Reclaiming Private Law in India: A New Column on Private and Commercial Law

WHAT IS PRIVATE LAW? In the broadest terms, it traditionally pertains to the body of law that regulates relations among individuals. The law of contract, torts, property and most commercial law are embodiments of private law. Juxtaposed against this, public law pertains to the relationship between individuals and the state—for example, constitutional law, administrative law, and criminal law.

While the government is party to public law dealings, in private law, the government’s role ideally is to purely facilitate horizontal dealings among private parties, ensuring the systems to enforce private law work effectively.

The state of judicial adjudication in India today is in the doldrums. Public law still seems to get a fair shake when citizens agitate it before the courts. Analogising, public law adjudication can be said to be in emergency care, while private law adjudication is in hospice.     

This, of course, is a broad generalisation. There may be contexts in which adjudication in private law may be quicker than in public law. As most practising lawyers will tell you, litigation in India has become a game of timing the courts and perpetualising interim relief. 

The price for that is ultimately paid for by each person in society. Think of that employer who withheld your salary, or the contractor who never showed up after taking a hefty advance, or the man who punctured your car’s tyres for parking in his spot. None of them would have been able to get away with it if we had a viable system in India to enforce private law rights. 

In an environment where private law adjudication in courts can take over five years on average, the process is the punishment. It is all too common for those who have leverage in dealings to get away with breaches of contract and duties. Only those with the fiscal and mental wherewithal are able to see litigation through in court.  

How Courts are dealing with Private Law adjudication

Courts of first instance, i.e. the trial courts, and High Courts in a few states, are where private law disputes are initiated. Private law disputes require full-fledged trials, involving the framing of issues, examination of witnesses, evidentiary proceedings, and final arguments.

In contrast, proceedings in public law (barring criminal law) generally follow a summary adjudicatory process—for example, writ petitions. There is no detailed evidentiary process, and courts need not permit the examination of witnesses. Matters are decided on the basis of the parties’ pleadings and documents, and arguments thereon.