Gujarat High Court
Case BriefsHigh Courts

   

Gujarat High Court: While deciding the instant bunch of petitions wherein the need to have a domicile certificate in order to be registered as a recipient on the State list for cadaveric transplant of an organ in Gujarat was challenged and prayer was made to declare Paragraph 13.1 and 13.10(C) of Gujarat Deceased Donor Organ and Tissue Transplantation (G-DOT) Guidelines as arbitrary, illegal and in violation of fundamental rights of the petitioners as well as citizens of India; the Bench of Biren Vaishnav J., held the impugned Paragraphs of the Guidelines to be unconstitutional, unreasonable and in violation of fundamental rights under Arts. 14 and 21 of the Constitution. The Court held that the need to have a domicile certificate in order to be registered as a recipient on the State list for cadaveric transplant of an organ is illegal and unconstitutional and directed the State of Gujarat to register the petitioners and such other recipients for cadaveric transplant of organs without the conditions of submitting a domicile certificate.

Facts of the Case: One petitioner is a Canadian citizen and an Overseas Citizen of India. Having diagnosed with limited functioning kidney, she was advised to undergo organ transplant. To undergo such transplant, the petitioner has to be registered as a recipient under the Transplantation of Human Organs and Tissues Act, 1994 and the Regulations thereunder. However, her request for registration was denied on the ground that she would require a domicile certificate. A request made for such certificate has been rejected by the impugned communication by the police authorities on the ground that the petitioner is a Canadian citizen and not an Indian citizen.

Similar plight was highlighted by other petitioners-

One resident of Madhya Pradesh and Gujarati by descent whose registration under the 1994 Act was rejected as she was registered in the non-domicile list citing paragraphs 13.1 and 13.10(C)(2) of the G-DOT Guidelines. The resolution dated 14-03-2019 provides that priority will be given to domicile residents and only after that list is exhausted, the organ will be offered to non-domicile list.

Another petitioner, a permanent resident of Gujarat since 2015, whose application for domicile certificate was rejected by the competent authorities on the ground that that since the petitioner belongs to the State of Jharkhand and is in Ahmedabad since 2015, having not completed 10 years, is not entitled to a domicile certificate.

Contentions: The counsels for the petitioners contended that Transplantation of Human Organs and Tissues Act, 1994 and the Rules thereunder do not specify any requirement of a domicile certificate. It was submitted that Art. 21 of the Constitution which deals with ‘Right to Life’, guarantees and includes the right to live with human dignity and receive medical care. It was submitted that State has a constitutional obligation to guarantee right to health which is an integral part of the ‘Right to Life’.

The petitioners challenged the clauses of the G-DOT Guidelines and submitted that they are beyond the rule making powers conferred under the 1994 Act. Relying on State of Telangana v. B. Subbarayudu, 2022 SCC OnLine SC 1220, by which the Supreme Court has held that every part of every state is an integral part of India. The Rules and Regulations have to be in consonance with the fundamental rights guaranteed under Part-III.

It was argued that the State’s insistence on domicile certificate would lead to making of two lists- one non-domicile and the other domicile and it is not the case where the petitioner wants any priority, thus the stand of the State strikes at the very root of Art. 21.

Per contra, the counsels for State Organ and Tissue Transplant Organization and the Advisory Committee submitted that Act of 1994 had been enacted as there was a large-scale propensity of commercialization of human organs. It was further submitted that human organ between a donor and a foreign national is not permitted and therefore, one of the petitioners cannot be permitted to undertake the process as the only possible way that she can apply is through cadaveric donation and the restrictions in place are just and proper.

The rationale behind the requirement of a domicile certificate was explained by submitting that in India as also in the State of Gujarat, there is a huge gap between recipients of organs and organ donors. The patients in need of organs outnumber the cadaver donors. It is therefore that the Guidelines prescribed various criteria like donor for types of hospitals and the sole purpose behind the criteria is to ensure that domiciles of State have access to medical health and infrastructure. It was submitted that the marginal and poor people of the State of Gujarat who do not have the capacity to travel outside Gujarat for transplantation would benefit by clause 13.1 and 13.10 and therefore the same should not be set aside.

Analysis and Findings by the Court: The Court upon perusing the facts, contentions and relevant provisions, did a detailed analysis of the grounds upon which the impugned Guidelines was challenged-

Vis-à-vis the Guidelines being violative of Art. 21, it was noted that in essence, the petitioners are suffering from a handicap due to a malfunction of an organ viz. kidney and liver in the respective cases, need a transplant, for which, the recipient petitioners will have to have a corresponding donor. It was pointed out that the 1994 Act regulates the transplantation of human organs and tissues by placing certain obligations and duties on the actors involved in the process.

It was observed that when a donor wants to donate after death, he/she can authorize the removal of organs after death. Living donors who want to donate before death can do so by a donation to a near relative and/or to a near relative who is a foreign national. This has to be done after prior approval of the Authorisation Committee. It was further noted that Gujarat Deceased Donor Organ and Tissue Transplantation Guidelines are in connection to cadaver transplantations.

The Court stated that argument to support the requisite of domicile certificate to correlate a complete embargo on organ donation to a foreign national by an India donor is of no help as even otherwise the guidelines of a prerequisite possession of domicile certificate is not related to the concept of a living donor.

Regarding denial of registration under the 1994 Act to an Overseas Citizen of India, the Court observed that Section 7-B(2) of Citizenship Act, 1955 provides or enlists such rights which an Overseas Citizen of India cardholder shall not be entitled to vis-a-vis the rights conferred on an Indian Citizen. However, such rights cannot be read to restrict the availability of rights to a ‘person’ under Arts. 14 and 21 of the Constitution. It is therefore misconceived for the State authorities to contend that only such rights other than specified under Section 7B (2) will be available only if so notified. This cannot be sustained when it comes to “Right to Life” under Art. 21.

Under the statutory scheme vis-à-vis organ donations, the Court observed the sequence of allocation of organs will be in the order -> state list -> regional list -> national list -> Person of Indian Origin -> Foreigner. Therefore, even when it comes to allocation, the Person of Indian Origin and Foreigner fall back in queue.

The Court found that the idea to bring in the concept of a domicile certificate by way of a guideline by the State, under the pretext of protecting the needs of the needy fails the test on two counts– Firstly an executive instruction cannot supplant a Rule and Secondly such an instruction has no reasonable nexus with the object sought to be achieved. “The whole object of making of the Act and the Rules is to stem the propensity of commercialization of organ transplantation and by bringing in a requisite of being a domicile of a State cannot in any manner foster the purposes of the Act and therefore, on the touchstone of this test such a requirement, as set out in Paragraph 13(1) and 13(C)(2) of the G-DOT Guidelines by the State violate the constitutional guarantee enshrined to any person under Article 14 of the Constitution”.

State Guidelines, which is in the nature of executive instructions cannot be made to operate in absence of any such sanction under the Act and the Rules and also, when such a guideline of having a domicile certificate of the State has no nexus to the object sought to be achieved i.e. to prevent commercialization of organ trade and misuse of the machinery under the set for such purposes.

The Court observed that Art. 21 is at the heart of the Constitution, a Fundamental Right, available to all persons. Referring to the landmark cases dealing with importance of Art 21 and its availability to all persons, the Court stated that, while interpreting Article 21 the Supreme Court has held that the ‘Right to Health’ is an integral part of the ‘Right to Life’ and the State has a constitutional obligation to provide health facilities. Denial of medical treatment to the petitioners who are not domiciles of Gujarat is illegal and unconstitutional. By way of Paragraph 13(1) and 13(10)(C), the State has tried to introduce a new criterion of requirement of a domicile certificate for registration of a patient for enrolling them on the State List for organ transplant. The introduction of such criteria by a guideline, in the nature of executive instructions is in colourable exercise of powers.

[Vidya Ramesh Chand Shah v. State of Gujarat, 2022 SCC OnLine Guj 2021, decided on 21-11-2022]


Advocates who appeared in this case :

GM JOSHI, SR COUNSEL assisted by MR IG JOSHI, MR VYOM SHAH, ADVOCATES (8726) for the Petitioner(s) No. 1 in SCA Nos.14029/2022 and 18056/2022;

KUNAN B. NAIK, ADVOCATE for the Petitioner(s) No. 1 in SCA Nos.8602/2022;

MR G H VIRK (7392) for the Respondent(s) No. 4 for the Respondent(s) No. 4 in SCA No.14029/2022;

MANISHA LAVKUMAR, SENIOR ADVOCATE assisted by S.S. PATHAK, ADVOCATE for the Respondent(s) No. 2 & 3 in all the Petitions;

ROHAN N. SHAH, AGP for the Respondent(s) No. 1 – STATE in all the Petitions;

VAIBHAV VYAS, ADVOCATE for the Respondent(s) No. 4 in SCA No.18056/2022;

RAJESH K KANANI, ADVOCATE for the Respondent(s) No. 4 in SCA No.8602/2022.


*Sucheta Sarkar, Editorial Assistant has prepared this brief.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: While addressing a matter wherein an Indian Citizen intended to soleminse and register his marriage with a British Citizen, an OCI card holder, N. Nagaresh, J., held that f a foreign Embassy does not issue a Single Status Certificate or NOC due to the law, rules and regulations prevailing in that country, Declarations or Certificates evidencing the same should be accepted in India for registration of marriage.

Petitioner was an unmarried Indian Citizen working and had approached seeking the quashing of a Circular and to direct respondent 1 — Marriage Officer to accept documents submitted by the petitioner and his bride.

Petitioner’s bride was a British Citizen holding an Overseas Citizen of India card (OCI). Petitioner and his bride decided to solemnize their marriage under the provisions of the Special Marriage Act, 1954.

NOC and Bachelorhood Certificate

Respondent 1 – Marriage Officer informed that for solmenisation and registration of the marriage, petitioner had to produce a No Objection Certificate (NOC) and Bachelorhood Certificates issued by the Embassy of the Foreign Nation concerned.

Bride of the petitioner on returning to Britain was informed that, British Government no longer issue a Certificate of Impediment or No Objection Certificate to British Citizens to get married in Commonwealth Countries for the reason that the marriage in the UK is governed by separate and different legislations in England and Wales, Scotland and Northern Ireland.

Hence, she executed a Single Status statutory declaration before a Solicitor, and it was Apostilled.

Petitioner sought to direct respondent 1 to accept the said documents and take appropriate steps for the solemnization and registration of their marriage.

Analysis and Decision

High Court held that if a foreign Embassy does not issue a Single Status Certificate or NOC due to the law, rules and regulations prevailing in that country, Declarations or Certificates evidencing the same should be accepted in India for registration of marriage.

Stating the above, Court remarked that, “no one can be compelled to achieve an impossible task.”

 Since the petitioner had produced the Single Status Statutory Declaration apostilled, the refusal to solemnize and register the marriage by the intending parties, would result in grave injustice.

Therefore, in view of the above Bench disposed of the petition directing respondent 1 to accept the documents submitted by the petitioner and his bride.[Joel K. Yoyakkim v. Sub Registrar (Marriage Officer), WP (C) No. 3055 of 2022, decided on 3-1-2022]


Advocates before the Court:

For the Petitioner: Advocate U. Jayakrishnan

For the Respondents: Appu P S, GP

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Amita Pandove (Information Commissioner) held that,

“…information which is available in record or accessible by a public authority can only be provided under the RTI Act.” 

“Appellant is not just pressurizing the Respondent public authority by seeking clarification/confirmation, but also harassing them by filing multiple queries followed by reminders, e-mail communications etc.” 

“…under the provisions of the RTI Act, disclosure of information is a rule and non-disclosure is an exception.”

Information was sought by the appellant through an RTI Application. On being dissatisfied, the appellant had filed the first appeal in October, 2018 which had not been adjudicated by the First Appellate Authority.

Appellant filed a second appeal under Section 19 of the RTI Act and sought information.

On query by the commission, appellant informed the Commission that two written submissions had been filed on his behalf, to which the Commission cautioned the appellant to desist from such practice as the same was not in accordance with the letter and spirit of the RTI Act.

Respondent submitted that the information sought by the appellant was voluminous and the same was scattered in many files. He added that providing photocopies of all the information required collection/collation of data, which attracted Section 7(9) of the RTI Act.

Appellant interjected to state that how the Commission can adjudicate the aspect of voluminous information. Upon query by the Commission as to on what authority he is making this statement, he failed to provide a substantiating reply. The Commission yet again cautioned the Appellant for vitiating the proceedings of the instant hearing.

Commission’s Decision

Coram noted that the appellant adopted a convoluted method to express the facts of the instant case.

Commission expressed that it is of the view that,

 As much as the CPIO has a statutory responsibility to comply with the provisions of the RTI Act, applicants filing a request under RTI Act should also keep in mind that they should not transgress the letter and spirt of the RTI Act by flooding RTI Applications, which are cumbersome, protracted and circumlocutory in nature.

 Commission admonished the appellant for going beyond the stipulated word limit, which troubled the respondent to ascertain what information had been sought and pertained to which Department.

Therefore, in Coram’s opinion the appellant instead of seeking information in a reasonable and comprehensible way resorted to adopting a tortuous method containing quite a lot of issues/queries in a disorganized manner, resulting in unfathomable hurdles on the part of the respondent.

Word of Caution by the Commission

“…Appellant being a responsible citizen who poses to be concerned about the functionality of the Respondent public authority must impliedly know his limitations while filing an RTI query before any Respondent public authority.  

 Commission strictly cautions him that in future, he shall holistically adhere to the relevant provisions of the RTI Rules, 2012 while filing any RTI Application before any public authority.”

Bench stated that the Appellant’s contention was rather preposterous because mere statements such as ‘involving larger public interest’ and ‘national interest’ do not suffice and the onus to prove the same lies with the Appellant.

Commission was put into doubt about the intention of the appellant whether he genuinely wants information or just wants to harass the Respondent public authority.

Majority of queries sought by the appellant were in respect to the PIO’s confirmation regarding certain aspects such as dates pertaining to commencing and concluding of certain constructions at Naval/Coast Guard berths, names of the vendors who were awarded contracts for the aforesaid construction, date of execution of the lease agreement etc. from the Respondent.

Information: Can the appellant seek any information under the sky?

Commission pointed out that though it is not mandatory to provide reasons for seeking information under the RTI Act, but the same does not mean that an applicant can seek all/any information under the sky.

 Further, it was observed that appellant relatively misinterpreted the term “information”.

Photography: Is it allowed under the RTI Act?

In the present matter, appellant has argued that photography is allowed under the RTI Act under Section 2(j)(iv) of the RTI Act.

Bench while considering the importance of the services rendered by the respondent public authority to the country as well as considering the information sought by the Appellant in the instant RTI Application, held that photography of the averred documents/records/information cannot be allowed because the question of photography arises only if the condition of the document/record is in a dilapidated state and cannot be photocopied anymore by repeated handling.

Commission elaborated that the appellant in a cyclostyled manner framed the queries of the instant RTI Application, wherein he had specifically asked the PIO to ‘CONFIRM’ the commencing and concluding date of certain constructions, ‘CONFIRM’ whether the Respondent has a copy of the NGT’s Order pronounced on 02.09.2016 concerning to the dredging and other expansions of MPT etc., which is beyond the purview of Section 2(f) of the RTI Act.

Commission opined that the appellant was only on a mission to seek vengeance or has some personal vendetta against the respondent public authority.

Appellant understood that the provisions of the RTI Act can be twisted according to his whims and fancies as well as to his requirements.

 It was added to the observations during the hearing, the Appellant rather made an attempt to mystify both the Commission as well as the Respondent by taking refuge on unconnected events or mentioning certain things without any proof.

The modus operandi adopted by the Appellant is nothing but a classic example of systematic persecution as well as wasting precious time of the public authority as well as the Commission at the cost of the public exchequer.

Commission finds that the Respondent has provided an opportunity to the Appellant to inspect the relevant records, which the Appellant is contesting till date, which is rather bizarre to note.

Commission further counselled the appellant that as per Section 6(1) of the RTI Act, Parliament made amply clear that while enacting the RTI Act it had categorically provided a right to an Indian citizen that he/she shall make a request and not requests.

Adding more to its remarks, Coram noted that Appellant rather appeared to have converted the provisions of the RTI Act as a tool of oppression/intimidation, which the Commission discourages outrightly.

Enough opportunity had been provided to the appellant to inspect the relevant records which he did not avail till date, hence no illegality was found on the part of the respondent for seeking proof of citizenship because considering the importance and sensitivity of the information sought in the instant RTI Application as well as the alleged antecedents of the appellant, the respondent public authority has on a selective basis and as a matter of abundant caution sought proof of citizenship from the Appellant.

Public authority has the liberty to seek proof of citizenship from an applicant, when he/she is seeking information, at times may be sensitive from security perspective and this concern can never be disregarded.

 Keeping in view the totality of circumstances discussed above, the Commission found no infirmity in the information provided by the Respondent.

Therefore, the appeal was dismissed in view of the above terms. [Samir Sardana v. CPIO, Mormugao Port Trust; 2021 SCC OnLine CIC 4310; decided on 10-05-2021]