Table of Contents:-
- Background of the case
- Issues Raised
- Statutory Provision Involved
- Submissions of the Parties
- Judgment Analysis
- Conclusion
- Case Laws:
- Shoukath Ali Pullikuyil vs. the District Level Authorization Committee (2017(2) KLT 1062)
Radhakrishna Pillai & ors. vs The District Level Authorization Committee for Transplantation of Human Organ Ernakulam, Ernakulam Medical College Hospital, Kalamassery [WP (C). No. 7373/ 2021]
Background of the case
Petitioner No. 1 is a kidney patient and having treatment for his kidney issue from Medical Trust Hospital Ernakulam. The medical team of that hospital declared that both of his kidneys were spoiled and needs urgent transplantation. The kidneys of his close relatives were not suitable for transplantation. He is an orphan, his wife is a patient with diabetes and hypertension and his kids are of tender age, his three brothers are also suffering from diabetes. Apart from these relatives, he has no other relative who volunteers to donate a kidney to him. Petitioner no. 2 is a driver of petitioner no. 1 and shared a close bond with him. He is ready to donate his kidney.
All the certificates and affidavits regarding the consent were submitted b3efore the authorization committee to seek permission but the application has been rejected on the ground that petitioner no. 2, that is, the donor has his involvement in various criminal cases.
Aggrieved with the decision of the court the present writ petition has been filed under Article 226 before the Kerala High Court.
Issues Raised
- Whether a person having criminal antecedents becomes an organ donor?
- Whether the order of the authoritative committee is sustainable or not?
Statutory provisions Involved
- Rule 7 (3) of the Transplantation of Human Organs and Tissues Rules, 2014.
“When the proposed donor and the recipient are not near relatives, the Authorisation Committee shall, —
(i) evaluate that there is no commercial transaction between the recipient and the donor and that no payment has been made to the donor or promised to be made to the donor or any other person;
(ii) prepare an explanation of the link between them and the circumstances which led to the offer being made;
(iii) examine the reasons why the donor wishes to donate;
(iv) examine the documentary evidence of the link, e.g. proof that they have lived together, etc.;
(v) Examine old photographs showing the donor and the recipient together;
(vi) Evaluate that there is no middleman or tout involved;
(vii) evaluate the financial status of the donor and the recipient by asking them to give appropriate evidence of their vocation and income for the previous three financial years and any gross disparity between the status of the two must be evaluated in the backdrop of the objective of preventing commercial dealing;
(viii) Ensure that the donor is not a drug addict;
(ix) ensure that the near relative or if near relative is not available, any adult person related to donor by blood or marriage of the proposed unrelated donor is interviewed regarding awareness about his or her intention to donate an organ or tissue, the authenticity of the link between the donor and the recipient, and the reasons for donation, and any strong views or disagreement or objection of such kin shall also be recorded and taken note of.”
- Section 17 of the Transplantation of Human Organs and Tissues Act, 1994
“Any person aggrieved by an order of the Authorisation Committee rejecting an application for approval under sub-section (6) of section 9, or any hospital 2 [or Tissue Bank, as the case may be,] aggrieved by an order of the Appropriate Authority rejecting an application for registration under sub-section (2) of section 15 or an order of suspension or cancellation of registration under sub-section (2) of section 16, may, within thirty days from the date of the receipt of the order, prefer an appeal, in such manner as may be prescribed, against such order to—
- the Central Government where the appeal is against the order of the Authorisation Committee constituted under clause (a) of sub-section (4) of section 9 or against the order of the Appropriate Authority appointed under sub-section (1) of section 13; or
- (ii) the State Government, where the appeal is against the order of the Authorisation Committee constituted under clause (b) of sub-section (4) of section 9 or against the order of the Appropriate Authority appointed under sub-section (2) of section 13.”
- Section 9 (5) of the Transplantation of Human Organs and Tissues Act, 1994
“On an application jointly made, in such form and in such manner as may be prescribed, by the donor and the recipient, the Authorisation Committee shall, after holding an inquiry and after satisfying itself that the applicants have complied with all the requirements of this Act and tile rules made thereunder, grant to the applicants approval for the removal and transplantation of the human organ.”
- Section 9 (6) of the Transplantation of Human Organs and Tissues Act, 1994
“If, after the inquiry and after giving an opportunity to the applicants of being heard, the Authorisation Committee is satisfied that the applicants have not complied with the requirements of this Act and the rules made thereunder, it shall, for reasons to be recorded in writing, reject the application for approval.”
Submissions of the Parties
The contentions of the petitioners
- It was submitted that the order of the authorization committee is unsustainable.
- Further, it was contended that the findings of the committee that a person who is involved in a criminal offense cannot become a donor is unsustainable by the virtue of the Transplantation of Human Organs and Tissues Act, 1994 as well as The Transplantation of Human Organs and Tissues Rules, 2014.
- It was also submitted that as per Rule 7 (3) of the Transplantation of Human Organs and Tissues Rules, 2014 the authorization committee only needs to consider the situations specified under clause (i) to (ix).
- It was contended that there is no expressed or implied prohibition for a person who has a criminal background to become an organ donor.
- In the earlier rule of 1994 (which was substituted by the rules of 2014) there was a specific provision that provides that a donor shouldn’t have a criminal antecedent but it is no where in the rules of 2014. The only prohibition under the rules of 2014 is that the donor must not be a drug addict.
The contentions of the respondent
- The learned counsel for the government fairly pleaded that there is no provision in the act as well as in the rules which prohibits a person to become a donor who has a criminal background.
- Further, it is contended that the petitioner doesn’t have any alternative remedy available against the order of the authoritative committee rather they can go for the appeal under section 17 of the act.
Judgment Analysis
The court observed that the bare reading of the act of 1994 provides the regulation, storage, and transplantation of human organs and tissues for therapeutic purposes and the prevention of commercial dealings in human organs and tissues and the matters connected therewith or incidental thereto and therefore it depicts that the only intention of the legislature behind this provisions is to restrict and prohibit commercial dealings of the human organs and tissues and for that purpose court take section 9 (5) and 9 (6) of the Transplantation of Human Organs and Tissues Act, 1994.
Further, the court focuses on rule 7 (3) which specifies the duties of the authorization committee which specified that when the donor is not a near or dear one of the recipients then in such cases the committee shall be satisfied that there is no commercial transaction and no payment has been done for the transplantation. And in such cases, the committee shall prepare a proper explanation by specifying the link between the parties and circumstances in which such offer has been accepted.
Further, the court noticed that there is no specified provision either in the act of 1944 of the rules of 2014 which provides that a person who is involved in criminal activities cannot become a donor and stated that the findings of the court are illogical. The court further added that if the reasoning of the committee would be entertained then the person who is accused of petty or minor criminal offenses cannot donate their organs voluntarily.
The court also added that the authorization committee cannot go beyond its jurisdiction and rejects the application as there is no such thing as a criminal has a criminal kidney or criminal heart, etc.
Further, the court added that as per rules 23 (2) of the rules of 2014 the committee must use its discretionary powers judicially and pragmatically.
Further, the court rejected the contention of the government pleader that the petitioners must file an appeal under section 17 as they already approached this court with a grievance.
Further, the court relied upon the decision of the Shoukath Ali Pullikuyil vs. the District Level Authorization Committee (2017(2) KLT 1062) in which it was held that a police verification report is not required by the authorization committee to take their decision.
Conclusion
The court directed that the chief secretary of the state must issue the appropriate orders to direct all the authorities concerned to convene a meeting to consider the applications under the act and the rules within one week from the date of receiving the application and if there is a delay then the concerned committee needs to specify the reason for the delay.
The court set aside the order passed by the authorization committee and held that the respondent will reconsider the application within one week from the date of this judgment.
