Shyamkrishna Balganesh, ‘The Constitutionalization of Indian Private Law’

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.

Balganesh, Shyamkrishna, The Constitutionalization of Indian Private Law (October 28, 2014). The Oxford Handbook of Indian Constitutional Law (Sujit Choudhry, Madhav Khosla and Pratap Mehta eds, 2016, forthcoming).

First posted 2015-06-15 06:59:25

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