ABSTRACT
… 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 …
Abeyratne, Rehan, Ordinary Wrongs as Constitutional Rights: The Public Law Model of Torts in South Asia (June 20, 2019). 54 Texas International Law Journal (2019) (forthcoming).
First posted 2019-06-23 08:13:45
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