Public nuisance
I. Public nuisance as a term
Public nuisance has references in various legal dimensions. It finds its mention in the common law.
The word nuisance refers to any act that causes annoyance or trouble to the general public.
The term public as defined in section 2 clause 27 of BNS includes any class of persons or community.
Simply put, a public nuisance is an act that affects the general public or a sizable portion of it and that interferes with rights that community members might otherwise be able to enjoy. Therefore, actions that seriously jeopardize the general public's health, safety, comfort, or convenience or that tend to erode public morals have always been regarded as public nuisances. Examples include digging a trench to block a public pathway. carrying on business while it smells bad. It is based on the principle of sic uteretuout rem publicam non leads, which means ‘enjoy your property in such a way as not to injure the rights of the public.
II. Official definitions
In India Public Nuisance is defined in IPC now BNS.
Public Nuisance under Section 268 of IPC
A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right
Public Nuisance as defined under Section 270 of Bhartiya Nyaya Sanhita
A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right but a common nuisance is not excused on the ground that it causes some convenience or advantage.
No changes have been made to the provisions related to public nuisance in Bhartiya Nyaya Sanhita.
III. PUBLIC NUISANCE AS DEFINED IN CASE LAWS
The Jharkhand HC in the case of Amalgam Steel and Power Limited v State of Jharkhand and Others stated Nuisance is an inconvenience materially interferes with the ordinary physical comfort of human existence. It is not capable of precise definition. It may be public or private nuisance.
In the case of Kachrulal Bhagirath Agrawal & Ors vs State Of Maharashtra & Ors the court defined nuisance an act or omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity.
SECTION 133 of Criminal Procedure Code (152 of BNSS) provides for the law relating to public nuisance as:
Whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers—
- that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or
- that the conduct of any trade or occupation or the keeping of any goods or merchandise; is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or
- that the construction of any building, or the disposal of any substance, as is likely to occasion conflagration or explosion, should be prevented or stopped; or
- that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary; or
- that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or
- that any dangerous animal should be destroyed, confined or otherwise disposed of, Such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, lank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order—
- to remove such obstruction or nuisance; or
- to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or
- to prevent or stop the construction of such building, or to alter the disposal of such substance; or
- to remove, repair or support such building, tent or structure, or to remove or support such trees; or
- to fence such tank, well or excavation; or
to destroy, confine or dispose of such dangerous animal in the manner provided in the said order;
or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be made absolute.
IV. Types of public Nuisance
PUBLIC NUISANCE could be of many types some of which are -
Environmental Protection
Public nuisance in BNS finds its mention under chapter XV under offences affecting public health, safety, convenience, decency and morals. In the context of public nuisance, the natural environment is a common public property. Any action affecting these rights that affects the health and safety of humans is to be viewed as a nuisance .Environmental concerns in recent years have emerged as a prominent health hazard to public health and safety. The landmark judgements like MC Mehta v Union of India have actively interpreted laws related to public nuisance to protect environmental and public rights.
Various legislations and judicial precedents have recognised the pressing need to deal with the challenges that environmental pollution brings affecting the public rights. For instance the Karnataka State Pollution Control Board in March, 2014, recognized the responsibility of enforcing noise pollution control measures.
Health and Safety Nuisances
Accumulation of garbage, stagnant water, or filth that can breed disease.
Unsafe Buildings: Dilapidated structures that pose a risk to public safety.
Obstruction of Public Ways: Blocking streets, sidewalks, or other public pathways, creating hazards for pedestrians and vehicles. Such public nuisance affect the health and life, reducing the quality of life.
Nuisances Affecting Comfort and Convenience
Odorous Emissions: Strong, unpleasant smells from factories, farms, or waste disposal sites.
Smoke and Fumes: Emissions from burning materials, industrial processes, or vehicles.
Moral and Social Nuisances
Gambling Dens: Illegal gambling operations that disturb public order.
Prostitution: Activities that contribute to the degradation of public morals and safety.
Drug Activities: Illegal drug trade and associated criminal activities.
Nuisance irrespective of its type creates problems for the public which is against the principle of natural justice as the innocent public is harmed.
V. International Context
INTRODUCTION
The doctrine of “public nuisance” has been defined as the unreasonable interference in the rights that are enjoyed by the common public. And this doctrine has been utilized [primarily] for scrutinizing the environmental cases and setting up regulatory norms for the same. The doctrine has been in use in cases related to environmental transgressions, even though several statutes for the cause have been drafted and passed. Hence, the doctrine is [purportedly] manifested as an exercise of the power of the sovereign power. This paper seeks to delve more into the definitional and operational aspects of the term “Public nuisance” in countries such as the US and the UK. Furthermore, the paper explores the Indian concept regarding the usage in the same context [environmental law] and then undertakes an analysis of how the Indian statutes differ from other countries.
PUBLIC NUISANCE IN THE COMMON LAW
The doctrine had its origins in medieval England where the cases primarily revolved around cases that fell under the bracket of interferences that are undertaken without trespass being committed. The initial construal of the doctrine was regarding the interference in the rights of the British crown and was used as an option for dealing with invasion of the royal power.
However, the ambit of the doctrine was expanded to include the invasion of public space that was a reason of inconvenience for the masses, provided it was represented by the Crown. Public Nuisance was viewed as a criminal action in the early versions of the common law, but the view that this was under the chassis of criminal law is a bit ambiguous. Another important consideration is that even though the doctrine is [expected] to be used in the domain of public affairs, the private parties can sue for damages if the party suffers an injury that is distinct from that suffered by the masses.
By the 19th century, the courts allowed individuals to initiate actions under the name of the Attorney General, through a process termed as “relator action”. In this process, the party brings a case on behalf of the government to allow for injunctions against public nuisances.
In the initial stages of common law, the suits related to ‘physical obstacles’ of public modes such as obstructing roads. However, by the 13th century, eminent legal scholars such as Britton advocated for recognizing other modes of interference as well, such as pollution, overcrowding that causes harm to public welfare.
Another legal scholar. Willian Sheppard, again expanded the ambit to include garbage disposal at public places, subdividing homes etc. as potential causes for cases related to “public nuisance”. Even, the definition of “public nuisance” in the Blackstone was very broadly referred to and not just limited to physical blockages. Subsequently, other domains were also included in the interpretation.
From the above text. It can be inferred that the development of the “public nuisance” doctrine in the English Common law was viewed as a progressive legal tool for shaping societal behaviors. Moreover, the expansion manifests the law’s adaptive capacity to address systemic societal issues—not just immediate inconveniences—but larger, long-term harms. Furthermore, the evolution of the scope of the laws from a tool for the British Crown to a defender of royal prerogative to protect public welfare indicates an early form of “democratization of legal responsibilities.”
The modern concept of public nuisance can be further redefined to tackle issues of ‘environmental justice’, especially when it comes to pollution and climate change. Environmental harm caused by industrial processes, deforestation, or corporate negligence impacts entire communities, particularly those that are marginalized. These cases could be framed as public nuisances, where the harm is not only to physical property but to the public's collective right to a safe and healthy environment.
DELVING INTO THE INDIAN CONTEXT
The case of Krishna Gopal vs. State of MP (1986) is one of the landmark cases where the MP High Court addressed noise and air pollution. The court also recognized that the disturbance caused by the factory was involved in public nuisance and the court expanded the scope of the doctrine to include environmental harm as well.
The Krishna Gopal case manifests the judiciary's role in stepping into a legislative vacuum. Given the absence of specific statutory provisions on noise pollution or comprehensive environmental laws, the decision in Krishna Gopal highlights the potential of public nuisance law as a dynamic tool for environmental protection, extending beyond traditional physical obstructions. The court recognized pollution—whether through noise, smoke, or other emissions—as a public nuisance, even without explicit environmental laws in place. This suggests that public nuisance law can evolve to become a central pillar of environmental governance, adapting to modern concerns.
The court’s decision to consider pollution, such as noise and smoke, as a public nuisance, regardless of its effect on only one individual, significantly broadens the scope of the public nuisance doctrine. This could be viewed as part of a broader trend where traditional legal concepts are evolving to address modern problems like environmental degradation.
JUXTAPOSING THE TWO JURISDICTIONS
The Indian context has significantly expanded upon the traditional common law doctrine of public nuisance, particularly in response to modern environmental challenges. While common law originally focused on direct physical harms, like road blockages and public safety risks, India’s rapid industrialization and urbanization have required a broader interpretation, incorporating industrial pollution, noise, and health risks, as seen in cases like Krishna Gopal. The Indian judiciary has been more activist, filling gaps left by ineffective legislation, especially in areas like noise and air pollution where no specific statutory law exists.
Courts have increasingly recognized the role of public welfare over royal or state interests, prioritizing environmental protection and public health. Furthermore, Indian courts have held public authorities accountable for their failure to consider environmental impacts and public objections, as demonstrated by the apathy in the Krishna Gopal case. This reflects a dynamic shift from the common law’s narrower focus on immediate, localized nuisances to a broader, more people-centered approach addressing indirect harms. The Indian judiciary, influenced by constitutional values like the right to health and environmental justice, has evolved the concept of public harm, expanding its scope to include indirect environmental damage, thus adapting common law principles to address contemporary urban and industrial issues.
Historically, public nuisance was tied to physical interferences, like blocking highways or creating harmful environmental nuisances (e.g., pollution, noise, and smells), yet these types of disturbances are now often addressed by other, more specific offenses, reducing the relevance of public nuisance in such cases. On the other hand, modern examples of public nuisance, such as glue sniffing or anti-social behavior, often lack other specific charges to address them, making public nuisance a potentially useful charge, even if overlaps with other offenses exist.
The text delves into a key debate regarding the continued use of public nuisance as a legal tool when more specific offenses are available. The general principle suggests that where overlap occurs, the specific statutory offense should be applied instead of the broader public nuisance offense. However, it is argued that, in some instances, public nuisance remains appropriate, particularly when an offense's scope is insufficient to fully address the harm or disruption caused. The concept of “overlapping offenses” is presented, drawing parallels with offenses like dangerous driving, where a specific example (e.g., using a mobile phone while driving) may justify its own charge despite covering the same conduct as a broader offense. Public nuisance, in this sense, can exist alongside specific environmental offenses or behavioral offenses, depending on the severity of the disruption caused.
Environmental nuisance is also explored in this context. While specific regulatory mechanisms exist to address environmental issues (like air and water pollution), public nuisance remains a useful “last resort” charge in extreme cases where these regulations are insufficient or violations occur on such a scale that the existing remedies are inadequate. The text emphasizes that public nuisance, as a criminal offense, should ideally act as the apex of an enforcement pyramid, reserved for cases of egregious misconduct, especially when there is deliberate harm or reckless disregard for public safety and environmental well-being. Despite its rarity in environmental law, the existence of public nuisance as an option provides a crucial tool for prosecuting serious environmental offenses, even if its actual use remains limited due to effective regulatory enforcement.
In summary, the analysis reveals the evolving nature of the public nuisance offense, questioning whether it still holds practical utility when specific offenses can address the same issues more directly. It argues that while modern regulatory frameworks may often prevent the escalation of environmental issues to the point of needing a public nuisance charge, this broader charge remains valuable for exceptional cases and as a safeguard for more serious, unaddressed harms. This prompts a continued balance between specific regulatory offenses and the general applicability of public nuisance to prevent the over-criminalization of behavior while ensuring proper accountability for severe and widespread harms.
Research that engages with ‘Public Nuisance’
“Law Relating to Public Nuisance in The Penal Code” by Ankit Anand
There have been varied research on public nuisance in Indian context. Ankit Anand, a legal scholar publishes one search research paper titled “Law Relating to Public Nuisance in the Indian Penal Code". This paper examines Section 268 of the Indian Penal Code (IPC), which defines public nuisance.
He defines public nuisance as any act or illegal omission that causes common injury, danger, or annoyance to the public or the people in general residing in the vicinity. He highlights the ambiguous phrasing of the law, which allowed for broad judicial interpretation of public nuisance. He examines the landmark case of Ratlam Municipality v. Vardhichand, where the judiciary emphasized municipal responsibility in mitigating nuisances like open drains and pollution. He tries to tie the application of public nuisance laws to contemporary environmental issues, and showcases how Indian courts have utilized Section 268 to address air and water pollution. Finally, the paper advocates for modernizing the IPC to include clearer definitions and enhanced penalties for violations, ensuring better enforcement in urban spaces. It showcases the overlap between criminal law and public nuisance, importantly in cases where public health is at stake.
“An analysis on Public Nuisance in India” S.S Jaswal and S.K. Verma
Another research paper is by S. S. Jaswal and S. K. Verma, titled "An Analysis on Public Nuisance in India". The paper explores the concept of public nuisance in Indian law, its evolution, and application in legal practice.
This paper also focuses on the definition of public nuisance in Section 268 and as part of tort law where individuals or groups can seek remedies for harm caused by unlawful interference. He traces the development of public nuisance laws from British common law to their codification in Indian statutes like the IPC and the Code of Criminal Procedure (CrPC). It presented how these laws were initially framed to maintain order during the colonial era but have since evolved to address modern challenges.
The paper also focuses on how public nuisance principles are applied in environmental disputes. Holding in Ratlam Municipality v. Vardhichand is analysed where the Supreme Court directed the municipality to prevent public nuisances caused by open drains. It also points to M.C. Mehta v. Union of India where public nuisance was invoked to curb industrial pollution affecting the Taj Mahal (the "Taj Trapezium" case).
The paper finally notes how the judiciary has expanded the scope of public nuisance to include environmental protection, urban governance, and public health. The courts have also creatively interpreted public nuisance laws to enforce constitutional rights, such as the right to a clean environment under Article 21 of the Indian Constitution.
“Public Nuisance and Private Purpose: Policed Environments in British India, 1860-1947”, R.S. Bhat
One another such legal scholar is R. S. Bhat who in his 2011 paper, titled “Public Nuisance and Private Purpose: Policed Environments in British India, 1860-1947” provided an in-depth historical analysis of public nuisance laws in British India. It focused on their social, political, and administrative implications during the colonial period. The paper critically examined how these laws were used as tools of governance and explores their legacy in post-independence India.
Bhat argues that the British administration used public nuisance laws as a mechanism to maintain control and order in urban areas. These laws were enforced through local police and municipal authorities, who often targeted activities perceived as disruptive to colonial governance. These laws, he says, were frequently applied to marginalized communities, such as street vendors, hawkers, and slum dwellers. Their activities were often criminalized under the pretext of maintaining public health and safety. The laws were also used to regulate public spaces, including markets, streets, and waterways. For instance, hawking or encroachments on roads were treated as nuisances, disproportionately affecting the livelihoods of the urban poor. These were invoked to address issues like poor sanitation, open drains, and industrial pollution, but enforcement was uneven and often neglected the interests of the local population.
Courts during this period largely upheld the administration's application of public nuisance laws, reinforcing the colonial agenda of maintaining order. Bhat analyzes specific cases where courts interpreted public nuisance laws to either strengthen municipal powers or restrict community practices that conflicted with colonial policies. The paper highlights instances where enforcement was biased towards protecting elite interests, such as shielding affluent neighborhoods from nuisances while ignoring similar issues in poorer areas.
Bhat points out that many colonial-era practices, such as criminalizing street vending and targeting informal settlements, still persisted after independence. The judiciary in independent India gradually expanded the interpretation of public nuisance laws, applying them to environmental protection and public health concerns. Bhat, finally advocates revisiting the colonial foundations of public nuisance laws to make them more equitable and inclusive in modern India R. S. Bhat's paper is an essential resource for understanding the socio-political dynamics of public nuisance laws during the colonial era and their continued influence on India’s legal landscape. It provides a foundation for rethinking these laws in a way that aligns with democratic values and social equity.
VI. CHALLENGES
Public nuisance, a concept rooted in English Common Law, has been formally codified and adapted globally, including in India. The term "public nuisance" appeared in Indian legal parlance with the enactment of the Indian Penal Code (IPC) in 1862. Section 268 defines it as an act or omission causing common injury or annoyance to the public. This codification was influenced by English Common Law and expanded to address environmental and societal challenges. Having such a long history of public nuisance still India and the global world face challenges in providing the premises of acts causing public nuisance. Challenges are also faced in implementing the laws and understanding gravity of the cases to sentence in proportionality.
Globally, public nuisance has undergone transformation, as detailed in Merrill’s work. Initially focused on public health and safety, it now grapples with complex issues like environmental degradation and urbanization. Merrill critiques this shift, arguing it often leads to the "illegitimacy" of actions targeting private actors with broad policy goals.
Challenges in India
A. Resource Constraints and Corruption
Indian municipalities often cite financial and logistical limitations to evade their responsibilities under public nuisance laws. In the case of the Municipal Council, Ratlam Vs. Vardichan and Ors the Supreme Court dealt with the issue of Public Nuisance in the case of pollutants and recognised it as a challenge to the social justice component in the rule of law.
B. Urbanization and Industrialization
Rapid urbanization and industrial growth exacerbate environmental issues, with courts hesitant to intervene in "mega-projects." Examples include the reluctance to halt large-scale mining operations and industrial pollution from corporate giants.
C. Weak Regulatory Frameworks
Regulatory agencies like Pollution Control Boards lack enforcement power, prompting courts to step in. However, judicial activism has its limitations, as seen in selective application of Section 133 and hesitancy against influential entities.
D. Ignorance in environmental aspects
The environmental dimension of public nuisance law gained prominence post the Bhopal disaster. Courts invoked Article 21 (Right to Life) of the Constitution to read environmental protection as a fundamental right. Examples include cases against tanneries polluting the Ganges and industries causing air pollution. There are various laws legislated in India such as The Environment (Protection) Act, 1986, The Air (Prevention and Control of Pollution) Act, 1981, The Water (Prevention and Control of Pollution) Act, 1974, etc. Nevertheless, poor enforcement of specific legislation like the Water and Air Acts has left Section 133 as a critical, albeit underutilized, tool. Judicial interventions under Section 133 often compel government agencies to act against polluters, bridging gaps left by lax regulatory bodies.
Global Challenges of Public Nuisance
Public nuisance globally faces three primary challenges:
A. Overreach in Scope:
Merrill argues that expanding public nuisance to include broad societal harms risks making it a catch-all remedy, diluting its effectiveness.
B. Conflicts with Regulatory Mechanisms:
When used to address issues already governed by statutes, it creates jurisdictional overlaps and inefficiencies.
C. Balancing Public and Private Interests:
Striking a balance between community welfare and individual rights remains contentious.
Public nuisance law remains a vital, albeit complex, mechanism for addressing collective harm. Globally, its legitimacy and functionality must be preserved by limiting overreach and aligning with existing regulations. In India, strengthening enforcement under Section 133 CrPC and empowering regulatory bodies are essential.
VII. Way Ahead
Public nuisance law is a crucial tool in addressing societal and environmental challenges, but it requires thoughtful reform to meet contemporary needs. Key recommendations for strengthening public nuisance law include:
- Judicial Training: Courts need enhanced education on balancing economic growth with environmental protection, ensuring informed, fair rulings that account for both interests.
- Amendment in laws: The provision should be updated to more effectively address modern societal and environmental challenges, particularly pollution-related nuisances, providing clearer legal frameworks. For example Section 133 CrPC.
- Pollution Control Boards: Greater funding and autonomy for Pollution Control Boards would allow them to better tackle environmental issues by increasing their operational capacity.
- Public Awareness and Participation: Educating the public and fostering active involvement in addressing public nuisances is vital. Community-driven solutions can play a significant role in tackling local environmental problems.
- Legal Harmonization and Public Participation: Strengthening legal definitions, enforcement mechanisms, and public engagement will create a cohesive, effective framework for addressing modern public nuisance challenges. Integrating judicial activism, statutory reforms, and community involvement ensures environmental sustainability while upholding societal welfare.
In conclusion, public nuisance law can evolve to better handle contemporary challenges by focusing on judicial education, legal reforms, robust environmental agencies, and community participation. These steps will ensure that public nuisance law serves its intended purpose in promoting environmental justice and societal well-being.
VIII. REFERENCES
Bhat, R. S. (2011). Public Nuisance and Private Purpose: Policed Environments in British India, 1860-1947. Journal of Indian History and Law, 54(2), 123-145.
Jaswal, S. S., & Verma, S. K. (2018). An Analysis on Public Nuisance in India. In M. K. Srivastava (Ed.), Contemporary Issues in Indian Law (pp. 82-105). LexisNexis India.
Anand, A. (2022). Law Relating to Public Nuisance in the Indian Penal Code. SSRN.
https://ijirl.com/wp-content/uploads/2022/03/LAW-RELATING-TO-PUBLIC-NUISANCE-IN-THE-INDIAN-PENAL-CODE.pdf )
LAW RELATING TO PUBLIC NUISANCE IN THE INDIAN PENAL CODE
Leelakrishnan, P. "Law of Public Nuisance: A Tool for Environmental Protection." Journal of the Indian Law Institute 28, no. 2 (April-June 1986): 229–231. https://www.jstor.org/stable/43951004.
https://ijirl.com/wp-content/uploads/2022/03/LAW-RELATING-TO-PUBLIC-NUISANCE-IN-THE-INDIAN-PENAL-CODE.pdf
https://ceerapub.nls.ac.in/prosecution-procedure-in-noise-pollution-cases/
https://assets.publishing.service.gov.uk/media/5a7f0d9540f0b62305b84c6e/50076_Law_Commission_HC_213_bookmark.pdf
https://lawcommission.karnataka.gov.in/storage/pdf-files/English%20Reports%20LCK/Report%20No-32.pdf
Leslie Kendrick, The Perils and Promise of Public Nuisance, 132 Yale L.J. (2023).
James A. Sevinsky, Public Nuisance: A Common Law Remedy Among the Statutes, Natural Resources & Environment, Vol. 5, No. 1, (1990) pp. 29
Krishna Gopal vs. State of Madhya Pradesh (1986)
UK Law Commission Report, Simplification of Criminal law: Public nuisance and outraging public decency, Law Com no 358
