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Endosulfan Issue | Article 21 | Legal Service Authority | Relevance for UPSC Law Optional

Important for Law of Tort (Strict Liability) | Constitutional Law (Fundamental Rights & Legal Service Authority)


WHAT IS ENDOSULFAN?

  • Around 1970, Endosulfan is used by farmers for aerial spraying on crops like cotton, cashew, fruits, tea, paddy, tobacco etc. for control of pests in agriculture such as whiteflies, aphids, beetles, worms etc.

  • Use of endosulfan banned by Stockholm Convention on Persistent Organic Pollutants as it will have hazardous effects on human genetic and endocrine systems.


RELEVANCE FOR UPSC LAW OPTIONAL?

2011: The Supreme Court of India banned manufacture, sale, and use of toxic pesticide endosulfan in India.

2017 : SC had ordered that the State government pay ₹5 lakh each to the victims in three months. 2022 :

  • 18.03.2022 : Endosulfan victims have accused the kerala government of taking no steps for the establishment of a centralised palliative care hospital in Kasaragod despite a Supreme Court order five years ago to provide medical facilities and treatment to them.

  • 13.05.2022: The supreme Court in Baiju K G & Ors v. Dr. VP Joy slammed the Kerala Govt. for not taking proper steps for the Endosulfan 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.
  • 18.08.2022 : The Supreme Court on directed the Kasargod District Legal Services Authority in Kerala to inspect the medical and palliative care facilities provided to endosulfan victims by visiting district hospitals, community and primary health centres to get a thorough and objective assessment of the ground situation.

Important Observation of Supreme Court in the Above-said case. [Relevant for Tort Law | Strict Liability]

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 Orissa (1993) 2 SCC 746 CP(C) 244/2021 , 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 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 remedy by way of a civil suit or criminal proceedings…”


Also read | Role of Legal Service Authority | Since in this case, the district LSA was asked to check the medical facilities provided to endosulfan victims.

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