Kerala High Court
Asha Lawrence vs State Of Kerala on 23 October, 2024
Author: V.G.Arun
Bench: V.G.Arun
W.P.(C).No.34174/24
2024:KER:79042
1
'CR'
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 23RD DAY OF OCTOBER 2024 / 1ST KARTHIKA, 1946
WP(C) NO. 34174 OF 2024
PETITIONER:
ASHA LAWRENCE
AGED 54 YEARS
D/O M.M.LAWRENCE FLAT NO.41, NARMADA APARTMENTS,
DR.B.D.MARG, NEW DELHI, PIN - 110001
BY ADVS.
R.KRISHNA RAJ
R.PRATHEESH (ARANMULA)
E.S.SONI
SREERAJA V.
LAXMI PRIYAA N.P.
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT
DEPARTMENT OF HEALTH, GOVERNMENT SECRETARIAT
THIRUVANATHAPURAM, PIN - 695001
W.P.(C).No.34174/24
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2
2 D.I.G AND COMMISSIONER OF POLICE
POLICE COMMISSIONERATE, ERNAKULAM, PIN - 682017
3 STATION HOUSE OFFICER
ERNAKUALAM KAZABA POLICE STATION KACHERIPPADI
ERNAKUALAM, PIN - 682026
4 GOVERNMENT MEDICAL COLLGE, KALAMASSERY
REPRESENTED BY ITS PRINCIPAL H.M.T.COLONY, NORTH
KALAMASSERY, PIN - 683503
5 M.L.SAJEEVAN
S/O.M.M.LAWRENCE, RESIDING AT BETHEL, ST.SEBSTIAN
ROAD ELAMKULAM, PIN - 682020
6 SUJATHA BOBAN
D/O M. M. LAWRENCE HEBRON, VAKKATTU ROAD NEAR
HOLIDAY INN HOTEL, CHAKKARAPARAMBU, ERNAKULAM,
PIN - 682032
7 VICAR
ST.FRANCIS XAVIERS CHURCH, KATHRIKADAVU, KALOOR,
ERNAKULAM, PIN - 682017
8 COMMUNIST PARTY OF INDIA (MARXIST)
REPRESENTED BY ITS DISTRICT SECRETARY, LENIN
CENTER, BANERJEE ROAD, KALOOR, ERNAKULAM, PIN -
682017
9 PRATHAP SOMANATH
PRINCIPAL, GOVERNMENT MEDICAL COLLGE, KALAMASSERY
H.M.T.COLONY, NORTH KALAMASSERY ERNAKULAM, PIN -
683503
10 DR.GANESH MOHAN
MEDICAL SUPERINTENDENT GOVERNMENT MEDICAL COLLGE,
KALAMASSERY H.M.T.COLONY, NORTH KALAMASSERY
ERNAKULAM, PIN - 683503
W.P.(C).No.34174/24
2024:KER:79042
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BY ADVS.
ADVOCATE GENERAL OFFICE KERALA
D.G.VIPIN
Benzir P. M.
AKHILA SHUKKOOR VELIYAVEETTIL(K/1129/2013)
DANIEL A.J.(K/000772/2020)
MANISHA V.V(K/1250/2023)
ANNA ROSE NAMBADAN(K/1574/2023)
V.V.SIDHARTHAN (SR.)(S-455)
SHRI.N.MANOJ KUMAR, STATE ATTORNEY()
OTHER PRESENT:
SRI. N. MANOJKUMAR STATE ATTORNEY FOR R1 TO R4.
SRI. V.V. SIDHARTHAN INSTRUCTED BY ADV. D.G.
VIPIN FOR R5. SRI. P.M. BENZIR FOR R6.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 18.10.2024, THE COURT ON 23.10.2024 DELIVERED
THE FOLLOWING:
W.P.(C).No.34174/24
2024:KER:79042
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'CR'
V.G.ARUN, J
= = = = = = = = = = = = = = = = =
W.P.(C).No.34174 of 2024
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Dated this the 23rd day of October, 2024
JUDGMENT
While death draws the curtain on the drama of life, it
sometimes unfolds another drama among the living. This writ
petition portrays a fight among the children of the deceased as
to how the body is to be dealt with. The essential facts are as
under:-
M.M.Lawrence, a respected communist leader, breathed
his last on 21.09.2024. According to his son, the 5th respondent
herein, his father wanted the body to be donated for anatomical
purposes. This desire, expressed by the deceased, was reported
to the authorised officer under the Kerala Anatomy Act, 1957
(hereinafter referred to as 'the Act' for short) by respondents 5
and 6, the 6th respondent being one among the two daughters of
the deceased. Thereupon, arrangements were made to take the
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body to the Government Medical College. At that point of time,
the other daughter, the petitioner herein, objected. According to
the petitioner, even though her father was a Communist, he was
not averse to Christianity, the religion to which he was born. He
continued to be a member of the St.Francis Xaviers Church,
Kathrikadavu, of which the 7th respondent is the Vicar and all
functions in the family, be it baptism, marriage or burial, was
conducted following the religious customs. Hence, petitioner
wanted the body of her father to be buried in the church
cemetery, in accordance with Christian rites and rituals. In
order to prevent the body being handed over to the Medical
College, the petitioner rushed to this Court by filing W.P.
(C).No.33350 of 2024. That writ petition was disposed of by
Ext.P3 judgment, directing the 4th respondent to consider the
objection raised by the petitioner before taking a decision on the
consent alleged to have been given by the deceased. In
compliance of the direction, the 4 th respondent heard the parties
and passed Ext.P6 order, instructing the remains of late
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M.M.Lawrence, donated for educational purposes, to be
embalmed and preserved till the body is taken for teaching
purpose. Aggrieved, the petitioner has approached this Court
again seeking the following reliefs:-
''a. issue a writ of mandamus or such other writ or order or direction
directing the 4th respondent to handover the body of deceased father
of the petitioner Sri. M.M.Lawrence to the petitioner so as to enable
her to bury the body at the 7th respondent's church following Christian
faith rites and rituals.
b. Issue a writ of certiorari or such other writ or order or direction
quashing Exhibit.P-7 order passed by the 4 th respondent
c. Issue a writ of mandamus or such other writ or order or direction
directing the 1st respondent to conduct an enquiry against the 9th and
10th respondent for acting against the provisions of the Act during the
hearing sabotaging the statutory hearing directed to be conducted by
this Hon'ble Court vide Exhibit.P-3 judgment by verifying the visuals of
the CCTV cameras installed at the chamber of the 9 th respondent his
office and also the verandha and also inspecting the phone calls
received by the 9th and 10th respondent before, during and after the
hearing held on 25.9.2024 to find out the influence of any external
forces, including that of the 8th respondent and take appropriate
departmental as well as criminal action against the 9 th and 10th
respondent.''
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2. Heard Adv.R.Krishna Raj for the petitioner, Senior
Advocate V.V. Sidharthan, instructed by Adv.D.G.Vipin, for the 5 th
respondent, Adv.P.M.Benzir for the 6th respondent and
Adv.N.Manoj Kumar, the State Attorney, for the Government and
its officials.
3. The learned counsel for the petitioner assails Ext.P6
order mainly on two grounds; i) the 'expression of request' by
the deceased under Section 4A of the Act should be made to the
authorised officer and ii) the procedure followed by the 4 th
respondent, while deciding the petitioner's objection, is patently
illegal and vitiated by reason of the officer's bias and favourtism.
4. In furtherance of the first contention, it is submitted that
the word 'request' means 'the action of asking for something
formally and politely'. Therefore, Section 4A(1) requires the
person intending to donate his body to make a request in that
regard to the authorised officer. Such a request cannot be made
to the witnesses, who are persons without any authority to take
a decision on the request. In elaboration of the second
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contention it is argued that, in spite of this Court directing the
4th respondent to take a decision on the petitioner's objection, a
Committee was constituted by the 4th respondent and Ext.P6
decision is of that Committee. Thus, the hearing was conducted
in violation of this Court's direction and hence an order issued
pursuant to such hearing cannot be sustained. It is alleged that
the parties were heard separately and copies of the statements
given by the two witnesses, to whom the deceased had
expressed his desire of handing over the body for anatomical
purposes, was not made available to the petitioner. It is also
alleged that the 4th respondent acted in a biased manner during
the hearing and when his action was questioned, went to the
extent of lodging a false complaint against the petitioner's
counsel. Learned counsel also asserted that a perusal of the
video recording of the hearing will prove that it was a farcical
exercise.
5. Learned counsel for the 6 th respondent submitted that
his client had given consent for taking the body of her father for
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anatomical purposes at a time when she was stressed and
emotionally shattered. In that state of mind, the 6 th respondent
was not able to comprehend the matters written in the
documents which she was asked to sign. It is submitted that in
October 2021, the deceased had expressed his desire to be
buried in the church cemetery. Even though the 6 th respondent
recorded that conversation in her mobile phone, that phone is no
longer in her possession. It is finally submitted that the 6 th
respondent also wants her father's body to be buried, following
the Christian rites and rituals.
6. The Senior Counsel appearing for the 5 th respondent
submitted that the deceased had time and again told his client
about his desire to donate his body for anatomical and
educational purposes. The desire was made known, to many
others, including Sri.Rajan and Sri.Abe Abraham, who are
relatives of the deceased. It is submitted by the Senior Counsel
that late M.M.Lawrence having expressed his desire to two
witnesses, the requirement of Section 4A(1) stands satisfied and
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the 4th respondent had correctly rejected the objection raised by
the petitioner.
7.Refuting the allegation that the 4th respondent had acted
in an arbitrary manner, the learned State Attorney argued that
sufficient opportunity was given to the petitioner and,in Ext.P6
order, her objection is dealt with in detail. As regards
constitution of a Committee by the 4 th respondent, it is submitted
that, since the direction by this Court was to the 4 th respondent,
viz, the Medical College represented by its Principal, it was
decided to constitute a Committee consisting of teachers and
staff of the Medical College. With reference to Sections 4A(1)
and 4A(2), it is contended that the objection of near relatives
become relevant only if the party in possession decides to
handover the body for anatomical purposes, without the
deceased expressing such a request, either orally or in writing.
Finally it is submitted that, at least in death, a personality like
late M.M.Lawrence, who had toiled for the upliftment of the
downtrodden throughout his life, should be allowed to transcend
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religion and continue his public service by donating his body.
8. In order to consider whether the 'expression of request'
under Section 4A(1) is to be made to the authorised officer, it is
essential to carefully scrutinize and understand the provision,
the relevant portion of which is extracted below;
"4A. Taking possession of dead bodies with the prior consent
of deceased persons.- (1) If any person, either in writing at any time or
orally in the presence of two or more persons during his last illness, has
expressed an unequivocal request that his body be used for the purpose of
conducting anatomical examination and dissection after his death the party
lawfully in possession of his body after his death, may, unless, the said party
has reason to believe that the request was subsequently withdrawn, report
the fact to the authorised officer and permit the said office to take
possession of the body and hand it over to the authority in charge of a
teaching medical institution if it is required by that authority.
(2) Without prejudice to sub-section (1), the party lawfully in
possession of the body of a deceased person may permit the authorised
officer to take over possession of the body for the purposes aforesaid
unless that party has reason to believe-
(a) that the deceased had expressed an objection to his body being
so dealt with after his death, and had not withdrawn it; or
(b) that the surviving spouse or any near relative of the deceased
objects to the body of the deceased being so dealt with."
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9. The requirements of Section 4A(1), as discernible from
the provision, are as follows;
(i) The deceased person should have, during his last last illness,
expressed an unequivocal request that his body be used for the
purpose of conducting anatomical examination and dissection after
his death.
(ii) Such request should have been expressed either in writing, or
orally in the presence of two witnesses.
(iii) The party lawfully in possession of the body after the death of
the person who had expressed the request, may report that fact to
the authorised officer, unless the party in possession has reason to
believe that the request was subsequently withdrawn.
(iv) After reporting to the authorised officer, the party in possession
shall permit the office of the authorised officer to take possession of
the body.
(v) Based on the permission granted, the authorised officer shall
take possession and handover the body to the authority in charge of
a teaching medical institution.
10. In the case at hand, the fact that the 5 th respondent was
in possession of the body of late M.M.Lawrence is not disputed
by the petitioner or the 6th respondent. The deceased had
expressed his request to handover his body during his last illness
to two witnesses. Being convinced that their father had not
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withdrawn the request expressed in the presence of witnesses,
respondents 5 and 6 had reported that fact to the authorised
officer. The petitioner's objection against handing over of the
body is on the premise that her father was not averse to
Christianity and continued to be a member of the 7 th
respondent's church. Such objection cannot be countenanced,
when the deceased had, during his last illness expressed his
request in the manner stipulated in Section 4A(1). In this
context, it is also pertinent to note that the objection of near
relatives becomes relevant only when the authorised officer is
permitted to take possession of the body, without the deceased
expressing such a request. This position is clear from a
comparison of the terminology used in Sections 4A(1) and 4A(2).
The statement of the 6th respondent that, in October, 2021, her
father had expressed his desire to be buried in the Church, even
if accepted, is of no avail since, for the purpose of Section 4A(1),
only the expression of request made by the deceased during
his/her last illness can be taken into consideration.
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11. The contention that the words, 'express an unequivocal
request' used in Section 4A(1) indicates that the request should
be made to the authorised officer, is liable to be rejected, since
such restricted interpretation, by picking one word, is contrary
to the literal meaning of the provision, when read as a whole. It
will also be profitable to note that, wherever the legislature has
intended the request to be made to an authority, it is so stated in
the provision itself. For instance, Section 3 of the
Transplantation of Human Organs and Tissues Act, 1994
(hereinafter referred to as 'the Transplantation Act) mandates
the authorisation from the deceased donor in the specified
manner, for removal of an organ or tissue from the body. The
specification for removal is contained in Rule 5 of the
Transplantation of Human Organs and Tissues Rules, 2014
(hereinafter referred to as "the Rules"). The contextually
relevant portion of Section 3 of the Transplantation Act and
corresponding Rule 5 are extracted hereunder;
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''3. Authority for removal of 1 [human organs or tissues or both].
--(1) Any donor may, in such manner and subject to such conditions as
may be prescribed, authorise the removal, before his death, of any 2
[human organ or tissue or both] of his body for therapeutic purposes.
xxx xxxx xxx
(2) If any donor had, in writing and in the presence of two or more
witnesses (at least one of whom is a near relative of such person),
unequivocally authorised at any time before his death, the removal of
any human organ of his body, after his death, for therapeutic purposes,
the person lawfully in possession of the dead body of the donor shall,
unless he has any reason to believe that the donor had subsequently
revoked the authority aforesaid, grant to a registered medical
practitioner all reasonable facilities for the removal, for therapeutic
purposes, of that 2 [human organ or tissue or both] from the dead
body of the donor.
Rule 5. Duties of the registered medical practitioner.- (1) The
registered medical practitioner of the hospital having Intensive Care
Unit facility, in consultation with transplant coordinator, if available, shall
ascertain, after certification of brain stem death of the person in
Intensive Care Unit, from his or her adult near relative or, if near
relative is not available, then, any other person related by blood or
marriage, and in case of unclaimed body, from the person in lawful
possession of the body the following, namely:-
(a) whether the person had, in the presence of two or more witnesses
(at least one of who is a near relative of such person), unequivocally
authorised before his or her death as specified in Form 7 or in
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documents like driving license, etc., wherein the provision for donation
may be incorporated after notification of these rules, the removal of his
or her organ(s) or tissue(s) including eye, after his or her death, for
therapeutic purposes and there is no reason to believe that the person
had subsequently revoked the aforesaid authorisation;''
12.The remaining challenge is about the manner in which
the hearing was conducted by the 4 th respondent. Here, it is
contended that this Court having directed the 4 th respondent to
consider the objection and pass orders, he could not have
constituted a Committee for the purpose. True, this Court had
earlier directed the 4th respondent to take a decision on the
objection raised by the petitioner. Being so, the 4 th respondent
himself could have heard the petitioner and taken the decision.
Be that as it may, the mere fact that the 4 th respondent had
constituted a Committee to assist him is of no consequence,
since Ext.P6 order is passed by the 4th respondent. The next
aspect to be noted is that the direction by this Court only
required the 4th respondent to assimilate facts for the purpose of
deciding the petitioner's objection. In that process, the 4 th
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respondent cannot be expected to function as a quasi-judicial
authority and conduct hearing as in an adversarial litigation.
Therefore, the mere fact that copies of the statements of
witnesses were not furnished to the petitioner, is also not
sufficient to interfere with Ext.P6, particularly when the decision
is found to be correct.
13. Learned counsel for the petitioner strenuously
contended that the haphazard manner in which the hearing was
conducted and the falsity of the allegations raised against the
petitioner's counsel, which has even resulted in a crime being
registered, will be evident on viewing the video recording of the
hearing process. The writ court is not expected to embark on a
fact finding mission for deciding the veracity of the allegations.
It is for the Police to ensure the correctness of the allegations,
which has resulted in registration of the crime and in that
investigation, the video recording may also form a piece of
evidence.
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For the reasons aforementioned, the writ petition is
dismissed.
Sd/-
V.G.ARUN, JUDGE
sj
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APPENDIX OF WP(C) 34174/2024
PETITIONER EXHIBITS
Exhibit P- 1 TRUE COPY OF THE COMPLAINT FILED BY THE
PETITIONER BEFORE THE 2ND RESPONDENT
DATED 22.09.2024
Exhibit P-2 TRUE COPY OF THE COMPLAINT FILED BY THE
PETITIONER BEFORE THE 4TH RESPONDENT
DATED 22.09.2024
Exhibit P-3 TRUE COPY OF THE JUDGEMENT OF THIS
HON'BLE COURT IN W.P.(C).NO.33350/2024
DATED 23.09.2024
Exhibit P- 4 TRUE COPY OF NOTICE ISSUED BY THE 4TH
RESPONDENT DATED 24.09.2024
Exhibit P-5 TRUE COPY OF THE WRITTEN SUBMISSIONS
SUBMITTED BY THE PETITIONER DATED
25.09.2024
Exhibit P -6 TRUE COPY OF THE ORDER OF THE COMMITTEE
CONSTITUTED BY THE 4TH RESPONDENT DATED
25.09.2024
Exhibit P-7 TRUE COPY OF THE RECEIPT ISSUED BY THE
COMMITTEE CONSTITUTED BY THE 4TH
RESPONDENT DATED 25.09.2024
Exhibit P-8 TRUE COPY OF THE NEW AFFIDAVIT SUBMITTED
BY THE 5TH RESPONDENT BEFORE THE
COMMITTEE CONSTITUTED BY THE 4TH
RESPONDENT DATED 25.09.2024
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Exhibit P-9 TRUE COPY OF THE FIR IN CR.NO. 904/2024
OF KALAMASSERY POLICE STATION DATED
25.09.2024
Exhibit P-10 TRUE COPY OF THE FACE BOOK POST OF THE
10TH RESPONDENT DATED NIL
Exhibit P-11 TRUE COPY OF THE NEW AFFIDAVIT SUBMITTED
BY THE 5TH RESPONDENT BEFORE THE
COMMITTEE CONSTITUTED BY THE 4TH
RESPONDENT DATED 24.09.2024
RESPONDENT EXHIBITS
Exhibit R4(a) True copy of the written submission
given by Sri. Abe Abraham dated
25.09.2024.
Exhibit R4(b) True copy of the written submission
given by Sri. P.S.Rajan dated
25.09.2024.
PETITIONER EXHIBITS
Exhibit P 12 True copy of the complaint filed by the
petitioner before the police dated
04.10.2024
Exhibit P 13 Receipt issued to petitioner dated
04.10.2024
Exhibit P 14 . A copy of the video showing the
prayers made in the residence of the 5th
respondent dated Nil
Exhibit P 15 The video showing this conversation
dated Nil
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Exhibit P 16 The video showing this conversation
dated Nil
Exhibit P17 THE MINUTES OF THE HEARING CONDUCTED BY
THE 4TH RESPONDENT ON 25.09.2024 AS
DIRECTED BY THIS HONOURABLE COURT
