Public Nuisance and Private Purpose: Policed Environments in British India, 1860-1947
In the 1980s, a number of Indian legal activists sought out legal provisions which might be deployed to redress environmental claims. In an early decision which helped to unleash the genie of public interest litigation, Justice Krishna Iyer seized upon the criminal law doctrine of public nuisance, a...
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| Format: | Book |
| Language: | English |
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SOAS School of Law Research Paper No. 05/2011
1992
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| Online Access: | https://eprints.soas.ac.uk/22037/ https://eprints.soas.ac.uk/22037/1/Anderson_22037.pdf http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1884551 |
| Summary: | In the 1980s, a number of Indian legal activists sought out legal provisions which might be deployed to redress environmental claims. In an early decision which helped to unleash the genie of public interest litigation, Justice Krishna Iyer seized upon the criminal law doctrine of public nuisance, and sought to imbue it with 'the new social justice orientation' imparted by the Constitution. Thereafter, a new enthusiasm for public nuisance was joined. Judges and academics championed public nuisance as a vehicle for redressing government inaction, and proclaimed a new judicial sympathy for populist environmental movements. It became commonplace in legal circles to note that criminal law held great potential for environmental protection, but that it had never been properly arrayed against the forces of pollution and resource degradation. The doctrine of nuisance, it seemed, was innocent of historical usage: a moribund tool of 'ancient vintage' that could be pressed into useful service with only a modicum of jurisprudential polish. While it is true that there has been very little reported case law in the field of public nuisance since 1940, a closer examination of the historical record reveals a story of frequent convictions under the authority of colonial magistrates. Indeed, convictions for public nuisance were generally more common than under any other criminal category after 1870, representing the most frequent and systematic application of police power under colonial rule. And yet, current historiography has been virtually blind to this large coercive project, opting instead to stress organic processes of the longue duree or isolated points of quasiorganisational rebellion. Meanwhile, it seems that nuisance played a key role in the control of the environment and the experience of colonial rule. In light of recent concerns, then, it seems worth enquiring into the character of public nuisance in the colonial period, with particular attention to the role of the state in social conflicts involving environmental ... |
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