The Constitutionalization of Indian Private Law

In THE OXFORD HANDBOOK OF THE INDIAN CONSTITUTION (Sujit Choudhry, Madhav Khosla & Pratap Banu Mehta eds., Oxford UP, 2016)

U of Penn Law School, Public Law Research Paper No. 15-15

16 Pages Posted: 14 Jun 2015 Last revised: 21 Sep 2016

Date Written: 2016

Abstract

In this Essay, I examine the interaction between Indian constitutional law and Indian tort law. Using the context of the Indian Supreme Court’s dramatic expansion of its fundamental rights jurisprudence over the last three decades, I argue that while the Court’s conscious and systematic effort to transcend the public law/private law divide and incorporate concepts and mechanisms from the latter into the former might have produced a few immediate and highly salient benefits for the public law side of the system, its long terms effects on India’s private law edifice have been devastating. The Court’s fusion of constitutional law and tort law has successfully cabined the independent efficacy, normativity, and analytical basis of equivalent private law claims in Indian lower courts. Coupled with the unique history of India’s various basic private law regimes, and the legal system’s concerted failure to strengthen these regimes after independence, the Court’s efforts have only served to undermine the overall legitimacy of India’s private law mechanisms.

Keywords: India, tort law, private law, writ jurisdiction

JEL Classification: K13

Suggested Citation

Balganesh, Shyamkrishna, The Constitutionalization of Indian Private Law (2016). In THE OXFORD HANDBOOK OF THE INDIAN CONSTITUTION (Sujit Choudhry, Madhav Khosla & Pratap Banu Mehta eds., Oxford UP, 2016); U of Penn Law School, Public Law Research Paper No. 15-15. Available at SSRN: https://ssrn.com/abstract=2617598

Shyamkrishna Balganesh (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
215-573-7780 (Phone)

HOME PAGE: http://sbalganesh.law.upenn.edu

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