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CASE NO.: Appeal (civil)  156 of 2005

PETITIONER: Kuldeep Singh & another

RESPONDENT: State of Tamil Nadu & Ors.

DATE OF JUDGMENT: 31/03/2005

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T

(Arising out of D.No. 6606/2005)

ARIJIT PASAYAT, J.

       In this petition under Article 32 of the Constitution of India,  1950 (in short the ’Constitution’) some questions of seminal importance  have been raised.  Factual position as indicated by the petitioners  needs to be noted in a nutshell as the issues are pristinely legal.

       Petitioner No.1 is undergoing treatment at Devaki Hospital Ltd.  at Chennai for renal disorder. The hospital in question is duly  approved by the authorities under the Transplantation of Human Organs  Act, 1994 (in short the ’Act’) read with Transplantation of Human  Organs Rules, 1995 (in short the ’Rules’) and is permitted to undertake  Kidney transplantation. Doctors treating petitioner No.1 were of the  view that both the kidneys of petitioner No.1 have failed to function.  Petitioner No.2 wanted to donate one kidney to petitioner No.1 to save  his life. The gesture was actuated by love and affection and there is  no other consideration involved.    

       An application was made under the Act before respondent No.2- the  Director of Medical Education, Govt. of Tamil Nadu, Chennai  for  issuance of ’No Objection Certificate’ (in short the ’NOC’). The  respondent No.2 by letter dated 10.3.2005 indicated to the petitioners  that the NOC is to be issued by the Authorisation Committee of the   Punjab State (respondent No.3) as the Authorization Committee of the  State of Tamil Nadu cannot issue such a certificate.  It was indicated  that since both the petitioners belong to the State of Punjab, only the  Authorisation Committee of the said State had competence to issue the  NOC. When request was made to respondent No.3 through respondent No.4  i.e. the Director, Research and Medical Education, Punjab, it was  indicated to the petitioners by said respondents that it is only the  Authorisation Committee of the State of Tamil Nadu which can issue the  certificate, as the transplantation was intended to be done in the said  State.  

       The petitioners have made a grievance that because of the  ticklish issue as to which State has the competence to issue the NOC,  the life of petitioner No.1 is in peril.           We had issued notice to both the State Governments who are  represented by their learned counsel. The State of Tamil Nadu re- iterated its stand that only the Authorisation Committee of the State  of Punjab was competent to issue the NOC as both petitioners belong to

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that State. The contrary stand is taken by the State of Punjab on the  ground that since the transplantation is to be done in the State of  Tamil Nadu, only the Authorisation Committee of the said State was  competent to issue the NOC.  

       In order to appreciate the rival submissions, purpose for  enactment of the Act and a few provisions of the Act need to be noted.

       The Act was promulgated to provide for the regulation of removal,  storage and transplantation of human organs for therapeutic purposes  and for the prevention of commercial dealings in human organs and for  matters connected therewith or incidental thereto.  

       The Act has come into force w.e.f. 4.2.1995 in certain States and  in all Union Territories. It is provided in Section 1 of the Act that  it shall apply to such other States which adopt the Act by resolution  passed in that behalf under clause (1) of Article 252 of the  Constitution. It is further submitted at the Bar that executive  instructions and/or government orders in line with the object of the  Act have been issued in such States. We need not go into that question  in the present dispute as both the States of Tamil Nadu and Punjab are  covered by the provisions of the Act and the Rules.  

       Section 9 deals with "Restriction on removal and transplantation  or human organs". The same reads as follows:

       "Restrictions on removal and transplantation of human  organs \026  

       (1) Save as otherwise provided in sub-section (3), no  human organ removed from the body of a donor before his  death shall be transplanted into a recipient unless the  donor is a near relative of the recipient.

       (2) Where any donor authorizes the removal of any of  his human organs after his death under sub-section (2)  or Section 3 or any person competent or empowered to  give authority for the removal of any human organ from  the body of any deceased person authorizes such removal,  the human organ may be removed and transplanted into the  body of any recipient who may be in need of such human  organ.

       (3)  If any donor authorizes the removal of any of  his human organs before his death under sub-section (1)  of Section 3 for transplantation into the body of such  recipient not being a near relative as is specified by  the donor by reason of affection or attachment towards  the recipient or for any other special reasons, such  human organ shall not be removed and transplanted  without the prior approval of the Authorisation  Committee.

       (4)(a) The Central Government shall constitute, by  notification, one or more Authorisation Committees  consisting of such members as may by nominated by the  Central Government on such terms and conditions as may  be specified in the notification for each of the Union  territories for the purposes of this section.

       (b) The State Government shall constitute, by  notification, one or more Authorisation Committees  consisting of such members as may be nominated by the  State Government on such terms and conditions as may be  specified in the notification for the purposes of this

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section.

       (5) 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 the rules made thereunder, grant to the  applicants approval for the removal and transplantation  of the human organ.

       (6) 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."

       The provision refers to donors who are not "near relatives" of  the recipient. The expression ’near relatives’ is defined in Section  2(i) to mean ’spouse, son, daughter, father, mother, brother or  sister’. Chapter II deals with "Authority for the removal of human  organs". Sub-section (2) of Section 3 deals with removal of the organs  after death for therapeutic purposes. Sub-section (1) however deals  with authorization by any donor for removal of any human organ before  his death for therapeutic purposes. Sub-section (4) of Section 9 deals  with constitution of Authorisation Committee consisting of such members  as may be notified by the Central Government or the State Government,  as the case may be. Under Sub-Section (5) of Section 9 application is  required to be jointly made by the donor and the recipient in the  prescribed manner. The Authorisation Committee is required to hold an  enquiry and if after such an enquiry it is certified that the  applicants have complied with the requirements of the Act and the  Rules, it can grant the applicants approval for the removal and  transplantation of the concerned human organs. If on the contrary,  after enquiry and after giving an opportunity to the applicants of  being heard, the Authorisation Committee is of the view that the  applicants have not complied with the requirements of the Act and the  Rules, the application for approval may be rejected for reasons to be  recorded in writing. Section 11 prohibits removal or transplantation of  human organs for any purpose other than therapeutic purposes. Chapter  VI deals with "Offences and Penalties".  Section 18 provides for  removal of human organ without authority. Section 19 provides for  punishment for commercial dealings in human organs. The shocking  exploitation of abject poverty of many donors for even small sums of  money, appears to have provided the foundation for enacting the Act.  The Authorisation Committee has to be satisfied that the authorization  for removal is not for commercial consideration. Since some amount of  urgency has to be exhibited because of the need for transplantation,  expeditious disposal of the application would be appropriate. But the  matter should not be dealt with in a casual manner as otherwise the  intent and purpose of the Act shall be frustrated.    

       Rule 3 deals with "Authority for Removal of Human Organ". The  conditions for removal before death are incorporated in the Form I. The  same reads as follows:                          "Authority for Removal of Human Organ \026 Any  donor may authorize the removal, before his death, of  any human organ of his body for therapeutic purposes in  the manner and on such conditions as specified in Form  1."

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Form I reads as follows:

"I, ____________ aged ____________ S/o, D/o, W/o,  Mr._________________ resident of ________________  hereby authorize to remove for therapeutic  purposes/consent to donate my organ, namely, ________  to:

(i)     Mr./Mrs.___________s/o, d/o, w/o Mr._________  aged _____ resident of ______ who happens to be my  near relative as defined in clause (i) of Section 2  of the  Act.

                               OR  

(ii)    Mr./Mrs. _________ s/o, d/o, w/o Mr. _________  aged ______ resident of _______ towards whom I  possess special affection or attachment, or for any  special reason (to be specified)

       I certify that the above authority/consent has  been given by me out of my own free will without any  undue pressure, inducement, influence or allurement  and that the purposes of the above authority/donation  and of all possible complications, side-effects,  consequences and options have been explained to me  before giving this authority or consent or both.  

                               Signature of the Donor"     

                        Where the donor is not "near relative" as defined under the Act,  the situation is covered by Sub-Section (3) of Section 9. As the Form I  in terms of Rule 3 itself shows the same has to be filed in both the  cases where the donor is a near relative and where he is not, so far as  the recipient is concerned.  In case the donor is not a near relative  the requirement is that he must establish that removal of the organ was  being authorized for transplantation into the body of the recipient  because of affection or attachment or for any special reasons to make  donation of his organ. As the purpose of enactment of the Statute  itself shows, there cannot be any commercial element involved in the  donation. The object of the Statute is crystal clear that it intends to  prevent commercial dealings in human organs. The Authorisation  Committee is, therefore, required to satisfy that the real purpose of  the donor authorizing removal of the organ is by reason of affection or  attachment towards the recipient or for any other special reason. Such  special reasons can by no stretch of imagination encompass commercial  elements. Above being the intent, the inevitable conclusion is that the  Authorisation Committees of the State to which the donor and the donee  belong have to take the exercise to find out whether approval is to be  accorded.  Such Committee shall be in a better position to ascertain  the true intent and the purpose for the authorisation to remove the  organ and whether any commercial element is involved or not.  They  would be in a better position to lift the veil of projected affection  or attachment and the so called special reasons and focus on the true  intent. The burden is on the applicants to establish the real intent by  placing relevant materials for consideration of the Authorisation  Committee. Whether there exists any affection or attachment or special  reason is within the special knowledge of the applicants, and a heavy  burden lies on them to establish it. Several relevant factors like  relationship if any (need not be near relationship for which different  considerations have been provided for), period of acquaintance, degree  of association, reciprocity of feelings, gratitude and similar human

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factors and bonds can throw light on the issue.  It is always open to  the Authorisation Committee considering the application to seek  information/materials from Authorisation Committees of other  States/State Governments as the case may be for effective decision in  the matter. In case any State is not covered by the operation of the  Act or the Rules, the operative executive instructions/Government  orders will hold the field.  As the object is to find out the true  intent behind the donor’s willingness to donate the organ, it would not  be in line with the legislative intent to require the Authorisation  Committee of the State where the recipient is undergoing medical  treatment to decide the issue whether approval is to be accorded. Form  I in terms requires the applicants to indicate the residential details.  This indication is required to prima facie determine as to which is the  appropriate Authorisation Committee.  In the instant case, therefore,  it was the Authorisation Committee of the State of Punjab which is  required to examine the claim of the petitioners.  

       We may note here that there is a provision for appeal in terms of  Section 17 of the Act in case of refusal by the Authorisation  Committee. But taking into account the urgency involved and the grey  area projected by the two States regarding the proper Authorisation  Committee, we have entertained the Writ Petition and decided the issues  involved. In the normal course, it would be for the Appellate Authority  constituted in terms of Section 17 who has to consider the appeal to be  preferred by the aggrieved party.

       Since the object of the Statute is to rule out commercial  dealings, it would be desirable to require the donor and recipient to  give details of their financial positions and vocations. It would be  appropriate for the Legislature to accordingly amend the Rules and the  Form I, so that requirement for disclosing incomes and vocations for  some previous financial years (say 3 years) gets statutorily  incorporated. This would help the Authorisation Committees to assess  whether any commercial dealing is involved or not. Until Legislative  steps are taken, all Authorisation Committees shall, in terms of this  judgment require the applicants to furnish their income particulars for  the previous three financial years and the vocations. The petitioners  are directed to furnish the aforesaid details within ten days from to- day before the Authorisation Committee.  

       We find that in certain States administrative officials are  nominated as members of the Authorisation Committee. That appears to be  the proper course  as the Authorisation Committee has to decide both on  the medical angle regarding need for transplantation, and the existence  or otherwise of the essential ingredients to be established under Sub- Section (3) of Section 9 of the Act. Presence of an administrative  official in the Authorisation Committee would be helpful in deciding  the issues more effectively.  

       Though we are told that the present Authorisation Committee of  the State of Punjab consists of only doctors, in view of urgency we  direct the existing Committee to examine the matter without awaiting  the induction of an administrative official. We request the Committee  to examine the application of the petitioners on the basis of materials  to be placed by the petitioners and to decide whether the applicants  have established the requirements necessary for according approval. If  it accords approval, the same may be transmitted to the State of Tamil  Nadu immediately so that the Authorisation Committee of the said State  can also consider on the therapeutic angles. In case approval is not  accorded, it shall be open to the applicants to avail such remedies as  are available in law. We make it clear that we have not expressed any  opinion on the issue as to whether approval is to be accorded or not as  the same is to be considered by the Authorisation Committee.  

       Before parting with the case, we may indicate that with a view to

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effectuate the laudable object of the Act, it would be appropriate for  States which have not yet adopted the Act, to do so immediately.  

       Copies of our order be sent to the Ministry of Health and Law,  Union of India and Chief Secretaries of all States and Union  Territories for doing the needful as indicated in our judgment.  

       The writ petition is disposed of accordingly.  No costs.