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Report No. 189

Public law and private law divide

Rights which are breached may belong to private law or public law. The distinction between these two sets of rights is well known to students of constitutional law. Rights which exist as between one individual and another or even against the State can be private rights such as those arising out of contract or tort. Rights which are against the State or entities to which the function of State are assigned such as statutory corporations or autonomous public sector units are governed by the Constitution or are regulated by statutes which the Constitution permits to be framed so that the rights are regulated and balance is struck between individual rights on the one hand and public interest on the other. These are governed by public law principles.

For breach of private rights parties approach the ordinary Courts Civil or Criminal. There are offences which are committed by individuals against the individuals or the State or public entities. Barring a few where private action is permissible under the criminal law, the others are taken up by the State through its prosecution agencies so that law and order can be maintained. The State steps in because it is its duty to maintain law and order.

As to enforcement of judgments, the superior Courts have powers under the Constitution, and under the Contempt Laws to take penal action if their orders are not complied with by the Executive authority. Further, the Constitution provides that the Government shall act in aid of the Supreme Court of India. Thus, it is clear that the person whose constitutional or statutory rights are violated has 'access' to the Constitutional Courts, namely, the High Court and the Supreme Court.

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