BAIJU K G & ORS versus DR V P JOY
[2022] 3 S.C.R. 569, Supreme Court of India, 2022
Outcome: Directions issued
Segment: Body
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   [2022] 3 S.C.R. 569
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BAIJU K G & ORS
v.
DR V P JOY
(Contempt Petition (Civil) No. 244 of 2021)
In
Writ Petition (Civil) No. 213 of 2011
MAY 13, 2022
[DR. DHANANJAYA Y CHANDRACHUD AND
SURYA KANT, JJ.]
Contempt of Court – Writ petition filed by persons affected
by the use of Endosulfan – Case of petitioners was that the use of
toxic pesticide called Endosulfan led to spread of mental and
physical ailments amongst residents of areas that were impacted by
its use – The Court on 10.01.2017 had directed the State Government
to compensate by distributing Rs.5 lakhs to each affected persons
within three months – The Court had also directed the State
Government to consider the feasibility of providing medical facilities
and treatment for life long ailments arising from the effects of
Endosulfan considering larger number of persons affected – A team
of officials from the Health and Revenue departments visited homes
of 3704 victims to whom compensation was not yet provided and
noticed that out of these victims, 102 were bedridden, 326 were
mentally disabled, 201 were physically disabled, 119 were afflicted
with cancer while 2966 fell in the residual category and the State
Government of Kerala virtually did nothing for five years – The
State Government took decision on 15.01.2022 authorizing disbursal
of an additional amount of Rs.200 crores for compensation to the
victims of Endosulfan – As of date, an amount of Rs 5 lakhs has
been disbursed to only eight
persons who are the petitioners who
have moved these contempt proceedings – There is no rationale on
part of State Government in disbursing compensation only to those
having the ability to move this Court – The inordinate delay in
compensating the persons affected by the use of Endosulfan not
only reflects failure on part of State Government in complying with
Court’s order but also further compounds the violation of the
fundamental rights of such persons – That apart, in order dated
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[2022] 3 S.C.R.
10.01.2017, the State Government was directed to consider the
feasibility of providing medical facilities to deal with life-long health
issues arising out of the effects of Endosulfan – State Government
has not disclosed what steps it took to provide for medical treatment
and rehabilitation to these victims – The right to health is an integral
part of the right to life under Art.21 of the Constitution – The victims
who are suffering ought to have been provided immediate relief
and rehabilitation – Therefore, directions passed to Chief Secretary
to ensure that order dated 10.01.2017 is diligently implemented –
Eight petitioners be paid cost of Rs.50,000 – Contempt petition to
be listed on 18.07.2022.
Directing to list the contempt petition on 18.07.2022, the
Court
HELD : (i) Since the payment of compensation has been
made, though belatedly to eight petitioners who have moved
these proceedings, costs quantified at Rs 50,000 each shall be
paid over in addition to each of the eight persons within a period
of three weeks from the date of this order; (ii) The Chief Secretary
shall hold monthly meetings to ensure that the judgment of this
Court dated 10.01.2017 is diligently implemented by undertaking
the process of (a) identifying the victims of Endosulfan and drawing
up a list of beneficiaries; (b) ensuring the disbursement of
compensation of Rs 5 lakhs to each of the victims; and (c) taking
steps for ensuring due medical
facilities within reasonable distance
from their places of residence in terms of the earlier directions
of this Court. (iii) An affidavit of compliance shall be filed
before this Court indicating the progress which has been made
between the date of this order and the next date of listing.
[Para 5][574-B-E]
Nilabati Behera v. State of Orissa (1993) 2 SCC 746 :
[1993] 2 SCR 581 – relied on.
Case Law Reference
[1993] 2 SCR 581
relied on
Para 4
INHERENT JURISDICTION :Contempt Petition (Civil) No. 244
of 2021.
In
Writ Petition (Civil) No. 213 of 2011.
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(Under Article 32 of The Constitution of India)
P. N. Ravindran, Sr. Adv., P. S. Sudheer, Rishi Maheshwari, Ms.
Shruti Jose, Bharat Sood, Advs. for the Petitioners.
Nishe Rajen Shonker, Mrs. Anu K. Joy, Alim Anvar, Advs. for the
Respondent.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
1. A contempt petition has been instituted before this Court by the
residents of Kasargod district in Kerala who were affected by the use
of a toxic pesticide called Endosulfan. The use of the pesticide led to a
spread of mental and physical ailments among residents of areas that
were impacted by its use. A writ petition was instituted before this Court
by the persons affected by the use of Endosulfan. This Court by its
order dated 10 January 2017 directed the State Governments to
compensate all the affected persons by distributing an amount of Rs 5
lakhs to each affected person within three months. This Court also
directed the State Governments to consider the feasibility of providing
medical facilities and treatment for life-long ailments arising from the
effects of Endosulfan, considering the larger number of affected persons.
It is submitted by the petitioners, whose names are mentioned in the list
of Endosulfan victims prepared by the Government of Kerala, that the
Government has failed to comply with the order. The petitioners are yet
to be compensated and the medical facilities have not been improved
because of which the affected persons
in Kasargod District are
compelled to travel to Trivandrum, about 600 kms away for their
treatment.
2. A compliance report dated 9 May 2022 has been filed by the
Chief Secretary to the Government of Kerala. The report indicates that
on 16 March 2022, the Chief Secretary convened a meeting in connection
with the need for disbursing compensation to the victims of Endosulfan,
in compliance with the judgment of this Court dated 10 January 2017. A
team of officials from the Health and Revenue departments has been
constituted to visit the homes of 3704 victims to whom compensation is
yet to be provided. Of these victims, 102 are found to be bedridden, 326
to be mentally disabled, 201 to be physically disabled, 119 to be afflicted
with cancer while 2966 fall in the residual category. The Government of
BAIJU K G & ORS v. DR V P JOY
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Kerala has done virtually nothing for five years. Besides the fact that
the 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 January
2022 by issuing GO(Rt) No 1877/2022/Fin to authorize the disbursal of
an additional amount of Rs 200 crores for providing compensation to the
victims of Endosulfan. As of date, an amount of Rs 5 lakhs has been
disbursed only to eight persons who are the petitioners who have moved
these contempt proceedings. We fail to understand the logic or the
rationale of the State Government in disbursing compensation only to
those who have the ability to move this Court.
4. There are a large number of victims to whom no compensation
has been provided despite the passage of over five years since the date
of the judgment of this Court. Most of the victims, as the data before the
Court indicates, are from the marginalized segments of society. Many of
the victims are in a serious condition to whom compensation on an urgent
basis has to be provided. In Nilabati Behera v. State of Orissa1, this
Court had discussed the basis of awarding compensation in public law
proceedings. This Court had observed that the onus of a public wrong
can be attributed to the State if it fails to protect the fundamental rights
of the citizenry and compensation can be awarded in such cases.  Justice
AS Anand in his concurring opinion had observed
that:
“34. The public law proceedings serve a different purpose than
the private law proceedings. The relief of monetary compensation,
as exemplary damages, in proceedings under Article 32 by this
Court or under Article 226 by the High Courts, for established
infringement of the indefeasible right guaranteed under Article 21
of the Constitution is a remedy available in public law and is based
on the strict liability for contravention of the guaranteed basic and
indefeasible rights of the citizen. The purpose of public law is
not only to civilize public power but also to assure the citizen
that they live under a legal system which aims to protect
their interests and preserve their rights. Therefore, when
the court moulds the relief by granting “compensation” in
proceedings under Article 32 or 226 of the Constitution
seeking enforcement or protection of fundamental rights,
it does so under the public law by way of penalising the
1 (1993) 2 SCC 746
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wrongdoer and fixing the liability for the public wrong on
the State which has failed in its public duty to protect the
fundamental rights of the citizen. The payment of
compensation in such cases is not to be understood, as it is
generally understood in a civil action for damages under
the private law but in the broader sense of providing relief
by an order of making ‘monetary amends’ under the public
law for the wrong done due to breach of public duty, of not
protecting the fundamental rights of the citizen. The
compensation is in the nature of ‘exemplary damages’ awarded
against the wrongdoer for the breach of its public law duty and is
independent of the rights available to the aggrieved party to claim
compensation under the private law in an action based on tort,
through a suit instituted in a court of competent jurisdiction or/and
prosecute the offender under the penal law.
35. This Court and the High Courts, being the protectors of the
civil liberties of the citizen, have not only the power and jurisdiction
but also an obligation to grant relief in exercise of its jurisdiction
under Articles 32 and 226 of the Constitution to the victim or the
heir of the victim whose fundamental rights under Article 21 of
the Constitution of India are established to have been flagrantly
infringed by calling upon the State to repair the damage done by
its officers to the fundamental rights of the citizen, notwithstanding
the right of the citizen to the remedy by way
of a civil suit or
criminal proceedings…”
(emphasis supplied)
The inordinate delay by the State Government in compensating
the persons affected by the use of Endosulfan not only reflects its failure
to comply with the order of this Court but also further compounds the
violation of the fundamental rights of such persons. The failure to redress
the infringement of their fundamental rights becomes more egregious
with 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 providing
medical facilities or treatment to deal with life-long health issues arising
out of the effects of Endosulfan, particularly having regard to the large
number of persons involved. The State Government has not disclosed
BAIJU K G & ORS v. DR V P JOY
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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what steps it has taken to provide for medical treatment and rehabilitation
to these victims. The right to health is an integral part of the right to life
under Article 21 of the Constitution. Without health, the faculties of living
have little meaning. We would be justified in taking recourse to the
coercive arm of law. However, our immediate concern is providing relief
and rehabilitation to the victims who are suffering. We accordingly issue
the following directions:
(i)
Since the payment of compensation has been made, though
belatedly to eight petitioners who have moved these
proceedings, costs quantified at Rs 50,000 each shall be
paid over in addition to each of the eight persons within a
period of three weeks from the date of this order;
(ii)
The Chief Secretary shall hold monthly meetings to ensure
that the judgment of this Court dated 10 January 2017 is
diligently implemented by undertaking the process of (a)
identifying the victims of Endosulfan and drawing up a list
of beneficiaries; (b) ensuring the disbursement of
compensation of Rs 5 lakhs to each of the victims; and (c)
taking steps for ensuring due medical facilities within
reasonable distance from their places of residence in terms
of the earlier directions of this Court.
(iii)
An affidavit of compliance shall be filed before this Court
indicating the progress which has been made between the
date of this order and the next date of listing.
6. List the
Contempt Petition on 18 July 2022.
Devika Gujral
Directions issued.