The Kerala High Court recently comprising of a bench of Justice P.V. Kunhikrishnan reiterated that the criminal antecedents of a donor are not criteria to be considered by the authorisation committee for transplantation of human organs. (Radhakrishna Pillai v. District Level Authorization Committee for Transplantation of Human Organs)
The court said, "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".
It also said that if a body is buried, it will rot and if cremated, it will turn into ash. However, if the organs are donated, it would give life and happiness to many.
Facts of the case
The plea was filed by Radhakrishna Pillai, a Kollam native kidney patient, challenging an order issued by the Ernakulam District Level Authorisation Committee for Transplantation of Human Organs. In his plea, Pillai claimed that the Committee had rejected his application for kidney transplantation citing the donor's criminal history as the reason.
Contention of the Parties
The learned counsel for the petitioners submitted that Ext.P9 order is unsustainable. The learned counsel submitted that the findings in Ext.P9 that, a person who is involved in multiple criminal offences cannot be a donor is unsustainable in the light of the fact that, there is no prohibition for the same as per the Act 1994 and Rule 2014.
The learned counsel submitted that, as per Rule 7(3), the authorization committee needs to consider only the situation narrated in Clause (i) to (ix) in it. There is no prohibition for accepting the organ of a person, who is involved in criminal offences.
The learned counsel submitted that the earlier Rule which was in force from the year 1994 was substituted by Rule 2014. In the earlier Rule, there was a specific provision that says that a donor should not have any criminal antecedents. Such a stipulation is not there in Rule 2014. The only embargo in Rule 2014 is that the donor should not be a drug addict. The learned counsel submitted that Ext.P9 order is unsustainable.
The learned Government Pleader fairly conceded that there is no provision in the Act 1994 and Rules 2014, prohibiting the donation of organs by a person, who is involved in criminal offences. But the Government pleader submitted that there is an alternative remedy to the petitioners against Ext.P9 and they can file an appeal under Section 17 of the Act 1994.
Courts Observation and Judgment
The Kerala High Court, while quashing the order slammed the authority over its decision, "I apprehend that, the respondent (committee) 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. 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."
The court said, "According to my opinion, there is 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. These are flimsy reasons."
The Court perused the entire provisions in the Transplantation of Human Organs and Tissues Act and the Transplantation of Human Organs and Tissues Rules, 2014 and found no provision to support the stand of the authorization committee.
Similarly, it was found that the intention of the Legislature was only to prevent commercial dealings in human organs and tissues. 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 with.
The Court further observed, "No provisions in the Transplantation of Human Organs and Tissues Act, 1994 and The Transplantation of Human Organs and Tissues Rules, 2014 support the stand of the committee. The intention of the Act and rule is only to prevent commercial dealings in human organs and tissues. 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 is rejecting the application observing that the donor is involved in criminal cases when there is no such prohibition as per the 1994 Act."
The bench even relied on the decision of Shoukath Ali Pullikuyil v. District Level Authorization Committee (2017(2) KLT 1062) to conclude that the criminal antecedents of a donor are not criteria to be considered by the authorization committee.
The Court allowed the petition and thereby set aside the impugned decision. The Authorization Committee was further directed to reconsider the application of the petitioner.
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