Public Nuisance and Private Purpose: Policed Environments in British India, 1860-1947
SOAS Law Department Working Paper No. 1
35 Pages Posted: 27 Jul 2011
Date Written: July 1, 1992
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 resources.
Tracing the way in which public nuisance was applied – and resisted – it is possible to see how the physical environment became a terrain of social struggle with both material and ideational dimensions. The thesis here is that after 1860, and particularly in the period between 1870 and 1920, the colonial state used the twin devices of property law and criminal law to sustain a massive intervention in the social use of the physical environment. As land, waterways, and plants were appropriated for 'public' use, individuals and communities were dispossessed of their customary entitlements to common property resources. These exclusions were enforced with an intensive form of state policing which also helped to effect the transfer of resources into the hands of entrepreneurs and a middle class concerned to regulate public space. Far from being a legal epiphenomenon, the doctrine of public nuisance ushered in a transformation of the physical environment which entailed profound alterations in people's notions of themselves, their ideas of collective entitlements, and the conduct of everyday life. Public nuisance provided the conceptual architecture for a new ordering of public space – a space that was closely involved with the material and symbolic bases of a new middle class hegemony.
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