<p>Recently, the Supreme Court of India made a statement: “It is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases”. This is not peculiar to India alone. A lot of other democracies, especially ones that follow a common law are experiencing but the ‘conversion’ as referred by the Supreme Court is peculiar to India.</p>.<p>In India, there is a specific division that is made at the time of litigation. There exists a dividing line between a civil case — which a common person will interpret as lengthy litigation and a criminal case — which a common person will interpret as a black mark on her status as a citizen (excluding the abnormal and deviations from the normative standard of a society).</p>.<p>In business, it is even more dangerous to have a criminal case against you because you fear the remand by law enforcement agencies which will endanger the business and family. This divide existed and exists for a reason — the cost of endangering the fundamental right to liberty and being under detention is far too high.</p>.<p>Thus the courts have typically set a high standard for a case to be brought before them and to start a ‘trial’. Nowhere in the Constitution do we find the dividing line of civil and criminal cases — it is specific statutes that bring in the criminality with them if they are deemed fit. Largely, the specific law apart from the solely beneficial laws — contains a civil aspect mixed with a criminal aspect. One cannot categorically say that the law prima facie is a civil matter.</p>.<p>Let us take the example of the Companies Act - 2013, which, from the face of it, looks benign but contains enough provisions to make a criminal case. If that was not enough, we have the 420 cases (as a common person would understand) i.e. the Section 420 of the Indian Penal Code (IPC) pertaining to ‘cheating’. This add-on which makes a litigant scratch her head over what exactly is the issue poses a larger problem if the court or a tribunal hearing the matter scratches its head. This is referred to as a maintainability matter.</p>.<p>Let us look at some statistics of the Supreme Court of India to get a better perspective. As of October 1, 2021, the SC had a total of 69,922 cases. About 51,581 matters are pending or admission i.e, for the court to determine whether there exists a case in the first place and 18,341 cases are at a hearing stage where the court has made its preliminary observation that there exists a point of law to be determined and the SC alone can do it.</p>.<p>Another data that we may look at is, matters that are being heard by larger benches (5,7,9 judges), the total of which stands at 421. Of this, 372 are connected matters, which means matters which appear in bunches because they contain the same issue or same person. It is apparent that roughly 73.76% of the cases are waiting at the door to be allowed entry. More worryingly, the judicial time of larger benches is taken by roughly 88.36% of the cases. This is a gross misuse of the judicial time which is revered and sacred.</p>.<p>The SC is right in saying that this tendency of mixing a criminal element into a civil case is exhausting the courts and the legal community must do something about it. One would ask: Are there no checkpoints at the lower judiciary to ensure a civil case is purely culled out, and the judge to decide on whether to nip a case in the bud by separating a civil case from a criminal case? This involves a participative action by the judiciary and law enforcement as the latter is the largest litigant.</p>.<p>The punishment laws laid down by the Indian Penal Code have been here for a century and a half. Civil law has been here for more than a century i.e, the Code of Civil Procedure 1908. But we still seem to fail to distinguish between the two. Should the Constitution of India intervene to set this right?</p>.<p>(The writer is a Legal Counsel)</p>.<p><strong>Watch the latest DH Videos here:</strong></p>
<p>Recently, the Supreme Court of India made a statement: “It is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases”. This is not peculiar to India alone. A lot of other democracies, especially ones that follow a common law are experiencing but the ‘conversion’ as referred by the Supreme Court is peculiar to India.</p>.<p>In India, there is a specific division that is made at the time of litigation. There exists a dividing line between a civil case — which a common person will interpret as lengthy litigation and a criminal case — which a common person will interpret as a black mark on her status as a citizen (excluding the abnormal and deviations from the normative standard of a society).</p>.<p>In business, it is even more dangerous to have a criminal case against you because you fear the remand by law enforcement agencies which will endanger the business and family. This divide existed and exists for a reason — the cost of endangering the fundamental right to liberty and being under detention is far too high.</p>.<p>Thus the courts have typically set a high standard for a case to be brought before them and to start a ‘trial’. Nowhere in the Constitution do we find the dividing line of civil and criminal cases — it is specific statutes that bring in the criminality with them if they are deemed fit. Largely, the specific law apart from the solely beneficial laws — contains a civil aspect mixed with a criminal aspect. One cannot categorically say that the law prima facie is a civil matter.</p>.<p>Let us take the example of the Companies Act - 2013, which, from the face of it, looks benign but contains enough provisions to make a criminal case. If that was not enough, we have the 420 cases (as a common person would understand) i.e. the Section 420 of the Indian Penal Code (IPC) pertaining to ‘cheating’. This add-on which makes a litigant scratch her head over what exactly is the issue poses a larger problem if the court or a tribunal hearing the matter scratches its head. This is referred to as a maintainability matter.</p>.<p>Let us look at some statistics of the Supreme Court of India to get a better perspective. As of October 1, 2021, the SC had a total of 69,922 cases. About 51,581 matters are pending or admission i.e, for the court to determine whether there exists a case in the first place and 18,341 cases are at a hearing stage where the court has made its preliminary observation that there exists a point of law to be determined and the SC alone can do it.</p>.<p>Another data that we may look at is, matters that are being heard by larger benches (5,7,9 judges), the total of which stands at 421. Of this, 372 are connected matters, which means matters which appear in bunches because they contain the same issue or same person. It is apparent that roughly 73.76% of the cases are waiting at the door to be allowed entry. More worryingly, the judicial time of larger benches is taken by roughly 88.36% of the cases. This is a gross misuse of the judicial time which is revered and sacred.</p>.<p>The SC is right in saying that this tendency of mixing a criminal element into a civil case is exhausting the courts and the legal community must do something about it. One would ask: Are there no checkpoints at the lower judiciary to ensure a civil case is purely culled out, and the judge to decide on whether to nip a case in the bud by separating a civil case from a criminal case? This involves a participative action by the judiciary and law enforcement as the latter is the largest litigant.</p>.<p>The punishment laws laid down by the Indian Penal Code have been here for a century and a half. Civil law has been here for more than a century i.e, the Code of Civil Procedure 1908. But we still seem to fail to distinguish between the two. Should the Constitution of India intervene to set this right?</p>.<p>(The writer is a Legal Counsel)</p>.<p><strong>Watch the latest DH Videos here:</strong></p>