Baiju K.G vs Dr. V. P. Joy

Reportable

IN THE SUPREME COURT OF INDIA INHERENT JURISDICTION

Contempt Petition (Civil) No 244 of 2021 in Writ Petition (Civil) No 213 of 2011

Baiju K G & Ors ... Petitioner(s)

Versus

Dr V P Joy ... Respondent(s)

JUDGMENT

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

Signature Not Verified use of Endosulfan. This Court by its order dated 10 January 2017 directed Digitally signed by Sanjay Kumar Date: 2022.05.16 11:08:46 IST Reason: CP(C) 244/2021 2

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 Kerala has done virtually nothing for

five years. Besides the fact that the delay is appalling, the inaction is in CP(C) 244/2021 3

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

1 (1993) 2 SCC 746 CP(C) 244/2021 4

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 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 CP(C) 244/2021 5

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 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 CP(C) 244/2021 6

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.

…………...…...….......………………........J. [Dr Dhananjaya Y Chandrachud]

…..…..…....…........……………….…........J. [Surya Kant]

New Delhi;

May 13, 2022 CKB CP(C) 244/2021 7

ITEM NO.29 COURT NO.4 SECTION PIL-W

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

CONMT.PET.(C) No.244/2021 in W.P.(C) No.213/2011

BAIJU K.G & ORS. Petitioner(s)

VERSUS

DR. V.P. JOY Respondent(s)

(With IA No.30400/2021 - EXEMPTION FROM FILING O.T.)

Date : 13-05-2022 These matters were called on for hearing today.

CORAM :

HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE SURYA KANT

For Petitioner(s) Mr. P.N. Ravindran, Sr. Adv.

Mr. P.S. Sudheer, AOR Mr. Rishi Maheshwari, Adv.

Ms. Shruti Jose, Adv.

Mr. Bharat Sood, Adv.

For Respondent(s) Mr. Nishe Rajen Shonker, AOR Mrs. Anu K. Joy, Adv.

Mr. Alim Anvar, Adv.

UPON hearing the counsel the Court made the following O R D E R

1 In terms of the signed reportable judgment, the following directions are

issued:

CP(C) 244/2021 8

(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.

2 List the Contempt Petition on 18 July 2022.

(CHETAN KUMAR) (SAROJ KUMARI GAUR) A.R.-cum-P.S. Court Master

(Signed reportable judgment is placed on the file)