A committee to exonerate industry?

From 1979, the chemical endosulfan began to be extensively sprayed aerially in the cashew plantations of the Plantation Corporation of Kerala (PCK) spread over 2209 hectares in various divisions of Kasargod district in Kerala. Soon after, reports of unusual health disorders started coming in from villages like Vaninagar, Adur, Mulleria, Padre, and Kallar. Disorders of the central nervous system, cerebral palsy, mental and physical retardation, epilepsy and congenital anomalies became very common in the region.

There were also many cases of liver cancer, blood cancer, infertility, miscarriage, hormonal imbalance, skin diseases and asthma. Around a thousand people died, more than 2300 are even today either bed-ridden or require assistance for living, and at least 1600 others are suffering from less debilitating ailments. The list is also ever expanding. Thanal, an NGO involved in research and rehabilitation in the area, estimates the final figure of affected persons to be between 8000 to 10,000.

Starting with Dr Y S Mohankumar, who was the first to link the spraying of endosulfan to the unnatural disorders that gradually enveloped a large community, a whole generation of social/health workers and voluntary organisations have involved themselves in the palliative care and rehabilitation of endosulfan victims. It is due to their incessant interventions and agitation, which included fasts, conventions, awareness camps and the like, that the victims are getting some succour.

Successive governments, regardless of the combination of parties in power, remained mulish and unmoved for a large part of the last three decades. It was only in 2008 that the Kerala government owned up to some responsibility in the matter, when V S Achutanandan, Chief Minister at the time, distributed relief amounts to the next of kin of 135 deceased victims.

By this time, the clamour was loud and clear that the victims, both the dead and the living-dead, had to be paid compensation. It was seen as a right and as the only way to set right a massive wrong. There were several factors ranging from money to manpower that had deterred many victims or their relatives from going to the civil court earlier. More discouraging was the bitter experiences of those who had approached the courts as well as the time that had lapsed, making most of the appeals barred by the statutes of limitation. It was in this background that a demand for setting up of a tribunal gathered strength.

"The people of Kasargod and the activists expected those responsible for the tragedy, be it the PCK, the endosulfan manufacturers or institutions like the agricultural university which gave the wrong advice, to be fixed by the tribunal," says Jayakumar of Thanal. And a tribunal would help to avoid all the cumbersome delays and expenditure of claiming compensation by approaching a civil court.

However, instead of directly constituting a tribunal, the government constituted a committee with retired high court judge C N Ramachandran Nair as chairman and the Director General of Prosecution and the Law Secretary to the government as members. The task of the committee was to "report on the need to constitute a tribunal to settle claims of endosulfan victims of Kasargod and also to examine the possibility of recovering compensation from Plantation Corporation and endosulfan companies."

Committee report

Even as the committee recommended the setting up of a single judge tribunal, it had altogether different ideas about the terms of reference. "We have to state that the existing law of the country permits any victim to proceed in tort against the plantation company and if required against endosulfan manufacturers and suppliers before a civil court to claim damages," says the committee report. "On the other hand, victims have received compensation in part and are receiving monthly pension, ration, medical, education and other assistance rendered by the government as part of the implementation of the recommendations of the NHRC."

The latter statement relates to the report dated 31 December 2010 from the National Human Rights Commission (NHRC) that had recommended 'solacium' to the victims upto a maximum of five lakh rupees. The total amount required for this, Rs.120 crores was to be shared equally by the PCK and the government. PCK had paid Rs 27.40 crores in May 2012. Since the plantation company is already paying an amount, the committee seems to be emphatic that the proposed tribunal should not entertain any litigation against the corporation seeking further compensation.

Activist and writer M A Rehman points out that what the NHRC had recommended was 'solacium' and not 'compensation'. Solacium is only interim relief. Dr Asheel, Nodal Officer, Endosulfan Rehabilitation explains how the compensation should be arrived at in such cases: "If a child is crippled or becomes mentally retarded, the compensation should be based on what the child lost in his or her future life due to the spraying of endosulfan." It cannot even be likened to insurance payment to the victim of a road accident, because in that case, negligence could be alleged on the part of the victim. "But here the innocents were inside their homes."

The committee also goes on to protect the endosulfan companies from being brought under the scanner of the proposed tribunal on the argument that these companies were given a licence to produce the chemical under the Insecticides Act of the central government. Thus they are most likely to be exonerated on the grounds that their actions were legal in nature. In this context, Dr Asheel however points out that studies as early as 1979 had warned about the deleterious effects of the pesticide and hence, no one can shun responsibility. The approach of the committee thus appears to be almost akin to exonerating the perpetrators.

Having poured water over the two burning issues of the victims, the committee addresses the source of funds for future and seems to be clear that the liability to pay compensation should be taken over by the government. It can however 'expect' contribution from the central government, banks and other public undertakings, the plantation corporation and the endosulfan manufacturers like Hindustan Insecticides Ltd. It should be noted, however, that contributions by the latter parties are viewed as voluntary charity and also that the corporation and the insecticide manufacturers are placed on par with financial institutions that had nothing to do with the whole episode.

The biggest let-down in the committee's report perhaps lies in the fact that it has sought to put a ceiling on the compensation to be adjudicated by the tribunal. NHRC had fixed a maximum amount for various types of disabilities, the highest being five lakh rupees. The committee says that the total amount received by a victim, including the amount that the tribunal may decide to award him, should not exceed the ceiling prescribed by NHRC.

Identifying victims

That practically leaves only one job for the tribunal. Eliminate and include. There are allegations that a few are getting solacium or pension even though they are not endosulfan victims. The 'Plantation Protection Samithi' - an organisation of workers of the PCK keen to protect their livelihoods - has alleged that even those who fell down from the coconut tree or those who suffer from working in hazardous conditions in the Gulf countries have now become beneficiaries. On the other hand, P K Sudheerbabu, Deputy Collector, Endosulfan Victims Relief Cell says that the names of 28 among the dead have not been included in the list of the endosulfan victims due to the disputes raised by the Samithi.

And then, there is the question of inclusion. Exclusion or inclusion is at present being decided through a series of screenings, starting at the Primary Health Centre and concluding with a medical board comprised of experts from all specialities. Is there a need for a judicial review of the medical adjudication is the moot question.

Insufficient relief The living dead

Also, given the fact that the time taken for endosulfan to break down into the soil is six years, and aerial spraying was halted only in 2000, are there possibilities of new victims? Dr Asheel says there are no chances of further contamination due to environmental reasons. "Now in Kasagod, endosulfan is found only in human blood and human fat." He, however, explains that a girl who has been exposed to endosulfan during the reproductive period of her life, could cause symptoms in her child. So, genetic or perinatal reasons may persist.

A clouded future

Jayakumar also raises the issues of social rehabilitation, environmental rehabilitation and rejuvenation that a properly assigned tribunal could look into. "More than the compensation, I'm concerned about the fate of hundreds of children who are now 17 or 18; those who cannot manage their daily life without assistance," says Vigneswara Bhat, president of Kallar panchayat. "Now their parents or someone else is there to take care of them. But what happens when the parents or caregivers die?"

Bhat says there are hundreds of such children in Kasargod district whose future hangs in the balance. The tribunal should be able to do something to help them, he feels. He is also hopeful of an effective and helpful tribunal being set up, despite the restrictive report presented by the Justice Ramachandran Committee.

It is difficult, however, to share the optimism of the panchayat president if you scan the checkered history of endosulfan victims in Kasargod. Every opportunity has been used by the establishment for prevarication, postponement, inaction and abdication of responsibility. A report of this kind with an aura of judicial respectability can always be highlighted as one more convenient excuse.