. Even in the United Kingdom, people who cannot afford legal representation, offer financial aid through the Civil Legal Aid system. The system includes options for waiving court fees for destitute individuals, even if its primary goal is to provide legal aid for representation. 

The right to access justice is expressly guaranteed under the South African Constitution as well. Indigent people are entitled to legal representation in both civil and criminal cases under the Legal Aid South Africa Act of 2014. The system is well-designed, with a focus on making sure that those in need of financial assistance can approach the courts without difficulty. This shows how the world is progressing while ensuring the rights of the weaker sections of the society are also taken care of. 

It can be a laborious and invasive process to prove indigence. To prove indigence, an inquiry is scheduled to establish the authenticity of the application. Considering there are no clear guidelines laid down to be looked at in order to establish a person’s indigence, it is inconsistent and depends on courts, while some may follow stricter parameters while others don’t, due to which the intent behind the law is not followed.

Due to lack of awareness, and the fact that people are unaware that a suit can be filed without court fees if they are able to prove indigency, this restrains prospective plaintiffs from filing a suit. As there are multiple and a lengthy process for the people who are financially restrained to file a suit, the likelihood for the applicant to withdraw their complaint is much higher and they suffer because of delays.

The requirement for legal aid can not just be necessarily fulfilled by foregoing court fees but it also has to be accompanied by providing the poor litigants with competent advocates of legal representation. In reality, there are hardly any good legal professions who accept cases on pro gratis basis and while they mind finding advocates, they might not be competent enough to fight a case which leaves them with a disadvantage especially when they are against powerful and influential people. With all these reasons, it will be extremely difficult for individuals who are poor to actually access the court.

A number of recommendations can be made to improve the efficiency of the judicial system overseeing cases brought by the poor and to guarantee actual access to justice.

The problems stated above stem from the loopholes in the legislative framework. To oversee and to guarantee that justice can be made accessible to poor litigants, it is imperative to look at possible solutions and recommendations. 

Firstly, standardized guidelines and criterias must be established to ensure that all courts are following those parameters to prove indigency. This not only simplifies the work of the officers in-charge but also gives an idea to the litigants about the documents or proof required from their end to exempt them from court fees without causing much hassle and delay. Public awareness should also be one of the key agendas of the government so that poor litigants know about their rights and duties and justice is accessible to people even when they don’t have enough funds.

While actual litigants who are in need of these laws are not able to benefit from it, people who are well off have been taking advantage of such provision for a long. It is imperative that this is curbed by imposing strong repercussions like hefty fines to ensure there is no unnecessary litigation and wastage of time for the court while also ensuring that the needy are served. Further, as the times are evolving and Alternative Dispute Mechanisms have come into existence and are as effective as traditional methods, incorporation of subsidized fees of ADR services for the indigent persons will offer a quicker and proactive approach towards resolving a dispute in an economical manner. This will also reduce influx of cases in the courts and maintain a balance between the contemporary and traditional forms of methods to access justice.

Lastly, feedback and review of the process of application and laws in itself should be reviewed time and again to ensure that it is updated and functional at the same time. The number of people applying for indigency and the suits filed should be compared to how many were resolved by the court. This data will ensure that implementation and the legal framework be improved which will ensure rights to individuals and improve accessibility to justice.

Order XXXIII of civil procedure code lays down the provisions for indigent persons to file suits. The intention of the legislative framework is extremely bonafide and the intent is to provide justice to all people irrespective of their financial status. However much bonafide the provisions, it has been misused, and there have been multiple challenges faced by the poor litigants due to lack of clear guidelines on requisites to prove indigency, long duration of cases, lack of competent legal representation etc. These issues have mitigated the effectiveness of the provisions raising the needs for changes and standardization of guidelines. Implementing the solutions and recommendations above, will promote equality in accessing justice for the people and to exercise the rights without digging a hole in their pockets.

• Mohammed v. Ministry of Defence, [2014] EWCA Civ 1587 (Eng.)

• Tisha Roy, Civil Procedure Code: Order XXXIII: Suits by Indigent Person, 5 INDIAN J.L. & LEGAL RSCH. 1 (2023).

• Devrath Reddy Bollampally, A Detailed Study on Appeal by Indigent Person, 2 INDIAN J.L. & LEGAL RSCH. 1 (2021).

• George, James P. “Access to Justice, Costs, and Legal Aid.” The American Journal of Comparative Law, vol. 54, 2006, pp. 293–315. JSTOR, http://www.jstor.org/stable/20454541. Accessed 17 Aug. 2024.

• Hirte, Heribert A. “Access to the Courts for Indigent Persons: A Comparative Analysis of the Legal Framework in the United Kingdom, United States and Germany.” The International and Comparative Law Quarterly, vol. 40, no. 1, 1991, pp. 91–123. JSTOR, http://www.jstor.org/stable/760076. Accessed 17 Aug. 2024.

• Spangenberg, Robert L., and Marea L. Beeman. “Indigent Defense Systems in the United States.” Law and Contemporary Problems, vol. 58, no. 1, 1995, pp. 31–49. JSTOR, https://doi.org/10.2307/1192166. Accessed 17 Aug. 2024.

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