BAIJU K G & ORSversusDR V P JOY

                          [2022] 3 S.C.R. 569                            569


                        BAIJU K G & ORS                                  A
                                  v.
                            DR V P JOY
             (Contempt Petition (Civil) No. 244 of 2021)
                                  In                                     B
                 Writ Petition (Civil) No. 213 of 2011
                            MAY 13, 2022
         [DR. DHANANJAYA Y CHANDRACHUD AND
                         SURYA KANT, JJ.]                                C
       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        D
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       E
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       F
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        G
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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                                 569
570              SUPREME COURT REPORTS                       [2022] 3 S.C.R.


A     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
B
      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.
C            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
D     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
E     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
F     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
G     [1993] 2 SCR 581                 relied on                 Para 4
            INHERENT JURISDICTION :Contempt Petition (Civil) No. 244
      of 2021.
            In
H           Writ Petition (Civil) No. 213 of 2011.
                 BAIJU K G & ORS v. DR V P JOY                                571


      (Under Article 32 of The Constitution of India)                         A
      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.
                                                                              B
      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     C
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         D
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          E
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.                                                                    F
       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
                                                                              G
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
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572               SUPREME COURT REPORTS                           [2022] 3 S.C.R.


A     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
B     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.
C            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
D     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:
E              “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
F              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
G              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
H
                BAIJU K G & ORS v. DR V P JOY                                    573
           [DR. DHANANJAYA Y CHANDRACHUD, J.]

      wrongdoer and fixing the liability for the public wrong on                 A
      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
                                                                                 B
      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        C
      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   D
      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     E
      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              F
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.
                                                                                 G
       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
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574                 SUPREME COURT REPORTS                        [2022] 3 S.C.R.


A     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
B
      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
C                     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
D                     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.
E            (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.

F
      Devika Gujral                                                  Directions issued.




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