The Bench comprising the Chief Justice, B.N. Srikrishna and Justice G. Sivarajan, issued the order with liberties to the parties in the writ petitions for modification in the light of the report of the advisory committee appointed by the Central Government and the decision taken by it (Centre) in the matter.

Passing the order, the Judges said that they were left with the question whether they should ban the pesticide during the period that might be taken by the committee to decide the issue or not.

The solution was two fold — temporary ban on the sale and distribution of the pesticide and its use without any restriction.

If it was of the view that endosulfan was an innocuous substance, and not toxic, the stay of sale and distribution of the pesticide meant that none of the companies could manufacture it.

If it was toxic, the Bench would become a party to endangering the life of citizens.

Therefore, the court said that it decided to choose the lesser of the two evils and impose a temporary ban on the use of endosulfan.

The ban order was imposed on the writ petitions filed by the Nature Lovers Movement, Peoples Council for Social Justice, and the Samatha Law Society. The Union Agriculture Ministry had appointed a committee headed by Dubey to study the issue relating to the effect of endosulfan use.

According to the petitioners, the State Government in 2001 had banned the use of endosulfan in the State in toto. However, the ban on its use, except aerial spraying, had been withdrawn by an order in February 2002.

The petitioners contended that the pesticide was highly toxic and could harm the life of all species, including human life. Therefore, the order lifting the ban was violative of Article 21(right to life).

In its petition, the Nature Lovers Movement pointed out that a study by the National Institute for Occupation Health highlighted the high incidents of diseases in Kasaragod district where the pesticide was widely used.

The NIOH concluded that endosulfan could be the reason for the high prevalence of congenital malformation, neurological problems in the exposed groups, abnormalities of reproductive system and other diseases. The committee appointed by the Government found that the Plantation Corporation of Kerala (PCK) which owned cashew plantations in Kasaragod district had not been following the rules prescribed for aerial spraying.

Besides, there was no effective supervision of spraying and monitoring of the precautionary measures. The petitioners, therefore, prayed that the use of the pesticide be banned.

Counsel for the Pesticide Manufacturers and Formulators Association had argued that the ban on the use of endosulfan was unwarranted. No expert had opined that endosulfan was mainly responsible for various diseases in Kasaragod district.

The NIOH had conducted a study into the issue at the instance of the National Human Rights Commission. Its study did not say that the use of endosulfan was causing any health hazards.

A comprehensive study had to be carried out on the cause of the diseases seen in Kasaragod district. It was also pointed out that altogether 125 lakh litres of endosulfan were being used in the country, of which only 25,000 litres were used in Kerala alone. Therefore, any ban order could cause irreparable injury to the manufacturers of the pesticide, the association contended.