Kerala High Court: P.V.Kunhikrishnan, J., criticized the decision of the District Level Authorization Committee for transplantation of Human Organs, wherein application of a person who came forward to donate his kidney to a needy patient was rejected because of his criminal antecedents. The Bench expressed,
“If this stand of the respondent is allowed, I apprehend that, the respondent will reject such applications for permission to donate organs even on the ground that, the donor is a murderer, thief, rapist, or involved in minor criminal offences.”
Observing that there were no provision provisions in Transplantation of Human Organs and Tissues Act, 1994 (‘Act 1994) and The Transplantation of Human Organs and Tissues Rules, 2014 (Rules 2014) to support the stand of the respondent, the Bench expressed its disgust stating,
“I hope, they will not reject the applications because the donor is a Hindu, Christian, Muslim, Sikh, or person in a lower caste after comparing with the religion and caste of the recipient.”
Petitioner 2, driver of petitioner 1 had sought approval for kidney donation as both the kidneys of petitioner 1 had spoiled and it needed urgent transplantation. However, the authorisation committee concerned rejected permission with the reasoning that, “the donor is involved in multiple criminal offences”. Noticeably, in earlier Rule 1994 there was a specific provision that says that a donor should not have any criminal antecedents. However, the said Rule was substituted by Rule 2014 and there was no such stipulation in the new Rule. The only embargo in Rule 2014 was that the donor should not be a drug addict.
In Shoukath Ali Pullikuyil v. the District Level Authorization Committee (2017(2) KLT 1062), the Court had observed that even a police verification report is not mandatory for taking a decision by the Authorisation Committee. The Court had held that,
“Police can only be or rather police should only be involved, if the Authorisation Committee doubts the genuineness of the claims or bona fides of the persons or genuineness and bona fides of the documents produced and not otherwise. Verification through police as a routine manner in all cases should generally be avoided. That would save time and harassment to already harassed people. The prime consideration being that, there is no commercialisation in matters of organ donation. The organization committee can surely discover those by various certificates and documents that it requires to be filed before decisions are taken. This should not be allowed to continue in the future.”
Observing that the only intention of the Legislature was to prevent commercial dealings in human organs and tissues, the Bench opined that there was no logic to the finding of the committee for rejecting the application. If the reasoning of the authority is accepted, the only conclusion that is possible about such reasoning of the Authorisation Committee is that the committee believes that the criminal behaviour of the donor will percolate to the person who accepts the organs! What sort of reasoning is this? No person with common sense can agree with the same. Calling the reasons for refusal flimsy, the Bench stated that the Authorisation Committee could not go beyond their jurisdiction and reject the application as
“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 no criminal antecedents.”
Hence, the Bench held that if there was no evidence to show that there was no commercial dealing, pragmatism should overtake technicalities, because a man was on death bed. The State government was directed to issue appropriate orders directing all the authorities concerned to convene meetings to consider the applications submitted as per Act 1994 and Rule 2014, as expeditiously as possible, at any rate, within one week from the date of receipt of such applications and mention the reason in cases of delay in convening the meeting within one week.
In the light of the above, the rejection order was set aside and the matter was remanded to the authority for reconsideration. [Radhakrishna Pillai v. District Level Authorization Committee for Transplantation of Human Organs, WP(C) No. 16216 of 2021, decided on 27-08-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
For the Petitioners: Advocate C.M.Mohammed Iquabal
For the Respondent: Sr. G. P. Deepa Narayanan