Ordinary Wrongs as Constitutional Rights: The Public Law Model of Torts in South Asia

Abstract

Open any tort law textbook in South Asia and two things are immediately apparent. The first is the degree to which the doctrine overlaps with British tort law. The causes of actions, the principles of liability, and the elements are almost identical to the corresponding torts in the UK. The second, and perhaps more surprising, feature is the degree to which British cases are used to illustrate these torts. While some local cases might be cited, they rarely move the relevant doctrine forward or acquire much authority as precedents in future cases. And this gets to the nub of the matter: there are few landmark precedents because South Asian courts do not produce many tort judgments.

While private tort law has remained stillborn in South Asia, constitutional law in the region has blossomed. In the 1980s and 90s, the Indian Supreme Court vastly expanded its constitutional jurisdiction through a series of procedural innovations known as Public Interest Litigation (PIL), which has been emulated across the region.

This article examines how, under the guise of PIL, courts in India, Sri Lanka, and Bangladesh have brought large swathes of private law – tort law especially – into the realm of public law. The article analyzes the doctrinal moves through which this process took place and advances two novel claims. First, contrary to the conventional wisdom, it argues that tort law has developed substantially in South Asia since the 1980s, but through a sui generis, public law model that is distinct from the traditional, private law model. Second, after weighing the costs and benefits of this model, the article concludes that for procedural, normative, and institutional reasons, the model is deeply problematic and fails to fill the vacuum that has been created by the absence of private torts.

At a broader level, the article makes an important contribution to the comparative constitutional law literature. There is much scholarship on the horizontal application of rights – the extension of constitutional law to cases in which the state is not a party – but it mostly concerns Germany, Canada, and South Africa. This article seeks to demonstrate that, in contrast to these jurisdictions, private law in South Asia has not simply been affected by constitutional law. Rather, courts have converted tort claims into sweeping constitutional rights claims, without the caution or incrementalism of other jurisdictions.

Keywords: Torts, Constitutional Rights, South Asia, South Asian Constitutionalism, Public Interest Litigation