The Role of the Civil Courts

In one line

The civil courts protect human rights by granting declarations, injunctions, damages and specific relief in ordinary suits, and their contribution is large, unglamorous and limited by cost, delay and the requirement of a legal right.

What a civil court can do

Five remedies, and giving them by name is the substance of this chapter.

A declaration, that a person has a right or a status, or that an act is void.

An injunction, prohibitory or mandatory, restraining an interference or requiring an act. A mandatory injunction is the civil court's equivalent of mandamus and lies against private persons, which no writ except habeas corpus does.

Damages, for a wrong done, including for assault, false imprisonment, malicious prosecution, defamation and negligence.

Specific relief, including possession of property, and the setting aside of an instrument.

And interim relief, by temporary injunction, appointment of a receiver or attachment before judgment.

Where civil courts do human rights work

Six categories, and they show the scale.

Wrongful confinement by private persons, remedied by damages for false imprisonment, alongside the habeas corpus jurisdiction.

Assault and battery, including custodial assault, where a suit lies against the officer and the State.

Malicious prosecution, where a person has been prosecuted without reasonable cause and with malice.

Property and possession, where dispossession has occurred, which connects to the livelihood and shelter jurisprudence in [The Right to Livelihood].

Employment and service, where dismissal or denial of benefits is challenged.

And family matters, including maintenance, guardianship, restitution and protection from domestic violence, which is where a very large proportion of women's rights litigation actually happens.

The two structural advantages

They run against private persons. Part III binds the State under article 12, with four exceptions, so a violation by an employer, a landlord, a family or a neighbour is not a fundamental rights matter at all. A civil suit is the principal remedy against private violation, and that is the largest category of human rights violation in ordinary life.

And they try disputed facts. A writ court cannot take oral evidence or permit cross-examination and will relegate a case turning on disputed facts. A civil court is designed for exactly that, so a violation whose occurrence is denied can be established there and nowhere else.

The three structural limitations

Cost. Court fee is calculated on the value of the claim, an advocate is required in practice, and the suit must be sustained for years. For the categories of person this paper is about, all three are prohibitive.

Delay. A suit takes years at first instance and years more on appeal, and [The Right to a Speedy Trial] applies to the civil side with even greater force.