In the present case, the petitioner was undergoing treatment and needed a donor to transplant his kidney. A close friend of his was ready to donate. Therefore, they applied to the Authorization Committee for granting the permission. However, the concerned authority had rejected to grant permission on the ground the donor was involved in multiple criminal offences under the Act substituted by the 2014 Rules.
WP (C) No. 16216/2021
DATE OF JUDGEMENT:
27th August 2021
Justice P.V Kunhikrishnan
Petitioner- Radhakrishna Pillai
Respondent- District Level Authorization Committee for Transplantation of Human Organs, Ernakulam
- The Kerala High Court reiterated that criminal antecedents of an organ donor are not criteria to be considered by the Authorization Committee for transplantation of human organs.
- The petitioner here in the present case was a kidney patient and he was undergoing treatment for his kidney problem at the Medical Trust Hospital, Ernakulam. Both the kidneys of the petitioner were spoiled and needed urgent transplantation. The petitioner had no other close relatives to donate a kidney. The driver of the petitioner was in a close relationship with the first petitioner. He was ready to donate his kidney to the petitioner.
- The petitioners submitted an application to the Authorization Committee for getting permission.
- The concerned authorities, after considering such an application, had not passed any order. Then, a contempt case was filed for non-compliance with the directions. Thereafter, the Authorization Committee (here as “respondent”) had rejected the grant for permission on the ground that the donor was involved in multiple criminal offences under the Act substituted by the 2014 Rules.
- Aggrieved by the Authorization Committee’s order, the writ petition was filed before the court.
Transplantation of Human Organs and Tissues Act, 1994 substituted by the Rules 2014:
- Section 9(6) of the Act says that the permission can be rejected only if the requirements of the Acts and the Rules made thereunder are not complied with.
- Whether the Act or Rules bar a person with criminal antecedents from donating an organ?
- The contention raised before the court by the petitioner that a person who is involved in multiple criminal offences cannot be a donor is unsustainable. He admitted that although the earlier rule which was in force from 1994 mandated that the donor should not have any criminal antecedents, the same was substituted by the 2014 Rules. Therefore, such stipulation is not there in the new law.
- The Government Pleader agreed with the petitioner's contention and had submitted that there is an alternative remedy to the petitioners against the order passed by the authorities and they can file an appeal under Section 17 of the Act.
- The court decided after hearing the contentions raised by the petitioners and the Government Pleader that the provisions in the Act clearly state that it is to prevent commercial dealings in human organs and tissues.
- The court found no provision to support the stand of the Authorization Committee either in the Act or in the 2014 Rules, which say that the organ of a person, who is involved in criminal offences, cannot be accepted by the authority.
- The Court held that the Authorisation Committee cannot go beyond their jurisdiction and reject the application and suggested that there is no organ in the human body like a criminal kidney or criminal liver or criminal heart. There is no difference between the organ of a person without a criminal antecedent and the organ of a person who has criminal antecedents. Human blood is passing through all of us.
- Additionally, the main duty of the Committee is to see that there are no commercial dealings in human organs. The Committee shall use its discretion judiciously and pragmatically while taking decisions.
- Further, the court had rejected the contention of the Government Pleader that the petitioner should approach the appellate authority by filing an appeal against the panel's decision at this time.
The court passed an order to set aside the Authorization Committee’s order. The respondent should reconsider the applications of the petitioners within one week from the date of receipt of a copy of the judgment. Further, the Registry would forward a copy of the judgment to the Chief Secretary, State of Kerala. The Chief Secretary will issue necessary orders in this regard and produce a copy of the same before the Registrar General of the Court within one month from the date of receipt of a copy of the judgment.
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