Displacing Private Law: The Growing Dominance of Public Law in South Asia

This article examines how private law has been displaced across four South Asian: India, Pakistan, Bangladesh, and Sri Lanka. As courts in these jurisdictions have recognized a greater number of rights within the sphere of public constitutional law, there has been a corresponding displacement of private law. Indeed, some areas of private law, such as torts, have almost become defunct. And when courts adjudicate on matters of private law, they increasingly employ the language of fundamental rights, if not always invoking the constitutional text. As a result, straightforward private law cases have been made unnecessarily complex and have distorted constitutional law doctrine. I argue that the manner in which public law has enveloped private law raises serious concerns for the judicial process in these countries, including: (1) weakening procedural rules; (2) producing unenforceable judicial standards; and (3), diminishing lower court capacity and reputation.