What can Private Law Contribute to Indian Public Law?

Balu G Nair |

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Allan Beever’s contribution to the edited volume on ‘Rights and Private Law’ is titled, perhaps provocatively, ‘Our Most Fundamental Rights’. As one may guess from the title, Beever makes the claim that private law rights are as foundational as, if not more than, the rights commonly associated with public law. In order to illustrate his argument, he invites the reader to consider the social contract theory of Hobbes: imagine that all human beings come together in the state of nature (a point of time before the political institution of state had evolved) and agrees to constitute the state, which in turn can then formulate rules and prevent people from harming each other. What makes this arrangement possible, he argues, in the first place is the commitment to the private law value of being bound to something that one agrees to. Conceived this way, at least some private law values are antecedent to public law principles and institutions. To be clear, he does not argue that public law values are inferior or not equally foundational as private law values; instead, he calls upon private law theorists and practitioners to realise that private law is as foundational and fundamental as public law, something which is often forgotten.

What does Beever’s provocation mean for Indian law? It is well-known that private law has failed to garner the same kind of attention as public law within Indian legal scholarship. The focus of this post, though, is not to uncover the reasons which have relegated private law to a secondary status (at least in the popular imagination), but to reframe Beever’s provocation and pose it in the Indian context: how do we realise the strengths of private law and use it in more robustly in the Indian context?

Given the space constraints, I am going to locate my answer within the narrow frame of constitutional torts – an area of law where private law principles closely interact with public law.

What can private law contribute to the sphere of constitutional torts?

It is commonly acknowledged that a large percentage of claims for monetary compensation against government and its officers in India for their rights transgressions are brought through the public law route of writ jurisdiction, either at the level of the High Courts or the Supreme Court. This was not always the case in India; the constitutional tort jurisprudence took roots in India only in the early 1980s, with cases like Khatri, Rudul Sah, and MC Mehta laying the foundation for it. Till then, any claim for damages for administrative excesses had to be raised as a private law claim, with the cause of action usually being breach of statutory duty, negligence or trespass. The shift in judicial attitude, re-routing private law claims to the public track was brought about by a combination of factors, including the Court’s own need to overcome its flawed application of sovereign immunity, a broader rights consciousness in the post-Emergency era, among other things.

Despite the positive changes that constitutional tort remedy may have introduced, scholars have criticised (see here and here) its unprincipled growth in India, accusing it of giving a go-by to the basic principles of causation, fault, computation of damages, among others. The growing discontent within the scholarly circles has found resonance in the Supreme Court itself in Justice Nagarathna’s dissenting opinion in Kaushal Kishor  (see paragraphs 61 onwards of the dissenting opinion).

It is understandable as to why litigants may prefer the writ route over filing a civil suit. The shorter timeline of disposing off a writ as compared to a civil suit, minimal court fee, and the perceived superiority in competence and decision making, may all factor in the decision to prefer the public law route over private law. Nevertheless, there is a case to be made for private law to (re-) enter this conversation.

The main concern raised in relation to private law being used to address rights violations by the state is the lethargy and mistrust associated with the subordinate judiciary. Even if one were to admit this, the ends of corrective justice cannot be fully achieved without the involvement of private law. For one, since the inception of the public law compensation, the Supreme Court has maintained that public law compensation is merely palliative and interim in nature. The full extent of compensation must be recovered through the private law route, unless in exceptional cases where the constitutional court decides to provide full compensation. This has usually resulted in the higher judiciary not awarding the full extent of compensation that a victim of state atrocities may be eligible for. Administrative excesses in India are often life-changing for the victims – long periods of unlawful incarceration, custodial torture, and irreversible damage to the life and reputation being some of the most common after-effects. As the Supreme Court itself has observed, the sole practical remedy under these circumstances is compensation, as all other remedies would have become infructuous by the time the matter is adjudicated.

Another related concern with public law compensation is the disparity in the quantum of damages for similar violations or victims who are similarly placed. Here, the constitutional courts have sometimes tapped into private law, deploying the multiplier method to compute damages. But, this has been more the exception than the norm. Given that private law has much sharper tools to deal with questions of damages computation, it is well worth exploring the utility of private law to these matters.  

The lack of private law application also usually results in the chain of command, which enabled the rights violation to take place, not being unearthed. In a writ proceeding, the court is usually happy to fix the compensation at the level of the state and leave the task of holding the concerned officers accountable to another forum or proceeding, typically the departmental proceeding or a civil or criminal proceeding at the subordinate judiciary level or a combination of all these. A deeper, systemic change can only be ensured if one strikes at the deep roots of the malice, which public law is often unable to do.

The argument here is not that the High Courts and Supreme Court should stop admitting constitutional tort claims. Instead, the limited argument is that while the Supreme Court embraced private law by inaugurating the constitutional tort jurisprudence, it has not fully taken within its fold the true advantages of private law. Irrespective of the forum in which these claims against the state are adjudicated, it is important to realise the potential of damages remedy as a means of corrective jurisprudence, both in relation to holding the wrong-doer accountable and providing adequate compensation to the victim.

As Lord Denning noted in his Hamlyn Lecture in 1949 (which was quoted by the Supreme Court in its 1993 judgment in Nilabati Behera): “Just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the winning of freedom in the new age. They must be replaced by new and up to date machinery, by declarations, injunctions and actions for negligence”. To rephrase this, constitutional torts are no longer suitable enough for compensating victims of state excesses, they must be adequately substituted by the sidelined machinery of private law.

Looking ahead

I have used constitutional torts only to illustrate how private law could have a much more important say than what it has now, even in areas which have come to be predominantly associated with public law. There are several other areas where private law needs to play an equal, if not more dominant, role as compared to public law. This could relieve the constitutional courts of what are essentially civil disputes and enable them to focus on its core role as guardians of fundamental rights and federalism. For this to happen, one will have to reinvigorate some of the private law areas, like tort law, which have largely remained dormant in India.

Even in areas which might on first blush appear to be the sole domain of public law, private law has an important role to play. Take this example: in 2023, a movie director approached the Kerala High Court to curb the menace of negative reviews flooding social media upon the release of a movie. While there is a free speech angle to it, it is obvious that the movie makers are most worried about losing out on their profits as a result of negative reviews directing audience away from their movie. But, High Court is hardly the appropriate forum for determining these factual questions as to whether these negative reviews, if malicious and unfounded, did indeed take away their profits. A far more effective way to tackle this would be through private law causes of action such as ‘slander of title’ (the exact fit of this tort as a cause of action is for another post). Trying this matter through the public law route only leads to the writ courts ending up in positions where it has to act as a super regulatory authority, while not being able to get into the granular details of the specific facts at hand. This is an unnecessary digression, especially when the constitutional courts have far more pressing issues of civil liberties at hand. To be clear, I am not arguing that negative reviews are a real concern in the first place which need to be regulated; just that if they are indeed targeted and malicious and made with a view to disrupt the producer’s business, there are more effective and appropriate tools to deal with it.

It is true that the boundary between public and private law is difficult to discern, as discussed in detail in another post on this blog. And it is equally true that both the examples given above have significant public law angles too. But, the overwhelming influence of public law within India’s adjudicatory process has made us oblivious to the many useful roles that private law can play, while freeing up public law for its more urgent tasks. As Allan Beever said: “Human rights law is the ambulance at the bottom of the cliff. We need it in part because the fence at the top, constructed in no small part by the private law, has been torn down.” While we very much need the ambulance when things are dire, it should not come at the cost of ignoring the fence that we are supposed to maintain.