Public Law versus Private Law

Picture a long-distance train. Two passengers quarrel over a berth: that is a dispute between equals, and the railway is only the umpire, as in private law. The ticket examiner fines a passenger travelling without a ticket, and the railway lays down rules for the whole network: here authority runs from above, as in public law. But the railway also sells you a ticket, which is an ordinary contract, and the pantry car is run by a private caterer feeding thousands under a public licence. Is the caterer's refusal to serve you a private matter or a public one? The division is ancient, useful and never quite clean. Note 8 introduces it among the classifications of law; this note examines its theory, its critics and its blurring in Indian constitutional law.

1. The Roman Origin

The distinction comes from Roman law. Ulpian, in a passage placed at the head of Justinian's Digest and repeated in the Institutes, wrote: 'Publicum ius est quod ad statum rei Romanae spectat, privatum quod ad singulorum utilitatem': public law is that which concerns the state of the Roman commonwealth, private law that which concerns the interests of individuals. The test is the interest served. The Romans developed private law in extraordinary detail, and it is private law that the civil law systems of Europe inherited.

Roman jurists also said that ius publicum cannot be altered by private agreement (Papinian: 'ius publicum privatorum pactis mutari non potest'). There 'public law' meant mandatory rules generally, many of them within private law itself: an early source of confusion.

2. Tests for Drawing the Line

The interest test

Ulpian's test asks whose interest a rule serves. Almost every rule serves both: contract protects individual bargains and also the social interest in secure transactions.

The party test

Holland asked who the parties are: where the State is one, the law is public. The test is simple but over-inclusive: when the State buys paper or hires a building it acts like any private person and is governed by contract and tort. Saying that only the State acting in a public capacity counts brings back the question to be answered.

The relationship test

A third test looks to the character of the relationship. Private law governs relations of coordination between equals, created largely by their own will; public law governs relations of subordination, in which one party can bind the other unilaterally by command, licence, tax or sanction. This is the most useful test and the one Kelsen attacked.

Salmond's public law, divided mainly into constitutional and administrative law, covers what specially concerns the State; the residue is private. Criminal law is placed in public law because crime is a wrong against the community, prosecuted in the State's name (Note 8).

3. Kelsen's Critique

Kelsen denied that there is any difference in kind between public and private law. Every legal relation, whether a sale or a tax assessment, is a relation created by the legal order, and since the State is simply that order personified (Note 39), all law is in this sense State law. A contract binds only because the legal order authorises parties to create norms for themselves; an administrative order binds only because the legal order authorises an official to create a norm for another.

The real difference, Kelsen said, lies in the method of creating norms. In private law the norm is created autonomously, with the participation of those bound, as in a contract: a democratic method. In public law it is created heteronomously, by a unilateral act of an organ: an autocratic method. The absolute opposition of the two is therefore ideological. It suggests that the public sphere is a realm of political power free of legal constraint. Kelsen's reply serves the rule of law: if government action is law-creation under authorising norms, it is as open to legal control as a contract.

The common law tradition reached a related suspicion by a different road. Dicey (Note 40) insisted that officials answer for unlawful acts in the ordinary courts under the ordinary law, and contrasted this with the French droit administratif, with its separate administrative courts headed by the Conseil d'Etat. English law later developed a distinct public law all the same: in O'Reilly v Mackman (House of Lords, 1983) it held that challenges to public law decisions should ordinarily proceed by judicial review rather than by ordinary action.

4. Why the Line Matters in India

The division has practical consequences. Remedy: a public law wrong is corrected by writ under Arts. 32 and 226, on affidavits; a private law wrong by civil suit. Standards: public bodies must act fairly, reasonably and without arbitrariness even in contract (R.D. Shetty, Note 39), while private parties may contract with whom they please. Rights: fundamental rights in general bind the State, so the question whether a body is 'the State' under Art. 12 decides whether Part III applies at all (Note 39 traces the instrumentality tests from Rajasthan SEB to Pradeep Kumar Biswas). Liability: the State's liability in tort was long limited by sovereign immunity (Kasturi Lal, 1965), while public law liability for breach of fundamental rights is not.

5. The Blurring Divide

Writs against private bodies performing public functions

Art. 12 limits Part III, but Art. 226 empowers High Courts to issue writs to any person or authority, words wider than 'the State'. The Supreme Court has held that a writ may issue to a private body when it performs a public duty and the matter has a public law element.

Horizontal application of fundamental rights

Some rights were always horizontal, binding private persons: Art. 15(2) (access to shops, hotels and public places), Art. 17 (untouchability), Art. 23 (forced labour) and Art. 24 (child labour in factories). In People's Union for Democratic Rights v Union of India (1982), the Asiad workers case, the Court held Art. 23 enforceable against private contractors and treated payment below the minimum wage as forced labour. Kaushal Kishor v State of Uttar Pradesh (2023, 5 judges) went further: the majority held that rights under Arts. 19 and 21 can be enforced even against persons other than the State and its instrumentalities (Note 39).

Public law compensation

In Rudul Sah v State of Bihar (1983), a man detained for over fourteen years after his acquittal was awarded compensation in a writ petition under Art. 32. The principle was placed on a clear footing a decade later.

6. Evaluation

The distinction survives because it tracks something real: the difference between power exercised over people and relations entered into among them. But it is best seen as a spectrum rather than a wall. Privatisation places private bodies in public roles, consumer and labour law carry public purposes into private relations, and the State itself contracts and trades. Kelsen was right that the dualism can serve ideology, for it can shield either government or private power from scrutiny. Indian law now asks a functional question rather than a formal one: not who the body is, but what function it performs and whether the decision has a public law element.

7. Frequently Asked Questions

Q. Is criminal law public or private law?
A. Public law. A crime is treated as a wrong against the community, prosecuted by the State in its own name, even though an individual is usually the immediate victim.

Q. Can a writ issue against a private company?
A. Only if it performs a public function and the dispute has a public law element (Binny Ltd, 2005). A private body discharging public duties, such as an aided college (Rudani, 1989) or the BCCI (Zee Telefilms, 2005), is amenable to Art. 226 though not 'the State' under Art. 12.

Q. Why did Kelsen reject the public and private law distinction?
A. Because all law is created by the one legal order that the State personifies. The only real difference is the method of creating norms, autonomous in contract and heteronomous in public law, and treating the two as opposites wrongly suggests that public power stands outside law.

See also: Note 8 (classification of law), Note 39 (State and law: Art. 12), Note 12 (Kelsen), Note 40 (rule of law), Note 45 (fundamental rights), Note 84 (civil versus criminal liability), Note 114 (civil law versus criminal law).