A Single Judge Bench of the Kerala High Court comprising Justice P V Kunhikrishnan, has held in the case of Radhakrishna Pillai v. District Level Authorization Committee for Transplantation of Human Organs, Ernakulam that the criminal antecedents of a person cannot be criteria for hampering organ donation and the Transplantation of Human Organs and Tissues Act, 1994 do not make any such distinction against persons with criminal record.
"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 ma criminal antecedent and the organ of a person who has no criminal antecedents. Human blood is passing through all of us.”
Factual Background
The 1st petitioner is a kidney patient. He is undergoing treatment for his kidney problem, and he needs urgent transplantation. It is the case of the 1st petitioner that, the kidneys of the close relatives of the first petitioner are not suitable for transplantation. His parents are no more. His wife is suffering from diabetes and hypertension. His two children are in their tender age. His three brothers are also diabetic patients. Apart from the above, the 1st petitioner has no other close relatives to donate a kidney. The 2nd petitioner was the driver of the 1st petitioner and according to him, he is in close relationship with the first petitioner. He is ready to donate his kidney to the 1st petitioner.
The Petitioner made relevant applications before authorities concerned, howver, the same was rejected with the reasoning that, “the donor is involved in multiple criminal offences”. Hence this Writ Petition was filed.
Reasoning and Decision of the Court
The Court noted at the outset that,
"A reading of the provisions in Act 1994, it is clear that it is an Act to provide the regulation of removal, storage, and transplantation of human organs and tissues for therapeutic purposes and for the prevention of commercial dealings in human organs and tissues and for the matters connected therewith or incidental thereto. Therefore the intention of the Legislature is only to prevent commercial dealings in human organs and tissues. Section 9(5) of the Act 1994 says that, when 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 requirements of the Act and the Rules made thereunder, grants the applicants approval for the removal and transplantation of the human organs. Section 9(6) says that the permission can be rejected, only if the requirements of the Acts and the rules made thereunder are not complied.”
Highlighting the duties of the Authorisation Committee the Court held that,
“Rule 7(3) says about the duties of the authorisation committee. When the proposed donor and recipient are not near relatives, the authorisation committee shall 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 persons. It is also the duty of the authorisation committee to prepare an explanation of the link between them and the circumstances which led to the offer being made. It is also the duty of the authorisation committee to examine the reason why the donor wishes to donate.
The authorization committee shall examine the documentary evidence of the link, e.g., proof that they have lived together etc. The authorisation committee shall also examine old photographs showing the donor and the recipient together. It is also the duty of the authorisation committee to evaluate that there is no middle man or tout involved. The authorisation committee shall 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. The authorisation committee must ensure that the donor is not a drug addict."
The Court further held that,
"It is further stated in Rule 7(3)(ix) that the authorization committee shall ensure that the near relative or if a near relative is not available, any adult person related to the 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. These are the main duties of the authorisation committee.
There is no provision either in the Act 1994 or in Rule 2014, which says that the organ of a person, who is involved in criminal offences cannot be accepted by the recipient... In other words, 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. These are flimsy reasons. A man is on a death bed and his friend is coming forward to donate his organ. The competent authority rejecting the application observing that the donor is involved in criminal cases when there is no such prohibition as per the Act 1994 and Rule 2014. The Authorisation Committee cannot go beyond their jurisdiction and reject the application. 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. Human blood is passing through all of us.
Similarly, let the Act 1994 become a path breaker for communal harmony and the idea of secularism. Let the Hindus, Christians, Muslims, Sikhs and even persons with criminal backgrounds donate their organs to needy people irrespective of their caste or creed or religion, or criminal background. That will be a day, that was dreamed by the founding fathers of our constitution.”
Reflecting on the object of the Committee, the Court held that,
"The intention of the legislature while enacting the Act 1994 is only to prevent commercial dealing in human organs. If there is no evidence for the same, the Authorisation Committee should take a human approach. If there is no evidence to show that there is no commercial dealing, pragmatism should overtake technicalities, because a man is on death bed. The decisions of the Authorisation Committee should inspire people to donate their organs to needy people. Awareness is necessary to increase the organ donation ratio in India. Some studies in the internet show that, India remains a country with one of the lowest organ donation rates in the world.”
"... it is clear that the criminal antecedents of a donor is not criteria to be considered by the authorization committee.”
Held
The Court thus set aside the rejection Order and the matter was directed to be reconsidered by the respondent, in the light of the observations in this judgment.
Case Details
Case Name: Radhakrishna Pillai v. District Level Authorization Committee for transplantation of Human Organs, Ernakulam
Case Number: WP(C) No. 16216 of 2021
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