The relationship between public and private authority is moving and transforming
in the course of time. There are theories that argue a recent shift in power
from public to private entities. However, a closer look at this argument reveals
it is incomplete. This essay contends that the movement of public authority and
private authority is not a linear one, from private to public and back again,
but rather an intricate interplay between them, wherein their definitions and
functions change over time.
Historical Shades on Modern Concepts
In the past when the modern state was non-existent, forms of private power were
more dominant. Private authority structures such as feudal lords, guilds and
church exerted substantial influence on economic activity, social hierarchy even
legal frameworks. On the other hand, public authorities usually took form of
incipient monarchy which had little impact. It was with this kind of dominance
by private actors that we begin our discussion because it challenges popular
"default" notion about historical trend towards public primacy.
However, the emergence of the modern state marked a turning point. This involved
a lengthy process during which individual states created strong systems of
public law through which they could be able to have greater control over social
life as well as the economy itself (Friedrich 1991: 81-118). This would mean
side-lining other centers of private power while consolidating their own
legitimacy. The rise of public power that coincided with the development of
legal frameworks concentrated on public interest, welfare and citizen rights.
However, the story here doesn't end still. The twentieth century witnessed a
comeback of private authority in some areas. The emergence of corporations,
growing influence of private actors in issues such as infrastructure
development, and focus on deregulation and privatization all indicate to a shift
taking place. This has led to arguments in favor of bringing back the dominance
by the private sector.
Yet, however there is more than meets the eye. In most cases, growth in private
power takes place within a framework set by the public sphere. For instance,
privatization usually depends heavily on government approved contracts and
regulations. In addition to this, the public sector continues to have
significant roles in areas such as national security, protection for environment
as well as social safety nets.
The important point is that one should understand that both public and private
authorities have co-evolved over time. They have expanded and contracted
throughout their life-spans constantly changing their definitions and functions.
Contemporary world does not witness only the return to domination by privates
but depends on globalisation forces or technological advancement it can be seen
from this perspective that what we are going through today is not simply a
reversion towards privatisation but an entirely new form of relationship between
public sphere and individual interests brought about by globalisation forces or
technological advancement among others.
This historical context provides a useful framework for examining modern
discussions on government, the power of corporations and authority itself. It
tells us that public-private divide is not a permanent dichotomy but rather a
scale where powers continuously change.[1] When faced with the intricacies of
this century, knowing how it came to be can help in fashioning an enlightened
talk over the right balance between public and private control based on our
societies.
Indian Context
Indian law has undergone a significant transformation in recent years, with a
notable shift from public to private law. This evolution has had a profound
impact on the legal landscape of the country, affecting everything from property
rights to contract law. India has a rich legal history that predates British
colonial rule. The pre-colonial legal system was based on religious texts and
customary law, with disputes resolved by local councils.
However, the British
colonial influence on Indian law was profound, with the introduction of common
law principles and the establishment of a formal legal system. After
independence, India adopted a constitution that drew on both Western and Indian
legal traditions, creating a unique hybrid system. India is, when viewed from
historical perspective, private power and authority framing state-based public
authority and power making the purpose of power, power itself.
The distinction between public and private law is fundamental to understanding
the shift in Indian law. Public law governs the relationship between the state
and its citizens, while private law regulates the relationships between
individuals and entities. In recent years, there has been a noticeable shift
towards private law, with a greater emphasis on individual rights and private
property. This shift has been driven by a number of factors, including economic
liberalization, globalization, and changing social attitudes. This shift is
evident in specific areas of law, such as contract law, property law, and tort
law.
The appropriate example for illustration of the present scenario pointing
towards "from legislation to private" can be access to justice and prominently
seen in the arbitral tribunal system in India. The need for quick redressal and
justice is something which the world surely desires and the arbitral tribunals
are the creation of such desire. They not only save time but the money of people
as well.
Distinguished from the lengthy litigation route, this method prevents
unnecessary delays and also help lighten the overburden that the dispute
resolution courts carries. The Arbitral Tribunal system provides a variety of
mechanisms to deal handle dispute resolution such as via arbitration,
conciliation and mediation. In India, one of the mechanism followed on is the
mechanism of arbitration which is governed by the Arbitration and Conciliation
Act, 1996.
The Act was established with goals of speedy disposal, cost-efficient
dispute settlement vide formal award whilst permitting the use of mediation and
conciliation and other such means encouraging dispute resolution but in fact
such process might be costly and inaccessible for several people and
furthermore, this can originate a two-tier justice service, where the ones with
greater access to justice are the one with greater resources. The Act also
minimizes the supervisory role played by the Courts.
So how exactly are they inclined towards being private rather than something
which is part of the same old legislation. The Arbitration is considered as
quasi-judicial proceeding as parties are required to appoint an arbitrator over
an agreement to settle down the dispute. Although the powers vested in the
Tribunal and functions performed by it are regulated vide statutes, arbitration
still is obligation assumed to fall on the parties vide agreement for solving
their disputes through a private tribunal.[2]
Outsourcing Contracts can yet be an another example of how the legislation is
converting itself in favour of being in the hands of private personnel rather
than the overwhelming public authority. Several functions such as back-office
services, Information Technology services, etc., the government itself is
purporting towards more hands in help, that is, in the private hands. Government
is indulging in procurement processes via contracts with private suppliers. The
Government even set up a stage and settlement for such process which is solely
for the purpose of facilitating online procurement and contracts with private
services providers over "Government e-Marketplace".
Another pattern which corroborates the statement by Kjaer is India being
inclined towards Public–Private Partnerships models for infrastructure
development. These are generally seen as Build-Operate-Transfer agreements and
Concession agreements.
There is another factor seen where the shift from public to private law is
prominent. Initially most of the banks were under private ownership but were
nationalised in the year 1969. A recent proposal's been put on to privatize
these banks again and therefore strategically putting them at the exact place
from where it all started.
In the year 2008, Bangalore and Hyderabad replaced two public-owned airports
with private greenfield airports which raised questions with regards shift from
public monopoly to private monopoly.[3] The shift do raise questions with
regards the role of state in regulation of such private conduct.
What is worth noting is that the contract law is more is becoming more focused
on the enforcement of private agreements, with greater weight on the autonomy of
parties. Even the property law has moved to recognise private property rights
more with minimal role of government during land acquisition and development.
The Tort law is even more emphasized towards compensating individuals for harm
caused by private actors.
Conclusion
The shift from public to private law is something which is not unique in India
and therefore, it is worth to consider how other legislatures respond to it. The
evolution of Indian law from public to private law is a complex and multifaceted
phenomenon and in words of Kjaer, "a shift is being observed away from public
toward private authority, and with it, a shift from public to private law and
from legislation to contract".[4]It has its roots both in historical and
contemporary factors, and it has significant implications for the future of
Indian law and society. The turn to governance has not only implied a migration
of the contract tool into the state, but it has also opened the gate for an
expansion of administrative law provisions into the private sphere.[5]
End-Notes:
- A. Claire Cutler, Private Power And Global Authority: Transnational Merchant Law In The Global Political Economy (2003) (analyzing the role international economic law plays in global governance)
- "Alternative Dispute Resolution in India" (Department of Legal Affairs), URL: https://legalaffairs.gov.in/sites/default/files/arbitration-and-mediation_0.pdf, assessed on March 22, 2024
- George, Moses. "Public Monopoly to Private Monopoly: A Case Study of Greenfield Airport Privatization in India: Part II." (2009)
- Poul F. Kjaer. "From the Private to the Public to the Private? Historicizing the Evolution of Public and Private Authority." Indiana Journal of Global Legal Studies, vol. 25, no. 1, 2018, pp. 13–36. JSTOR URL: https://doi.org/10.2979/indjglolegstu.25.1.0013. Accessed 22 Mar. 2024.
- Grahame F. Thompson, The Constitutionalisation of Everyday Life? in The Evolution Of Intermediary Institutions In Europe: From Corporatism To Governance 177 (Eva Hartmann & Poul F. Kjaer eds., 2015)
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