The basis of civil rights in many cases is a contract or agreement between the parties. The remedy for their breach is a civil remedy. There are remedies at civil law which do not originate from breach of any agreement. They relate to rights which originate otherwise than from an agreement.
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There are rights under the Constitution such as the right to a reasonable opportunity to show cause against dismissal, removal or reduction in rank in civil service under a State or the Union, before any such action is taken. The denial of such a right would be a wrong. The remedy against such wrong would lie under the civil law.
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There are civil rights which originate neither from any statute nor from any contract or agreement nor from any custom having the force of law but are of a character implied or inherent. Thus, if you are knocked down by the negligence of a person and sustain an injury, you have two remedies one for damages or compensation at civil law from the person who has knocked you down and the other at criminal law for punishing that person for the wrong you have suffered in the injury you have sustained.
Such a wrong when you seek a civil remedy for it, is known as a tort. Such right to compensation is not born from an agreement nor does it flow from a statute but it is enforceable through a civil suit determined or regulated by procedure prescribed under the civil law.
It is a right against a specific individual. A tort differs from a crime both in principle and in procedure. The former is an injury or breach of duty to an individual or individuals for which he is or they are entitled to get reparation from the wrong-doer, while the latter is regarded as a breach of duty to the public as a whole for which the offender is punished by the society or the State.
Salmond says that crimes are public wrongs while civil wrongs are private wrongs. A crime is deemed harmful to society in general though its immediate victim is an individual. Murder ends an individual’s life but is public wrong for the disregard of human life inherent in it distinctly harmful to society in general.
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An injury becomes both a tort and a crime when it is a breach of both these duties, e.g., assault, libel, theft. There are instances when an injury is only regarded as a crime and not a tort. An obstruction of a highway is a public nuisance and is an offence, but unless the plaintiff has sustained special damage, no action lies for damages. On the other hand, an injury is only a tort and not a crime when it does not violate the public rights, e.g., an innocent or mistaken trespass on land.
Whether a certain conduct is worthy of punishment or reparation depends on social and legal policies. For example, slander is not punishable offence in England but it is so in India. Under Prohibition Acts, selling or drinking of liquor is a crime.
Thus, there is a difficulty of providing a more precise definition of tort or crime than that a tort is a wrong for which there lies an action for damages and a crime is a conduct that deserves punishment under law.
The second difference between a tort and a crime is that in former the wrong-doer has to compensate the aggrieved party at whose instance an action is brought but in latter the State is regarded as an injured party injured by wrong to the community and as such the proceedings against the guilty persons are initiated in the name of the State; and the offender is punished by it.
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Punishment of crimes is a function of the State and Criminal Courts cannot absolve themselves of the duty of administering justice merely because of the shortcomings of the prosecuting agency because it is not a litigation between two private parties.
Thus, the object of a civil action is private reparation and satisfaction: and that of a criminal prosecution is punishment in order to promote public interests by prevention of offence.
The above distinction is subject to certain qualifications. Sometimes in a civil action for a tort, damages are awarded as a measure of punishment and prevention, for example, in an action for seduction or for gross libel; and in criminal proceedings, the court may order to pay expenses or part or whole part of fine as compensation to the complainant or other injured party.
However, from the point of view of legal philosophy, the ultimate objects of civil and criminal remedies are not clearly severable. The award of damages also promotes public interests by prevention, and punishment may give satisfaction to the aggrieved party. It is rightly said, ‘the Civil Code is at bottom only and the Penal Code under another aspect’, ‘satisfaction is still more necessary to cause evils to cease. It tends to diminish the number of offenders.’