WHAT IS PRIVATE LAW? In the broadest terms, it traditionally pertains to the body of law that regulates relations among individuals. The law of contract, torts, property and most commercial law are embodiments of private law. Juxtaposed against this, public law pertains to the relationship between individuals and the state—for example, constitutional law, administrative law, and criminal law.
While the government is party to public law dealings, in private law, the government’s role ideally is to purely facilitate horizontal dealings among private parties, ensuring the systems to enforce private law work effectively.
The state of judicial adjudication in India today is in the doldrums. Public law still seems to get a fair shake when citizens agitate it before the courts. Analogising, public law adjudication can be said to be in emergency care, while private law adjudication is in hospice.
This, of course, is a broad generalisation. There may be contexts in which adjudication in private law may be quicker than in public law. As most practising lawyers will tell you, litigation in India has become a game of timing the courts and perpetualising interim relief.
The price for that is ultimately paid for by each person in society. Think of that employer who withheld your salary, or the contractor who never showed up after taking a hefty advance, or the man who punctured your car’s tyres for parking in his spot. None of them would have been able to get away with it if we had a viable system in India to enforce private law rights.
In an environment where private law adjudication in courts can take over five years on average, the process is the punishment. It is all too common for those who have leverage in dealings to get away with breaches of contract and duties. Only those with the fiscal and mental wherewithal are able to see litigation through in court.
How Courts are dealing with Private Law adjudication
Courts of first instance, i.e. the trial courts, and High Courts in a few states, are where private law disputes are initiated. Private law disputes require full-fledged trials, involving the framing of issues, examination of witnesses, evidentiary proceedings, and final arguments.
In contrast, proceedings in public law (barring criminal law) generally follow a summary adjudicatory process—for example, writ petitions. There is no detailed evidentiary process, and courts need not permit the examination of witnesses. Matters are decided on the basis of the parties’ pleadings and documents, and arguments thereon.
Even a simple, fully contested trial may require thirty to forty hearings spread over several years, whereas a straightforward writ petition or appeal can be disposed of in as few as three hearings. Of course, even the latter can sometimes be protracted over years.
How private law adjudication is languishing in Delhi
To give you an example, Delhi High Court has original jurisdiction to entertain civil suits where the suit is over 2 crores in value. In the initial stages of the suit, the judges have less of a role; the Registrar Courts of the Delhi High Court are vested with extensive housekeeping functions, handling non-adjudicatory judicial tasks such as issuing summons, ensuring the completion of pleadings and the admission/denial of documents, and overseeing the recording of evidence and marking of exhibits.
The Delhi High Court broadly has three types of cause lists that come out for each day—the advance list, which contains matters meant for summary adjudication; the supplementary list, which includes matters freshly filed and requiring a first hearing; and the regular list, which among others, lists the original side matters for final arguments after the evidence stage is complete.
The advance and supplementary lists together for each bench often run to nearly a hundred matters. As most Delhi High Court practitioners and court staffers will tell you, judges are barely able to get through these. Regular matters are either not listed at all, or even when they are, they are seldom heard. This is despite the Registrar Courts handling much of the non-adjudicatory heavy lifting required for a suit to reach final arguments. In such a system, which is weighted towards the disposal of summary matters, it is no surprise that private law adjudication is languishing.
A fully contested civil trial before the Delhi High Court or even the District Courts can easily last seven years, even though dates are quicker to obtain in the latter. Courts are far too accommodating and routinely grant adjournments.
Trials in the District Courts can, at times, verge on a mockery of justice. It is not uncommon to see parties shouting at each other inside the courtroom, or one party securing an adjournment or making a mention in the absence of the other side. It is also common for witness examinations to be conducted by lawyers while the judge simultaneously hears other matters in the same courtroom.
The absence of consequences for parties or lawyers who seek adjournments, combined with the common practice of linking litigation fees to the number of hearings and the lack of incentives such as success fees tied to outcomes, has manifested in a litigation culture marked by laxity across the country.
The failure of Commercial Courts
Most contractual disputes are commercial in nature. The Commercial Courts Act, 2015 mandated setting up dedicated commercial courts and commercial appellate courts all over the country with the stated aim of quicker disposal of commercial disputes and improving the ‘enforcing contracts’ metric in the World Bank Ease of Doing Business rankings (where India ranks 163). This was sought to be achieved by prescribing stricter timelines and dedicating more manpower and infrastructure. For instance, the law now mandates pre-institution mediation, and case management hearings.
As per a 10-year review of the commercial courts in Mumbai conducted by The Print, which for this article, I’m taking as a very benevolent proxy for the rest of the country, the duration of cases has remained largely unchanged over the past decade:
The median time for disposal of commercial suits is 1,580 days, i.e. 4.3 years, which is an increase compared to the World Bank–reported median of 1,420 days for enforcing contracts. In any event, median disposal time is a misleading indicator of court efficiency because it captures only disposed cases and ignores long-pending cases. A more accurate measure of timeliness is the proportion of cases that remain pending in the system over time.
More than 60 percent of both commercial and ordinary suits remain pending after two years, indicating little difference in disposal speed between the two.
After five years, a higher proportion of commercial suits remain pending compared to ordinary suits.
In 40 percent of commercial cases, no hearing was conducted for three months after filing.
In 25 percent of commercial cases, no hearing was conducted for six months after filing.
Therefore, not even special infrastructure and procedures have been able to expedite commercial litigation in India. Deep structural deficits in accountability, incentives, or feedback have rendered commercial courts ineffective as well.
India’s crisis of tort litigation
There is no meaningful tort litigation in India. Claims founded upon breach of duty of care are rare, and even rarer are cases where trial courts award compensation based on negligence principles.
Some tort-like claims will have special laws and tribunals set up for summary adjudication. Think the Consumer Protection Act and Consumer Courts for consumer tort claims; or the Motor Vehicles Act and Motor Accident Claims Tribunal for road tort claims. However, even relief from these tribunals is hardly adequate or timely.
The over tribunalisation of justice in India is a topic for an entirely different rant. It is also common for government bodies to intervene and announce compensation for victims of mass tragedies like stampedes, essentially fashioning private law tort claims as public law remedies.
Interventions like these and tribunalisation seldom create institutional deterrence and incentives that tort law seeks to establish. There is no cost to negligence or tort committed either by a person or public body. This is also the reason why it is so common for civil tort disputes to be given a criminal colour by filing a criminal complaint —to gain some leverage, whether rightly or wrongly, over the tortfeasor.
Where does arbitration stand in India today?
In the absence of private law trials being effectively adjudicated in India, arbitration slowly evolved in India as an answer for commercially minded parties to resolve disputes that needed factual appreciation. Arbitration allows parties to lead evidence and prove damages, which isn’t possible before Indian courts effectively or in a timely fashion. For example, construction project disputes benefit from the leading of evidence on facts and proving damages.
While arbitration is by no means a perfect system, it typically leads to faster resolutions, reducing prolonged legal costs and business disruptions. It also offers a single-tier process with limited avenues for appeal. These features provide finality and certainty. However, recent moves by the government and judiciary are blurring the line between litigation and arbitration.
The government is the foremost litigant in the country, including in contractual disputes. In June 2024, the Department of Expenditure issued an office memorandum restricting government bodies from opting for arbitration in public procurement contracts where the dispute value exceeds ₹10 crore. T he Ministry of Highways issued a similar office memorandum in January 2026. This bizarre move forces parties into already overburdened courts, significantly prolonging dispute resolution and delivering yet another blow to private law adjudication. On the judicial front, the Supreme Court’s Gayatri Balasamy judgment (2025) last year allowed more leeway to courts to modify arbitral awards.
As courts intervene more freely and the government shows increasing reluctance to arbitrate, parties may begin to lose the incentive to choose arbitration at all, a concern I flagged last year for Economic Times. In this environment, private law enforcement either deteriorates further, placing additional strain on an already overburdened court system, or, more optimistically, acts as a fillip for policymakers to improve the functioning of the courts.
Woeful lack of updated jurisprudence on Private Law
Another side effect of pushing private law to the back burner is that Indian courts are not laying down modern precedent on issues of private law—contract or tort. There aren’t an adequate number of judgments from the High Courts and the Supreme Court on private and commercial laws. Our jurisprudence on these topics is largely from before 2000, when perhaps courts had more capacity to conduct trials.
Some of this can also be attributed to the rise of arbitration as the preferred forum for resolving commercial disputes. The scope of interference in arbitral awards is narrow. Some jurisprudence in contract and tort law is often seen in relation to petitions for setting aside arbitral awards. The problem with such jurisprudence is that the court only needs to check for reasonable interpretations of the law and contract. Courts are not necessarily laying down precedent as much as they are examining whether the arbitrator was manifestly wrong.
In developed common law jurisdictions such as Singapore or England, courts conduct trials more often. Contract and tort law are adapting to the changing times and technological advancements. Given the common legal heritage, the updated interpretations of the law are often cited in Indian courts and arbitral tribunals for their persuasive value.
No easy fix to the problem
Given the structural deficiencies in Indian litigation, it has become common for parties to use litigation primarily as a means of obtaining interim relief, such as injunctions, and for the party securing such relief to then sit on the litigation. It is also common for parties to engage senior counsel who specialise in obtaining interim relief, and many lawyers now aspire to become interim relief specialists.
Indian litigation today is a system that punishes everyone — the judges, the lawyers, the government, and most importantly, the citizens. Litigation often leads to uncertainty, slower redressal and higher transaction costs. Like much of what ails our country, it is not the lack of rules but a failure of faithful enforcement and accountability that mars any efficiency our courts may be able to have, and therefore a predictable business environment or empowered society.
There is no easy fix to this problem. Capacity building is necessary but inadequate. What we need is accountability across the board from judges, lawyers, and policymakers alike. Unless the system moves beyond a culture of interim relief and procedural gamesmanship, private law in India will remain effectively unenforceable.
The vision behind this Column
What I have stated before is a high-level overview of the issues I perceive with private and commercial law adjudication in India. Each topic I touched on could perhaps be a topic for a doctoral thesis. However, I hope the above has given the reader a base-level understanding of what ails private law in India.
My aim with the column will be to highlight significant developments in contract law, tort law, commercial laws, and other areas that form the basis of private rights. In the process, I will seek to highlight the lacunae where jurisprudence hasn’t evolved as it has in other developed common law jurisdictions. I will also endeavour to solicit guest contributions from my knowledgeable colleagues at the bar.
Ultimately, I hope this column can nudge stakeholders in private law, such as policymakers, judges, lawyers, and the common man, to question and demand reforms to private law adjudication in India.
