Public Law and Private Law Remedies Compared: The Forum, the Standard and the Boundary Between Them

A person aggrieved by the State may proceed in two quite different ways. He may sue in the civil court on a cause of action the ordinary law recognises, asserting a contract, a tort, a title or a debt, and he will be treated much as he would be against a private defendant. Or he may move the writ court in public law, asserting not a private right but that a public authority has acted unlawfully or in violation of a fundamental right. The two differ in forum, procedure, standard, remedy and time, and the choice is not free: some claims lie only in one, others in the other, and a substantial middle ground has produced a long line of cases about which claims may be brought in public law. This topic sets out that comparison and the boundary.

1. The Comparison

Basis	Private law remedy	Public law remedy
Forum	Civil court, consumer forum, tribunal	High Court or Supreme Court under Articles 226 and 32
Foundation	A private right: contract, tort, property, statute	Unlawful exercise of public power, or violation of a fundamental right
Against whom	Any person, including the State	The State and bodies performing public functions
Procedure	Pleadings, discovery, evidence, cross-examination	Affidavits and the record; no trial
Disputed facts	Resolved on evidence	Not resolved; the petitioner is relegated
Standard applied	The ordinary law	Legality, fairness, reasonableness, constitutional standards
Remedy	Damages, declaration, injunction, possession, specific relief	Quashing, directions, compensation for breach of rights
Measure of money relief	Full compensation on assessment	Palliative and sometimes exemplary; not a computation of loss
Limitation	The Limitation Act applies	None prescribed; delay and laches apply
Notice requirements	Section 80 of the Code where the State is sued	Not applicable
Time to relief	Years	Months
Discretion to refuse	None once the claim is proved	Full; the remedy is discretionary throughout

2. Public Law Compensation for a Constitutional Wrong

📖 Chairman, Railway Board v. Chandrima Das, (2000) 2 SCC 465

Facts: A foreign national was raped by railway employees in a building belonging to the Railways. Proceedings were brought in the High Court under Article 226, which awarded compensation payable by the Railways. On appeal it was contended that the offence was committed by individual employees acting for their own purposes, that the claim was one in tort which should have been brought by suit, and that in any event a foreign national could not claim the benefit of the fundamental rights.

Held: The Supreme Court upheld the award. It held that the fundamental right to life under Article 21 is available to every person, citizen or not, since the Article uses the word person and not citizen, and that a foreign national is entitled to the protection of the guarantee while in India. It held that the claim was not merely a claim in tort to be relegated to a civil suit: where the violation of a fundamental right by the instrumentalities of the State is established, the remedy in public law is available, and the writ court may award compensation without requiring the claimant to pursue a suit. It held further that the employees were performing duties connected with the running of the establishment, and that the State could not escape liability by characterising their acts as personal, the Railways being liable for what was done by those it had placed in that position.

Ratio: Article 21 protects every person including a foreign national, and compensation for the violation of a fundamental right may be awarded in public law without relegating the claimant to a civil suit.

3. The Contractual Middle Ground

📖 ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd., (2004) 3 SCC 553

Facts: A claim under a policy issued by a government corporation was repudiated, and the insured moved the High Court under Article 226 rather than filing a suit. The High Court declined to entertain the petition on the ground that the dispute arose out of a contract and that the writ jurisdiction is unsuitable for contractual claims.

Held: The Supreme Court held that the High Court was wrong to decline on that ground and remitted the matter. It held that a writ petition is maintainable against an instrumentality of the State in a contractual matter, and that there is no absolute rule barring the jurisdiction merely because the dispute has its origin in a contract: where the action of the State or its instrumentality is arbitrary or unfair, Article 14 is attracted and the writ court may intervene. The Court held that the presence of disputed questions of fact is a reason for declining in a given case but is not an absolute bar, and that the High Court retains a discretion to entertain the petition where the facts are not seriously in dispute and relegation would serve no useful purpose. It emphasised that the jurisdiction is discretionary, so the question is whether it should be exercised rather than whether it exists.

Ratio: A writ petition is maintainable against an instrumentality of the State in a contractual matter where the action complained of is arbitrary or unfair. Disputed questions of fact are a reason for declining but not an absolute bar.

4. Which Remedy Fits the Claim

The claim	The remedy
Custodial death, torture or illegal detention	Public law; compensation without a suit (Chandrima Das)
An administrative order beyond power or procedurally unfair	Public law
Arbitrary repudiation of a claim by a State instrumentality	Public law may lie (ABL International), subject to discretion
Refusal to award a tender on announced criteria	Public law
Breach of an ordinary commercial contract with the State	Private law; a suit
Damages for a road accident caused by a government vehicle	Private law, or the statutory motor accident forum
Medical negligence in a government hospital	Private law or the consumer forum
Recovery of possession or title to property	Private law
A claim requiring assessment of substantial pecuniary loss	Private law, the public law award being palliative
A claim on seriously disputed facts requiring evidence	Private law

5. Where They Overlap

The same facts may found both. A custodial death gives rise to a public law claim, a suit in tort, a prosecution and departmental proceedings, and they proceed independently.
A public law award does not bar a suit, and courts expressly preserve the right to claim the balance in the ordinary forum.
Contractual matters are not excluded from public law, where the complaint is arbitrariness by an instrumentality of the State (ABL International).
Public law will not resolve disputed facts, and a claim turning on them will be relegated whatever its merits.
Delay affects both differently, the Limitation Act applying to a suit and laches to a petition.
The measure of relief differs, so a claimant needing full compensation must ordinarily sue even if a writ would lie.

6. The Practical Trade-Off

Advantage of public law	Advantage of private law
Quick; months rather than years	Full compensation, assessed on evidence
No court fee of consequence on the claim value	Disputed facts can be resolved
No requirement of notice under section 80	Witnesses can be examined and cross-examined
No limitation period prescribed	Relief is not discretionary once the claim is proved
Sovereign immunity is unavailable as a defence	The claim survives even where no fundamental right is engaged
Directions may be given for the future, not merely compensation	Execution machinery is available for a decree

⚠ Speed is bought at the price of quantum and proof

The choice between the two is usually a choice between getting something soon and getting everything eventually. Public law delivers relief in months, without court fees on the claim value, without notice under section 80, without limitation and without any answer of sovereign immunity; but the award is palliative rather than compensatory, the court will not hear evidence, and the whole remedy is discretionary, so a claimant may establish the wrong and still be refused. Private law delivers full compensation assessed on evidence, and delivers it as of right once the claim is proved; but it takes years, requires proof by witnesses, and leaves the older defences available. Claimants frequently take both routes in sequence, which the courts permit by preserving the right to claim the balance in the ordinary forum.

7. The Position in Summary

Private law remedies rest on a private right and are pursued by suit with evidence and full compensation; public law remedies rest on the unlawful exercise of public power and are pursued by petition on affidavits with discretionary relief.
Article 21 protects every person including a foreign national, and compensation for the violation of a fundamental right may be awarded in public law without relegating the claimant to a suit (Chandrima Das).
A writ petition is maintainable against an instrumentality of the State in a contractual matter where the action is arbitrary or unfair, disputed facts being a reason to decline rather than an absolute bar (ABL International).
The same facts may found both remedies, a public law award does not bar a suit for the balance, and the measure of relief differs materially between them.
The choice is a trade-off between speed, cost and the absence of defences on one side, and full compensation, proof by evidence and relief as of right on the other.

8. Related Topics and Provisions

Public Law Compensation (Topic 133) and Constitutional Tort (Topic 131).
Sovereign Immunity vs Constitutional Tort (Topic 137) and Sovereign vs Non-Sovereign Function (Topic 209).
Government Liability in Tort (Topic 132) and Liability for Negligence (Topic 135).
Government Contracts and Public Tenders (Topic 138): the contractual field in public law.
Judicial Review vs Appeal (Topic 201) and Alternative Remedy (Topic 189).
Constitution of India: Articles 14, 21, 32, 226 and 300; Code of Civil Procedure, 1908, section 80; Limitation Act, 1963.