Civil and Criminal Liability

Yesterday night, I lay awake thinking about this post.  I decided that I had to rush to clarify whether I was talking about civil or criminal liability becauase someone would jump up and down* and point out the difference. Too late! I see that Ritwik is already jumping up and down in the comments.

I am not a lawyer**, so I’ll probably make many mistakes in this post, but here is a quick note about terminology:

If you set fire to a person intending to kill him, it is murder. It is a criminal offence. The police will prosecute you, and you will hang or go to jail.

If you set fire to a shop and someone who is inside dies, it is culpable homicide not amounting to murder. It is still a criminal act. The police will still prosecute you, but you will get a smaller sentence than in the first case.

If you run a theatre and do something extremely stupid – like run an explosives factory in the premises, then you are negligient. This is also a criminal act. The police will prosecute you, and you will get a smaller sentence than in the first two cases. This is what the Ansals were found guilty of, and the  court’s finding seems right to me. The real problem is that under the penal code, the maximum penalty is only two years, and I think that under Indian laws, sentences run concurrently – i.e. you can’t sentence them to 59*2 = 118 years of imprisonment. (Of course, the real real scandal is that it takes ten years for even this.)

All three that we have seen so far are criminal offences – i.e. the government prosecutes you, you are innocent till proven guilty, you have to be proven guilty with proof beyond all reasonable doubt, and you can be sent to jail.

There is another class of crimes called civil trials. In civil trials, aggrieved parties prosecute you, the standard of proof required is preponderence of evidence, (a lower standard) and generally you won’t be sent to jail, but you have to pay damages.

Strict Liability, as far as I know,*** makes sense only as a civil offence. Now, before you jump up and down again thinking that I am proposing to let off the Ansals with just a fine, no I am not.  The Ansals are already guilty of criminal behaviour. Civil prosecution will apply to only those whose culpability is not as great as that of the Ansals.  And punitive damages are a very good way to spread the pain, raise insurance costs and make sure that shareholders sit up and take notice.

Update: Oops – I realise that in my hurry, I missed the conclusion. Ritwik says that under Strict Liability, people will get prosecuted even for accidental fires. Of course, that is the point of Strict Liability – you are considered to have a fiduciary duty to ensure that there is no fire. The responsibility is on you. But at the same time, we shouldn’t prosecute them, but impose a civil liability.

* Just as the Jagadguru’s critics always jump up and down when making a  point.

**Which means that I should really consult the Cartel’s legal counsel.

***Once again, I am not a lawyer, so I do not claim to know too much.  It might make sense for Strict Liability to be imposed in criminal cases in some situations.

4 thoughts on “Civil and Criminal Liability

  1. Ravi,

    When implementing your approach, what can a cinema hall owner in a village do?

    S/He thinks the best precautions were taken because of the limited knowledge on safety measures. Subsequently, the precautions didn’t help and ppl die/get injured in that cinema hall due to a fire accident. Is s/he negligent and should be legally penalized? (I’m guessing ‘yes’ would be your answer).

    To avoid this, what can that owner do? Hire someone who provides that service, Fire-Avoidance-Service. Now, generally speaking, would such a service providing organization agree to take full responsibility in case of failure? That is, in case there is a fire, can affected party can sue the service provider rather than the service provider? Or should they sue both of them? I don’t know the answers. If the theater owner (after signing up for such a service) is still liable for the accident, what can be possibly done by the owner to avoid it. The owner needs to know who is the “right” service provider or needs to negotiate the “right” contract with the service provider or needs some other service which provides a rating of service providers allowing him to pick the “right” one. Correct?

    If this is how the implementation is going to be, there are enough links in this process where bribery is possible and where process based decision making (rather than result based liablities). Aren’t they?

  2. Apologies of innumerable mistakes in my previous comment. I’m certain you’d correct them as you read!


  3. Ravi,

    for strict liability to have a useful deterrent effect, court cases would have to be cleared in non-atrocious timeframes. Which is not happening right now.

    Given that strict liability is not useful without a speedy judicial system, but neither is rules/ checklist-based regulation, is there a reason to prefer one over the other given the current state of the Real World?

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