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LGD 2001 (2) - Amanda Perry


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 Lawyers in Urban Development:
Providing a Means to an End?
 

Amanda Perry
Lecturer, School of Law
Queen Mary, University of London
a.j.perry@qmul.ac.uk


Abstract

In an ideal world, the proper role of the lawyer is to act as a facilitator. Lawyers can be said to facilitate in three ways: positive, normative and active. In the context of urban development, the 'positive' role of the lawyer is examine (a) the law, in order to identify who holds rights and obligations governing how and when urban development takes places; and (b) institutions, in order to identify by what mechanisms those rights and obligations are implemented. The 'normative' role of the lawyer is to discover to what extent those (a) rights and obligations are 'properly' assigned, and (b) mechanisms are 'effective'. In determining the answers to these questions, the lawyer may use legal criteria such as justice and fairness, and/or criteria suggested by other disciplines such as economics, environmental science, geography or planning. The 'active' role of the lawyer is to ensure (e.g. by bringing actions before a court) that institutions implement laws 'properly'. In performing the active role, lawyers can rely on conclusions which they have drawn from both their positive and normative roles. That is, a lawyer can rely upon what they have found laws and institutions to be, or they can rely upon what they have found that laws and institutions should be, or they can rely on a combination of those conclusions. The result is that the role of lawyer as facilitator of urban development is extremely complex. Lawyers can be conservative or revolutionary, proactive or reactive. This paper will explore these complexities in the context of the laws and institutions affecting the development of the urban environment of Bangalore.

Keywords: Access to Justice, Urban Environment, Public Interest Litigation, Bangalore, Corruption.


This is a Refereed article published on 19 December 2001.

Citation: Perry A, 'Lawyers in Urban Development: Providing a Means to an End?', Refereed article, Law, Social Justice & Global Development (LGD), 2001 (2). <http://elj.warwick.ac.uk/global/issue/2001-2/perry.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2001_2/perry/>



1. Introduction

Lawyers are essentially facilitators - they are trained to use rules as a means to facilitate an end. In the context of urban development, activists and professionals working in fields such as economics, environmental science, geography or planning will define the ultimate ends. However, the means by which the lawyer facilitates those ends will vary, depending on whether they are taking a positive, normative or active approach. These approaches are the focus of this paper.

In the context of urban development, the 'positive' role of the lawyer is to examine:

(a) the law, in order to identify who holds rights and obligations governing how and when urban development takes place; and

(b) relevant institutions, in order to identify by what mechanisms legislators intend those rights and obligations to be implemented.

Having established the positive status of the legal system (laws and institutions), a lawyer may move to a more normative role of considering to what extent those:

(a) rights and obligations are 'properly' assigned; and

(b) mechanisms are 'effective.' In determining the answers to these questions, the lawyer may use legal criteria and/or criteria suggested by other closely related disciplines, such as economics.

The 'active' role of the lawyer is to ensure that laws are implemented or adhered to 'properly'. This role is usually triggered by a client bringing a complaint to a lawyer, in an effort to seek legal redress.

Sometimes, lawyers will themselves feel compelled to initiate a legal action. In performing the active role, lawyers may rely on conclusions drawn from both their positive and normative roles. That is, a lawyer can rely upon what they have found the status of the legal system to be, what they consider the status of the legal system should be, or a combination of those conclusions.

The result is that the role of lawyer in the context of urban development is highly complex. Lawyers can be conservative or revolutionary, proactive or reactive depending upon the nature of the legal system within which they operate and their own personal skills and convictions. This paper will explore these complexities in the context of the laws and institutions affecting the development of the urban environment of Bangalore, capital city of the southern Indian state of Karnataka[1].

2. The 'Positive' Lawyer

In the context of urban development, the 'positive' role of the lawyer is to examine:

(a) the law, in order to identify who holds rights and obligations governing how and when urban development takes places; and

(b) institutions, in order to identify by what mechanisms legislators intend those rights and obligations to be implemented.

Described, increasingly disparagingly, within the discipline as 'black letter lawyers', positive lawyers aim to present information about the legal system in a methodical and logical fashion. They organise the legal system into the lawyer's code of general principles and exceptions; identify grey areas, that is, issues on which the legal system provides no clear answer; and suggest potential legal arguments for resolving those grey areas, ranking them according to the likelihood of their success in persuading a court.

An example of a positive analysis of Bangalore's urban development legal system is provided in Table 1 . Institutions are divided according to whether they are executive (implementing) or judicial (dispute resolving) bodies. Laws are divided according to whether they are substantive (assigning right and obligations) or procedural (setting out how those rights and obligations are to be enforced). For example, a positive lawyer would note that the Karnataka State Pollution Control Board (executive institution, hereinafter Pollution Board) will be responsible for issuing pollution permits under the Water and Air Acts (substantive law), but if it fails to do so properly, it can be sued in the High Court (judicial institution) under the public interest litigation mechanisms set out in the Constitution (procedural law).


Component

Examples

Institutions

 

Executive

Local Government (City Corporation, Development Authority, Metropolitan Planning Authority).

Local and State Boards (Water & Sewerage, Slum Clearance, Housing, Pollution Control).

State Departments (Environment, Commerce & Industries, Health & Social Welfare).

Judicial

Courts (Magistrates, High, Supreme)

Consumer Protection Councils (District, State, Central).

Environment Tribunals

Laws

 

Substantive

Local Government (Municipal Corporations Act, Water Board Act).

Environment (Water Act, Air Act, Factories Act).

Planning (Development Authority Act, Planning Act).

Consumer Protection Act.

Constitution of India.

Procedural

General Codes of Procedure (Civil, Criminal).

Specialist Provisions (Consumer Protection Act, Constitution of India Environment Tribunal Acts).

Table 1: Positive View of Bangalore's Urban Development Legal System


By dominating legal information, the positive lawyer creates potential power. But that power is only truly realised when the lawyer moves to a normative or active role.

3. The 'Normative' Lawyer

The 'normative' role of the lawyer is to discover to what extent existing:

(a) rights and obligations are properly assigned; and

(b) mechanisms are effective.

Where it is found that the legal system is not operating 'properly' or 'effectively', lawyers can suggest reforms to the legal system which will 'improve' its performance[2].

Normative lawyers may measure the 'propriety' of laws and the 'effectiveness' of institutions according to legal criteria, such as justice. Justice is a concept made slippery in legal hands. It is timidly and sophistically defined by the Concise Oxford Dictionary of Law as:

'a moral idea that the law seeks to uphold in the protection of rights and the punishment of wrongs'.

The Concise Oxford Dictionary is more direct, defining justice as 'fairness'; and fair as 'unbiased, equitable' and 'in accordance with rules'. Therefore justice, and thus effectiveness and propriety as legally defined, is achieved by the unbiased application of rules.

Normative lawyers may also measure propriety and effectiveness according to the criteria used by closely related disciplines, such as the economic criterion of efficiency. If dictionaries are anything to go by, economists are more evasive than lawyers, since the Penguin Dictionary of Economics gives no definition of efficiency. However, the Concise Oxford Dictionary comes to the rescue, explaining that something is efficient if it is 'productive with minimum waste or effort'. Therefore efficiency, and thus effectiveness and propriety as economically defined, is achieved by laws and institutions which achieve their stated goals with minimum waste or effort.

Normative lawyers might alternatively assess legal systems according to criteria which are shared by law and economics, such as certainty. Lawyers value certainty because it is both a cause and an effect of justice. Similarly, economists value certainty because certainty begets efficiency, which in turn begets certainty.

Having set out some of the criteria according to which the normative lawyer might assess a legal system, it is possible to demonstrate how the analysis might work in Bangalore. The normative lawyer would spot a number of defects in the legal system governing Bangalore's urban developments. Bangaloreans generally perceive the failings of the legal system to be concentrated in institutions, rather than in the content of laws - that is, it is commonly stated that rights and obligations are 'properly' assigned by laws but they are not 'effectively' implemented by Bangalore's institutions. However, closer examination of three of the most commonly identified problem areas reveals that in some cases laws may also contribute to crippling the ability of institutions to function effectively.

3.1 Corruption

The widespread existence of corruption in Bangalore's executive bodies is undisputed. Indeed the head of the Development Authority reportedly suggested that 'the public should deal only with senior officials,' if they wish to avoid corruption (Deccan Herald, 1995). A 1993 'report card' of public sector services in Bangalore conducted by the Public Affairs Centre revealed a deeply entrenched culture of 'speed money' payments.

Table 2 sets out the results of the study. Results for those services or agencies which are of particular relevance to the environment are shaded. With the exception of water, all relevant services or agencies produced above- average incidence and volume of speed payments. Interactions with the Development Authority, which is responsible for approving and managing new building developments, produced the highest and (jointly) the most frequent payments of all services or agencies. This is unsurprising, given the extreme pressure on land in Bangalore.


Service or Agency

Respondents Claiming
Paid Bribe

Avg Payment per Transaction (Rs)

Telephone

4%

110

Electricity

11%

206

Water

12%

275

Hospital

17%

396

City Corporation

21%

656

Regional Transport Office

33%

648

Development Authority

33%

1850

Average

14%

857

Table 2: Speed Payments to Public Officials in Bangalore, Source: Paul; 1995.


The normative lawyer would assess these findings to see if corruption is preventing these institutions from implementing rights and obligations effectively. If they used the legal criterion of justice, their response would probably be in the negative since the very purpose of speed money is to avoid the unbiased application of rules. If they used the criterion of efficiency, their conclusion would depend upon whether, on a cost benefit analysis, the use of 'speed money' system is less efficient overall than a rule-based system. If they used the criterion of certainty, their conclusion would depend upon how predictable the corruption is, that is, is it clear when to use it and that it will get the desired results?

3.2 Allocation of Jurisdiction

That urban development is an inter-disciplinary field is reflected in the vast array of institutions which have relevant responsibilities in Bangalore. Importantly, the jurisdiction (rights and obligations) of each institution is not always clearly defined by law. This results in problems of gap and overlap. These problems are exacerbated when institutions adopt a legalistic approach, that is, when they are unwilling to work productively in practice to compensate for inadequacies on paper.

An incident in which most of the fish in one of Bangalore's famous water tanks were killed illustrates the problems caused by ill-defined jurisdiction and institutional obstinacy. The Forest Department claimed that the deaths were caused by 'poison' accidentally falling in the water, while the Fisheries and Horticulture departments blame it on sewage, and therefore on the Water Board. The Corporation, which was responsible for maintaining the tank, argued that because the tank had recently been cleaned, sewage could not be the cause; and blamed the deaths on over-breeding by a private fish breeder. The fish breeder again pointed the finger at sewage, and therefore the Water Board. A journalist attempting to investigate the incident was passed from the state Forest Department, to the state Horticulture Department, to the Corporation Horticulture Department, to the state Tourism Department, to the state Fisheries Department, and back to the state Forest Department, which eventually acknowledged responsibility for the tank, but had not heard of the fish kill (Perry, 2000).

The normative lawyer would be hard pressed to react positively to this picture on any criterion. As the journalist in the above example can testify, jurisdictional overlaps and gaps are not 'productive with minimum waste or effort' (efficient), nor are they likely to promote 'the unbiased application of rules' (justice) or certainty.

3.3 Enforcement

The Head of the Pollution Board of Karnataka in 1995 claimed that his institution held all the powers necessary to fulfil its mandate, and adopted a vigorous approach to controlling and prosecuting pollution. However, it was estimated by one Bangalore academic that the industrial sector compliance rate with Pollution Board standards is about 40-50 per cent (Perry, 2000).

One explanation for this poor compliance rate may be that the Board does not appear to be very effective in prosecuting such behaviour. For example, in the year 1993-1994, 87 complaints were lodged by the Pollution Board in the Karnataka courts for water pollution. Of those complaints, just 44 were resolved in the court (rather than being dismissed). Of the 44 disputes resolved in court, the Board won only 20 (KSPCB, 1995, 52-54). This success rate (less than one in four) is surely not an efficient use of public funds.

Such a disappointing performance may be the result of any number of factors, including the failure to collect and present the evidence of a compelling case, limited environmental law expertise, and poor prosecutorial judgement. One cause of these factors may be lack of staff. Out of 356 sanctioned posts for the Pollution Board, only 203 were filled in 1993-1994. There were no Law Officers, although one position was sanctioned, and only two of a possible six Law Assistants positions were filled (KSPCB, 1995, 31-32). Funding may also be a constraint. Indian Pollution Boards are funded by payments from state governments, but these are often irregular and inadequate, resulting in serious resource problems (Government of Karnataka, 1995, paras. F1-F6; KSPCB, 1995, 31-32).

Pollution Board staffing or funding shortages cannot entirely explain the fact that of those cases which the Board 'won', not one resulted in the defendant being imprisonment or fined. Instead, restraint orders were passed against 19 of the industries; and in the remaining case, the industry was given time to comply with pollution control requirements (KSPCB, 1995, pp 52-54). Some fault for such decisions must lie with the judiciary.

The ultimate sanction available to the Pollution Board is to order a polluting industry to close down. Its success rate in this regard was less than one in seven in 1993-1994. During this period, the Pollution Board had issued a total of 39 closure orders against industries in Karnataka. Of that total, 19 industries were able to obtain stay orders in court, and five managed to get the closure orders revoked. Only five industries actually closed after the order was given. Of the remaining industries, two continued to operate even after the order for closure, a further two industries were shifted to another location, and seven were issued a warning after failing to comply with the closure order (KSPCB, 1995, 52-54). Again, this highly inefficient success rate is probably due to a combination of institutional (executive and judicial) defects.

The success of other executive institutions such as the Water Board and the City Corporation may be limited by the fact that laws do not give them adequate powers. For example, illegal dumping of dangerous effluent into the sewage system is punishable with a commercially insignificant fine of 100 rupees, and a daily fine of 50 rupees until the contravention ceases; and illegal attempts to build on or use the land are punishable by a relatively low fine of up to 1000 rupees, with a further fine of 50 rupees per day for continued breach of the provisions (Water Board Act, 1964, sec. 63(1), 68 and 85, Planning Act, 1961, sec. 73).

Again, whether assessing this state of affairs according to the criteria of efficiency, justice or certainty, the normative lawyer would be unlikely to draw positive conclusions.

4. The 'Active' Lawyer

The 'active' role of the lawyer is to ensure (e.g; by bringing actions before a court) that laws are implemented or adhered to 'properly'. In performing the active role, lawyers can rely on conclusions, which they have drawn from both their positive and normative roles. That is, a lawyer can rely upon what they have found laws and institutions to be, or they can rely upon what they have found that laws and institutions should be, or they can rely on a combination of those conclusions.

Active lawyers may be reactive in that they respond to an existing situation of conflict, which is brought to their attention by a client. Alternatively, they may be proactive, deciding of their own accord to seek legal resolution of an issue affecting urban development. Active lawyers may be conservative, working within the laws and institutions as they stand. Alternatively, they may be revolutionary, seeking to change the face of the legal system by developing new and innovative arguments to challenging environmentally damaging action or inaction on the part of the state or private sector. Consequently, the results, which the active lawyer can achieve, may be constrained or assisted by the laws and institutions and their own desire and professional abilities to manipulate or change them.

It is this active role which most non-lawyers would readily identify as the lawyer's key - if not sole - function. However, most non-lawyers would expect the lawyer's orientation to be mostly conservative and reactive. Typically, the lawyer is presented as mercenary, and with limited powers to manipulate rules. In reality, there is a critical mass of public spirited, revolutionary and proactive lawyers in India. Some operate as free-lance crusaders, individually identifying and pursuing cases of environmental degradation. M C Mehta is one such example, having forced radical changes in the management of small scale industrial waste all over India through the aggressive use of public interest litigation. Others, such as the students of the National Law School in Bangalore, give free legal advice to NGOs and individuals (Perry and Anderson, 1996, 100).

The Indian legal system offers a range of criminal, civil and public law gateways through which active lawyers can facilitate the promotion of urban development goals. As shows, criminal law gateways allow the public to force the government to prosecute environmental damage caused by the private sector; the civil law allows individuals to directly prevent, or seek damages for, environmental damage caused by the other individuals, or state owned service providers; and public law gateways allow individuals to sue the state for its failure to prevent environmental damage by state or private bodies, or to sue the state or private individuals


Gateway

By

Against

Using

Criminal

 

Penal codes

Private sector

Private sector

State prosecution *

 

State body

Private sector

State prosecution

Water, Air, Environment Acts

Private sector

Private sector

State prosecution **

Civil

 

Tort law

Private sector

Private sector

Civil action

Consumer Protection Act

Private sector

Service provider

Consumer action

Public

 

Water, Air, Environment Acts

State body

Private sector

Enforcement etc. action

Constitution

Private sector

State body

Public interest litigation

Environment Tribunal Acts

State/Private

State/Private

Environment action

* Police and/or magistrates investigate allegations of public nuisance made by member of public.
** Pollution control board brings prosecution against polluter when member of public lodges a complaint with court

Table 3: 'Active' Legal Gateways Through Which to Affect Urban Development


4.1 Criminal Law Gateways

The criminal law is usually only available for use by the government. However, members of the public are able to use the Indian criminal law in two ways, for the purpose of protecting the environment. First, under environmental legislation, citizens can lodge a complaint with the courts against illegal pollution of the water, air or general environment. In so doing, they place a duty upon the relevant Pollution Board to begin a criminal prosecution against the polluter (Air Act, 1981, sec. 43, Environment Act, 1986, sec. 19 and Water Act, 1974, sec. 49).

Second, the national criminal codes allow citizens to file complaints for public nuisance in order to stop smoke, smells, and other noxious emissions, including pollution of water, which cause 'common injury, danger or annoyance to the public or to people in general.' Depending on the type of pollution, and whether it is ongoing or anticipated, complaints are made to the police or a magistrate, and offences can be punishable with a fine not exceeding 200 rupees, arrest, and/ or a notice to abate the pollution. Police can investigate the offence, and in some cases, Magistrates may conduct an inquiry and summon expert evidence (Indian Penal Code, 1960, sec. 290, Code of Criminal Procedure, 1973, sec.139, 154, 156, 173, 190, 202, 203).

4.2 Civil Law Gateways

In contrast to criminal procedures that seek to punish, civil law allows individuals to seek remedies such as financial damages from the person who has wronged them, or declarations and injunctions to affect the future behaviour of the wrongdoer[3]. Indian law provides two civil law avenues for protection the urban environment: tort law and consumer law.

4.2.1 Tort Law

Where a person has suffered injury or damage to property, then the wronged party can sue the wrongdoer under the law of torts. It is up to the person who is suing to prove that the wrong occurred (Indian Evidence Act, 1872, sec. 101-103). In environmental cases involving technical matters, it is sometimes difficult or exceedingly costly for an individual to provide such evidence for the court. In addition, civil law suits tend to be slow, costly, and largely ineffective, especially when the remedy sought is financial, rather than a mere injunction (Anderson, 1996, 207-209). For this reason, the civil law is the least attractive legal avenue for environmental protection in India.

The utility of civil remedies is further reduced by laws which stop the courts from considering a matter which is covered by environmental laws. This means that citizens cannot sue each other over factual situations which the Pollution Boards are considering (Water Act, 1974, sec. 58, Air Act, 1981, sec. 46, and Environment Act, 1986, sec. 22, Sreenivasa Distilleries vs. S R Thyagarajan). These provisions do not prevent citizens from challenging the procedural propriety of decisions taken by the Boards. But they do reduce the scope for tort actions considerably, and undermine the authority of the civil courts to provide adequate relief to the public.

4.2.2 Consumer Law

Since 1987, a separate system of courts has existed for resolving consumer disputes[4]. The quality of civic services, such as water supply, can be challenged in these courts, but only if they are paid for by a specific fee, rather than a general tax. This means that in Bangalore, the quality of electricity, transport and water services can all be challenged in consumer courts; but services like road maintenance, garbage collection and sewage disposal, which are paid for indirectly through taxes, cannot (Consumer Protection Act, 1986, sec. 2(1)(d), Water Board Act, 1964, sec. 31). The Bangalore consumer courts have a substantial number of cases pending which relate to the inefficiencies of the Development Authority. Cases have been filed by purchasers who have been unable to move into their new homes for over a year, because no basic amenities have been provided; victims of double allocations of the same plot; and a customer who was forced to pay 5000 rupees in bribes in order to complete basic administrative steps towards buying a property (Perry, 2000).

4.3 Public Law Gateways

Indian law offers three public law gateways through which the lawyer can facilitate the promotion of urban development goals: Public Interest Litigation for contesting government action or inaction; appeals against environmental clearances; and actions for compensation for personal injury or environmental damage from accidents with hazardous substances.

4.3.1 Public Interest Litigation

Under the Constitution of India, individuals and groups can ask the courts to review the behaviour of government officials who have failed to perform their duty, including the duty to curb environmental damage. If the action is successful, the court can issue orders against the government official or authority concerned to force them to perform their duty. Such an action is known as judicial review (Constitution of India, Articles 21, 32, and 226). Actions can be brought against any state body, and are dealt with relatively speedily since they are allowed to bypass the lower courts. Where an individual alleges that the state's behaviour has resulted in a breach of fundamental rights, such as the right to life, the case can be heard directly in the Supreme Court in Delhi, and where any other legal right is to be enforced, the case is heard in the state's High Court. Individuals are often able to take environmental cases directly to the Supreme Court, since the courts have decided that the fundamental 'right to life,' guaranteed under the Constitution, includes a right to a healthy and pollution-free environment.

A revolutionary feature of Indian judicial review is that it can be used by any person, who is acting in good faith, whether they are personally affected by the behaviour in question, or acting in the public interest. Environmental issues, which often affect the general public rather than just individuals, are thus more easily brought to Indian courts. This branch of judicial review is known as Public Interest Litigation (PIL). PIL provides a more efficient and accessible gateway to protect the urban environment. Legal formalities normally associated with starting an action have been loosened for PIL, and judges have been known to convert letters from the public into full petitions (see further, Singh et al, 1993, Rosencranz et al, 1991, Peiris, 1991, Hurra, 1993, Cranston, 1997, Harding, 1992, Cottrell, 1992, 1993, and Anderson 1995, 1996).

In the 1992 a public interest action was brought by concerned citizens against the Government of Karnataka and a private company in the High Court of Karnataka. The petitioners claimed that a government order giving planning permission for a private housing development in the catchment area of Bangalore's second major source of water was illegal since the land was designated for agricultural use under planning law. The court agreed, stating that the government:

'acted totally without jurisdiction … and had done so only on collateral considerations yielding to the influence brought to bear on it by' the private developer. The Court described the behaviour of the government as 'amazing ... most shocking ... unfortunate … astonishing' (Bangalore Water Supply and Sewerage Board vs. Kantha Chandra).

Also in 1992, a group of residents filed a public interest petition against the Government of Karnataka and others, challenging the location of industrial units in an area designated as residential, and supply of services such as water and electricity to those units, in the absence of a formal conversion to industrial land use. The Court found in favour of the petitioners, noting that the state bodies involved had shown:

'imperviousness to duty, callousness … and utter lack of supervisory, administrative and regulatory control over the area in question' (V. Lakshmipathy vs. State of Karnataka).

Some indication of success rates for PIL actions can be found in the Pollution Board's annual report for 1993-1994. It was reported that 65 PIL cases involving the Board had been filed, of which 41 remained pending. Of those, which had been decided, 22 cases were in favour of the Board, and two against (KSPCB, 1995, 54). One explanation for this low success rate may be limited access to information. Efforts to hold state bodies to account for environmental damage are largely reliant on the collection of good scientific data. The ability of the petitioner to collect the data directly may be hampered by limited funds and expertise. On the other hand, attempts to use data collected by state bodies may be hampered by limited rights to access information. The Government of India Ministry of Environment and Forests itself noted in 1999 that:

'failure to comply with the principle of 'Right to know' makes informed public involvement' in the enforcement of environmental law 'rather limited' (Ministry of Environment and Forests, 1999, para 10.1).

4.3.2 Actions for Compensation and Appeals against Environmental Clearance

In recent years, two further revolutionary public law gateways have been introduced to the Indian scene. Each has helped to address gaps left by pre-existing criminal, civil, or public law gateways.

Following the Bhopal disaster and the 1992 United Nations Conference on Environment and Development held in Rio de Janeiro, a special tribunal has been set up to deal with claims for compensation for personal injury or environmental damage resulting from accidents involving hazardous substances other than those associated with war or radioactivity. Claims can be brought by affected individuals, NGOs or government bodies (National Environmental Tribunal Act, 1995). The effect of this Act should be resolution of some of the procedural problems associated with conventional tort law actions (see above) because the Tribunal is not bound by normal rules of court procedure, but rather is to operate flexibly, according to the general principles of natural justice (sec. 5(4)).

In 1997, a special authority has been set up to deal with challenges to environmental clearances, which would allow industries to operate in zones subject to environmental controls. Claims can be brought by affected individuals, groups of individuals, or government bodies. Failure to comply with decisions made under the Act are punishable by imprisonment and/or fines (National Environment Appellate Authority Act, 1997). Again, the introduction of the Authority represents an improvement on traditional methods of legal protest, since the Authority is bound to act according to the flexible principles of natural justice, rather than normal rules of court procedure (sec. 12(1)).

5. Conclusion

As the case of Bangalore demonstrates, lawyers have a complex role to play as facilitators in the urban development process. In their positive role, they map out laws and institutions; in their normative role, they assess the quality of those laws and institutions according to a range of legal and non-legal criteria and suggest possible reforms; and in their active role, they ensure that the legal system operates in practice. Whether lawyers use their powers for good or evil is greatly dependent upon the existing legal system within which they operate, as well as their own skills and convictions.

Endnotes

1. 1995 Bangalore data was collected in conjunction with Michael Anderson, with financial support from the Ford Foundation in New Delhi and the ESRC (Global Environmental Change Programme Grant L320253158). For further information on Bangalore see generally, Perry and Anderson 1996, Perry 1998 and Perry 2000. For current information on Indian environment see Centre for Science and Environment, Central Pollution Control Board, and Karnataka State Pollution Control Board .

2. For the purposes of simplicity, 'in-house' government lawyers are treated as bureaucrats, and their role is not considered in detail.

3. Civil law procedures are governed by the Code of Civil Procedure, 1908.

4. Consumer law and courts are governed by the Consumer Protection Act, 1986, which came into force in 1987. For information on consumer law see the Ministry of Consumer Affairs and Public Distribution, and the Consumer Unity and Trust Society.

Bibliography

Books, Articles, Papers, Newspapers and Official Reports

Anderson, M (1995), 'Public interest perspectives on the Bhopal case: Tort, crime or violation of human rights?' in Robinson D and Dunkley J (eds) Public Interest Perspectives in Environmental Law, London, Wiley Chancery.

Anderson, M (1996), 'Individual rights to environmental protection in India' in Boyle A and Anderson M (eds) Human Rights Approaches to Environmental Protection, Oxford, Clarendon Press.

Bakshi, P (1993), Environmental Law: The Procedural Options, New Delhi, Indian Law Institute.

Cottrell, J (1992), 'Courts and Accountability: Public Interest Litigation in the Indian High Courts', Third World Legal Studies.

Cottrell, J (1993), 'Third Generation Rights and Social Action Litigation' in Adelman S and Paliwala A (eds), Law and Crisis in the Third World, London, Hans Zells Publishers.

Cranston, R (1997), 'Access to Justice in South and South-East Asia', in Faundez J, Good Governance and Law: Legal and Institutional Reform in Developing Countries, London, Macmillan.

Deccan Herald, Bangalore edition, 29 April 1995.

Government of Karnataka (1995), Draft Annual Plan 1995-1996, Volume 2.

Harding, A (1992), 'Public Interest Law and Development in Malaysia', Third World Legal Studies 231.

Hurra, S (1993), Public Interest Litigation, Ahmedabad, Mishra.

Karnataka State Pollution Control Board (KSPCB), (1995), Annual Report of the Pollution Board 1993-1994, Bangalore, Karnataka State Pollution Control Board.

Leelakrishnan, P (1992), (ed) Law and Environment, Lucknow, Eastern Book Co.

Ministry of Environment and Forests, Government of India (1999), State of the Environment Report, <http://envfor.nic.in/soer>.

Paul, S (1995), 'A Report Card on Public Services in Indian Cities: A View from Below', Research Paper No.1, Bangalore, Public Affairs Centre.

Peiris, G L (1991), 'Public Interest Litigation in the Indian Subcontinent: Current Dimensions', 40 International and Comparative Law Quarterly 110.

Perry, A (1998), 'Law and Urban Change in an Indian City', in Fernandes, E and Varley A (eds), Illegal Cities: Law and Urban Change in Developing Countries, London, Zed Books.

Perry, A (2000), 'Sustainable Gateways to Environmental Justice', in Cedric Pugh (ed), Sustainable Cities in Developing Countries, London, Earthscan.

Perry, A and Anderson, M (1996), Access to Environmental Justice in Bangalore: Legal Gateways in Context, Working Paper No. 12, London, Department of Law, SOAS.

Rosencranz, A, Divan, S and Noble, M (1991), Environmental Law and Policy in India: Cases, Materials and Statutes, Mumbai, Tripathi.

Singh, G, Anklesaria, K, and Gonsalves, C (1993), Environmental Activists Handbook, Mumbai, Gonsalves.

Legislation

Air (Prevention and Control of Pollution) Act 1981 (Air Act).

Bangalore Development Authority Act, 1976 (Development Authority Act).

Bangalore Water Supply and Sewerage Act, 1964 (Water Board Act).

Code of Civil Procedure, 1908.

Code of Criminal Procedure, 1973.

Consumer Protection Act, 1986.

Environment Protection Act, 1986 (Environment Act).

Indian Evidence Act, 1872 (Evidence Act).

Indian Penal Code, 1860.

Karnataka Municipal Corporations Act, 1976 (Municipal Corporations Act).

Karnataka Town and Country Planning Act, 1961 (Planning Act).

National Environmental Tribunal Act, 1995.

National Environment Appellate Authority Act, 1997.

Water (Prevention and Control of Pollution) Act, 1974 as amended in 1988 (Water Act).

Cases

Bangalore Water Supply and Sewerage Board vs. Kantha Chandra I.L.R. 1987(I) Karnataka 1617.

Sreenivasa Distilleries v S.R. Thyagarajan AIR 1986 AP 328.

V. Lakshmipathy and others v. State of Karnataka and others AIR 1992 Kant 57.

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