Chief Justice B.N.Sreekrishna and Justice .G.Sivarajan
O.P. Nos. 20716/2002, 17026/2002, 16300/2002 & 29371 of 2001, Dated 8th
December, 2002
ORDER
Srikrishna. C.J.
O.P. Nos. 20716 and 17026 of 2002 admitted.
Respondents waive service through respective counsel.
1. In all these original Petitions the question raised is whether a pesticided
known as ENDOSULFAN by its generic name having different trade names should be
prohibited from being sprayed on agricultural crops.
2. ENDOSULFAN was registered under the provisions of the Insecticides Act
sometime in the year 1968 and has been extensively used there after. As required
under the provisions of the Insecticide Act, 1968 and the Insecticides Rules
1971, extensive tests were carried out before it was registered and permitted to
be used. There have been persistent media reports about the toxicity of this
particular pesticide. There have been repeated complaints made that ENDOSULFAN
has known effects of reproductive toxicity, Genotoxicity, Carcinogenicity, and
endocrinal disruption. Debate as to the toxicity and deleterious effects of
ENDOSULFAN has been carried on in media nd scientific journals for quite
sometime. Recently, there was a hue and cry made by media with regard to the
deleterious effects caused by aerial spraying of ENDOSULFAN by the Plantation
Corporation of Kerala in its cashew estates in the Kasaragod District. In
response to the public outcry, the District Collector of the area banned the use
of ENDOSULFAN by aerial spraying by exercising powers under Section 133 of the
Cr. P.C.. The State Government appointed an expert committee consisting of Dr.
A. Achuthan, a known environmentalist, L. Sundaresan, Senior Additional Director
of Agriculture, Dr. K.P. Aravindan, Associate Professor of Pathology, Dr. Abdul
Salam, Associate Professor and Head of Cashew Research Station, and Dr. Samuel
Mathew, Associate Professor, Kerala Agricultural University. The Committee
headed by Dr. A. Achuthan made extensive study and has also recorded statements
for several representatives of the N.G.O.s, Government Officers, and had made
spot study. It also considered the report made by the Centre for Science and
Environment and made a report on 22nd November, 2001. While the report
reiterates the known toxicity of ENDOSULFAN, the focus appears to have been to
identify if ENDOSULFAN is the culprit for the reported health problems
experienced by the villagers in Padre Village and its surroundings. Even on this
issue, the report of Dr. A. Achuthan Committee appears to be inconclusive in as
much as it states: "there are reports of health problems from three
Panchayath adjacent to the plantations. There is no direct evidence to attribute
these directly to endosulfan pollution; but there is no evidence to completely
deny it."
3. While this was the state of affairs, the National Human Rights Commission suo
motu intervened in the matter in response to the report entitled "Spray of
Misery published in India Today, in its issue dated 23rd July, 2001 and asked a
number of agencies including the Indian Council Medical Research (ICMR), to
submit a report within four weeks. At the request of the Director of ICMR, a
team of experts from the National Institute of Occupational Health (NIOH0
visited the affected areas, collected information and submitted its reported to
the National Human Rights Commission. There has been severe criticism of the
methodology of the study carried out and the conclusions drawn by the CSE,
National Institute of Occupational Health and the Frederic Institute of Plant
Protection and Toxicology (FIPPAT). However, the Government of India being
concerned in the matter, referred the matter to the Registration Committee
constituted under the Insecticides Act for review of the continued registration
of ENDOSULFAN. The Committee has Dr. O.P. Dubey to study the matter in depth and
make its report, keeping all the aspects in mind. This Committee is currently
examining the matter and had even proposed a visit to the concerned area in the
State of Kerala sometime in July, but for some reasons the visit has been
postponed.
4. In response to public demand, the State of Kerala, totally banned the use of
ENDOSULFAN by an order of the Government, dated 25-8-2001. In the meanwhile, the
Pesticide Manufacturers and Formulators Association of India moved O.P. No.
29371 of 2001 in this court and sought quashing of the said Government Order. In
CMP. No. 62352/2001 in this O.P.., one of us (Sivarajan, J.) directed that, if
the Government has already received the report of the expert committee of Dr.
Achuthan, they should take a decision without delay keeping in mind the
provisions of Section 27 of the Insecticides Act. Pursuant to this order, the
State Government reconsidered the matter and made an order dated 18th February,
2002(Ext.P12 in O.P. No.20716 of 2002), wherein, after considering the
provisions of the Insecticides Act, the Government gave the following
directives:-
" (a) Aerial spraying of the endosulfan will continue to be prohibited for all
crops in Kerala considering the difficulties in a hearing to conditions for safe
aerial application of the insecticide in Kerala terrain.
1. Perla division of PCK (covering Padre and Muliyar Village, Kasaragod
District) will observe a pesticide holiday for a period of five years.
2. PCK will undertake only ground based spraying of pesticides in their cashew
plantation after following due safeguards for prevention of contamination of
water bodies in accordance with the package of practices recommended by Kerala
Agricultural University.
3. All spraying operations of PCK in its cashew plantations will be carried out
under the direct technical supervision of a joint Kerala Agricultural
University-PCK Expert Group. This group will provide technical guidance
regarding plant protection operations in PCK cashew estates, recommend the
pesticides to be used in accordance with the recommended package of practices,
prescribe the modalities of application and monitor the spraying operations
conducted by the PCK. It will ensure that health safeguards for workers engaged
in application and for nearby inhabitants are strictly complied with. PCK will
provide necessary logistic support for the Expert Group to carry out these
functions.
4. A small Cashew Research Unit will be set up by the Kerala Agricultural
University in the PCK plantation at Perla utilizing the infrastructure available
with PCK. The mandate of the Unit would be to evolve appropriate plant
protection strategies, assess the impact of application or non-application of
pesticides and identify appropriate cashew varieties and technologies in the
region. Government will provide assistance of Rs. 3 lakhs for the operation of
this Unit from the existing cashew development scheme of the State Government.
5. In the light of the above decisions the prohibition on the use of ENDOSULFAN
for all crops and plantations in Kerala, issued vide order read as 2nd paper
above will withdrawn."
Petitioners in O.P. No. 16300/2001, 17026/2002 and 20716/2002 are dissatisfied
with the order made by the State Government and seek a permanent total ban on
the use of ENDOSULFAN anywhere in the State of Kerala.
5. We have extensively heard the counsel for the petitioners in O.P.
Nos.16300/2001,17026/2002 and 20716/2002 and also the petitioner in O.P. No.
29371/2001. Learned Counsel Mr. Mohammed Youseff for the petitioner in O.P. No.
29371/01 strongly opposes any interim order on the ground that it will amount to
a stigma on ENDOSULFAN which is being used all over the world by reason of its
adverse publicity. He also contends that balance of convenience lies in favour
of not granting even an interim order.
6. Both sides have placed on record copious technical literature and attempted
to persuade us to their respective points of view. After perusing all the
scientific and technical literature, we are of the view that, in a situation
like this, it is not the function of this Court to decide an issue which is
essentially a matter for Technical experts to decide. We notice that there is a
difference of opinion within the scientific community itself as to the toxicity
of ENDOSULFAN. In any event, the Central Government has already appointed a body
of experts to advise it on the review of registration of ENDOSULFAN, which today
is a permitted insecticide under the Insecticides Act. The said expert committee
is yet to make a studied report which will be considered by the Central
Government before appropriate action is taken under the Insecticide Act. In
these circumstances, it appears to us that making an order to prohibit
permanently the usage of ENDOSULFAN would be improper.
7. It is contended for the petitioners in O.P. Nos. 16300/2001, 17026/2002 and
20716/2002 that the Government Order dated 18-2-2002 issued by the Government of
Kerala is virtually an admission of the toxic effects of aerial spraying
ENDOSULFAN. Not only does the Government Order prohibit totally the aerial
spraying of ENDOSULFAN all over the State of Kerala, it also directs the
Plantation Corporation of Kerala to declare a five year pesticide holiday in the
Perla Division. Counsel for these petitioners contend that, if the Government
was satisfied about the harmful effect of usage of ENDOSULFAN in Kasaragod
District, there is no reason why it should not be considered harmful in other
areas also. Hence, they press for a permanent total ban on its usage all over
the State. For the petitioner in O.P. No. 29371 of 2001 (Pesticides
Manufacturers and Formulators Association of India), it is contended that,
without clinching evidence as to the toxicity of ENDOSULFAN banning its use in
writ jurisdiction would cause incalculable harm. A powerful pesticide which has
gained wide currency and acceptability, and has proved its usefulness, would be
put out of use, exposing vital agricultural crops to the danger of pests and
insects.
8. Mr. Rajendran Nair, for the petitioner in O.P. No. 17026/2002 brought to our
attention, the judgement given by State Council, Court of Justice of the
Administrative Contentious First Section, Bogota D.C. 23rd March, 2001 the
result of which is to prohibit the use of ENDOSULFAN totally. He also drew our
attention to the fact that though the World Health Organization has categorized
ENDOSULFAN as "moderate to highly toxic", the United States Environmental
Protection Agency has classified it as "highly toxic". Even under Rule 19 of the
Insecticides Rule 1971, this substance has been declared to be highly toxic.
9. At this point, we are not in a position to impose a permanent total ban on
the sale and distribution of ENDOSULFAN when the expert committee appointed by
the central Government is still seized of the problem. We are therefore, left
with the question as to what should be done during the interregnum till the
experts committee decides the issue.
There are two options open:- (1) to impose a temporary ban on the sale and
distribution of ENDOSULFAN within the State of Kerala pending decision of the
Central Government; (ii) to permit the use of ENDOSULFAN without restriction
during the aforesaid period.
10. After anxious soul-searching, we have reached the conclusion that between
the two alternatives, we must err on the safer side and choose the alternative
which has less dangerous implications. If, ultimately, it is proved that
ENDOSULFAN is an innocuous substance, not toxic and dangerous to human life and
health, prohibiting its sale and distribution for a few months may perhaps
result in nothing more than economic loss to the manufacturers. It is not as if
the agricultural production in this country would come to a stand still if
ENDOSULFAN is not used. There are several other insecticides which are
registered under the Insecticides Act which could be used with equal efficiency.
On the other hand, if it turns out that it is a toxic substance and its
continued use has adverse effects on human health and life and environment, we
would have endangered life and health of the citizens. We have, therefore,
decided to choose the lesser evil and, purely as a precautionary measure, to
impose a temporary ban on the use of ENDOSULFAN within the State pending the
decision of the Central Government on consideration of the report of the expert
committee appointed by it. We hope that the Central Government will expedite its
decision.
11. In the result, we make the following order:-
1. Pending further decision by the Central Government in the light of the advice
tendered to it by the expert committee appointed to consider the hazards of
ENDOSULFAN, the use of ENDOSULFAN, or any of its formulations under any of the
trade names, shall not be permitted within the State until further orders with
liberty to the parties to move for modification of this order in the light of
the report of the expert committee and the decision taken by the Central
Government in the matter.
2. We make it clear that we have not passed the above interim order by holding
that ENDOSULFAN is inherently dangerous, but purely as a precautionary and
defensive measure, as, in our view, balance of convenience lie in granting
interim prohibitory order during the period when the matter is pending
consideration before the Central Government.
3. Mr. Mohammed Yousuff, requests us that this order may be stayed to enable his
client to move the Supreme Court. Request declined.
Handover, to both sides.