BAIJU K G & ORS versus DR V P JOY on 13 May 2022

1. A contempt petition has been instituted before this Court by theresidents of Kasargod district in Kerala who were affected by the useof a toxic pesticide called Endosulfan. The use of the pesticide led to aspread of mental and physical ailments among residents of areas thatwere impacted by its use. A writ petition was instituted before this Courtby the persons affected by the use of Endosulfan. This Court by itsorder dated 10 January 2017 directed the State Governments tocompensate all the affected persons by distributing an amount of Rs 5lakhs to each affected person within three months. This Court alsodirected the State Governments to consider the feasibility of providingmedical facilities and treatment for life-long ailments arising from theeffects of Endosulfan, considering the larger number of affected persons.It is submitted by the petitioners, whose names are mentioned in the listof Endosulfan victims prepared by the Government of Kerala, that theGovernment has failed to comply with the order. The petitioners are yetto be compensated and the medical facilities have not been improvedbecause of which the affected persons in Kasargod District arecompelled to travel to Trivandrum, about 600 kms away for theirtreatment.

2. A compliance report dated 9 May 2022 has been filed by theChief Secretary to the Government of Kerala. The report indicates thaton 16 March 2022, the Chief Secretary convened a meeting in connectionwith the need for disbursing compensation to the victims of Endosulfan,in compliance with the judgment of this Court dated 10 January 2017. Ateam of officials from the Health and Revenue departments has beenconstituted to visit the homes of 3704 victims to whom compensation isyet to be provided. Of these victims, 102 are found to be bedridden, 326to be mentally disabled, 201 to be physically disabled, 119 to be afflictedwith cancer while 2966 fall in the residual category. The Government of A

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AKerala has done virtually nothing for five years. Besides the fact thatthe delay is appalling, the inaction is in breach of the orders of this court.

3. The State Government has now taken a decision on 15 January2022 by issuing GO(Rt) No 1877/2022/Fin to authorize the disbursal ofan additional amount of Rs 200 crores for providing compensation to theBvictims of Endosulfan. As of date, an amount of Rs 5 lakhs has beendisbursed only to eight persons who are the petitioners who have movedthese contempt proceedings. We fail to understand the logic or therationale of the State Government in disbursing compensation only tothose who have the ability to move this Court.

C4. There are a large number of victims to whom no compensationhas been provided despite the passage of over five years since the dateof the judgment of this Court. Most of the victims, as the data before theCourt indicates, are from the marginalized segments of society. Many ofthe victims are in a serious condition to whom compensation on an urgentbasis has to be provided. In Nilabati Behera v. State of Orissa[1], thisDCourt had discussed the basis of awarding compensation in public lawproceedings. This Court had observed that the onus of a public wrongcan be attributed to the State if it fails to protect the fundamental rightsof the citizenry and compensation can be awarded in such cases. JusticeAS Anand in his concurring opinion had observed that:

E“34. The public law proceedings serve a different purpose thanthe private law proceedings. The relief of monetary compensation,as exemplary damages, in proceedings under Article 32 by thisCourt or under Article 226 by the High Courts, for establishedinfringement of the indefeasible right guaranteed under Article 21Fof the Constitution is a remedy available in public law and is basedon the strict liability for contravention of the guaranteed basic andindefeasible rights of the citizen. The purpose of public law isnot only to civilize public power but also to assure the citizenthat they live under a legal system which aims to protecttheir interests and preserve their rights. Therefore, whenGthe court moulds the relief by granting “compensation” inproceedings under Article 32 or 226 of the Constitutionseeking enforcement or protection of fundamental rights,it does so under the public law by way of penalising the 1 (1993) 2 SCC 746H

wrongdoer and fixing the liability for the public wrong onthe State which has failed in its public duty to protect thefundamental rights of the citizen. The payment ofcompensation in such cases is not to be understood, as it isgenerally understood in a civil action for damages underthe private law but in the broader sense of providing reliefby an order of making ‘monetary amends’ under the publiclaw for the wrong done due to breach of public duty, of notprotecting the fundamental rights of the citizen. Thecompensation is in the nature of ‘exemplary damages’ awardedagainst the wrongdoer for the breach of its public law duty and isindependent of the rights available to the aggrieved party to claimcompensation under the private law in an action based on tort,through a suit instituted in a court of competent jurisdiction or/andprosecute the offender under the penal law.

35. This Court and the High Courts, being the protectors of thecivil liberties of the citizen, have not only the power and jurisdictionbut also an obligation to grant relief in exercise of its jurisdictionunder Articles 32 and 226 of the Constitution to the victim or theheir of the victim whose fundamental rights under Article 21 ofthe Constitution of India are established to have been flagrantlyinfringed by calling upon the State to repair the damage done byits officers to the fundamental rights of the citizen, notwithstandingthe right of the citizen to the remedy by way of a civil suit orcriminal proceedings…”

(emphasis supplied)

The inordinate delay by the State Government in compensatingthe persons affected by the use of Endosulfan not only reflects its failureto comply with the order of this Court but also further compounds theviolation of the fundamental rights of such persons. The failure to redressthe infringement of their fundamental rights becomes more egregiouswith each passing day.

5. That apart, in the order of this Court dated 10 January 2017,the State Government was directed to consider the feasibility of providingmedical facilities or treatment to deal with life-long health issues arisingout of the effects of Endosulfan, particularly having regard to the largenumber of persons involved. The State Government has not disclosed A

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Awhat steps it has taken to provide for medical treatment and rehabilitationto these victims. The right to health is an integral part of the right to lifeunder Article 21 of the Constitution. Without health, the faculties of livinghave little meaning. We would be justified in taking recourse to thecoercive arm of law. However, our immediate concern is providing reliefand rehabilitation to the victims who are suffering. We accordingly issueBthe following directions:

(i) Since the payment of compensation has been made, thoughbelatedly to eight petitioners who have moved theseproceedings, costs quantified at Rs 50,000 each shall bepaid over in addition to each of the eight persons within aCperiod of three weeks from the date of this order;

(ii) The Chief Secretary shall hold monthly meetings to ensurethat the judgment of this Court dated 10 January 2017 isdiligently implemented by undertaking the process of (a)identifying the victims of Endosulfan and drawing up a listDof beneficiaries; (b) ensuring the disbursement ofcompensation of Rs 5 lakhs to each of the victims; and (c)taking steps for ensuring due medical facilities withinreasonable distance from their places of residence in termsof the earlier directions of this Court.

E(iii)An affidavit of compliance shall be filed before this Courtindicating the progress which has been made between thedate of this order and the next date of listing.

6. List the Contempt Petition on 18 July 2022.

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Devika Gujral

Directions issued.

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