Kerala High Court
Dr.S.Ganapathy vs Union Of India on 10 February, 2025
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
W.P.(C).No.2449/2021
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
MONDAY, THE 10TH DAY OF FEBRUARY 2025 / 21ST MAGHA, 1946
WP(C) NO. 2449 OF 2021
PETITIONER/S:
DR.S.GANAPATHY,
AGED 73 YEARS
S/O. LATE ADVOCATE K. SADANANDAN, ANJALI,
MARUTHADI P.O. KOLLAM 691003.
BY ADV DR.S.GANAPATHY,(Party-In-Person)
W.P.(C).No.2449/2021
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RESPONDENT/S:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY, MINISTRY OF
HEALTH AND FAMILY WELFARE, NEAR YDYOG BHAVAN
METRO STATION, MAULANA AZAD ROAD, NEW DELHI
DELHI 110011.
2 STATE OF KERALA,
REPRESENTED BY THE SECRETARY, DEPARTMENT OF
HEALTH AND FAMILY WELFARE, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM 695 001.
3 NATIONAL ORGAN AND TISSUE TRANSPLANT
ORGANISATION,
(NOTTO), 4TH FLOOR, NATIONAL INSTITUTE OF
PATHOLOGY NIOP BUILDING, SAFDURJUNG HOSPITAL
CAMPUS NEW DELHI 110029, REPRESENTED BY ITS
DIRECTOR.
W.P.(C).No.2449/2021
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4 DR. EASWER H V
AGED 53 YEARS, S/O (LATE) HARIHARAN, PROFESSOR
OF NEURO SURGERY, SREE CHITRA TIRUNAL INSTITUTE
OF MEDICAL SCIENCES, TRIVANDRUM, RESIDING AT
SAI GANESH, PURA 144 , KESARI LANE,
MUDAVANMUGAL ROAD, POOJAPPURA, TRIVANDRUM.
ADDL. R4 IMPLEADED AS PER ORDER DATED
09/12/2024 IN I.A.No.1/2024 in WP(C).
BY ADVS.
SMT.MINI GOPINATH, CGC
SENIOR GOVERNMENT PLEADER
SHRI A.J.VARGHESE
A.AHZAR
NADEEDA FATHMA M.M.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
28.01.2025, THE COURT ON 10/02/2025 DELIVERED THE
FOLLOWING:
W.P.(C).No.2449/2021
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JUDGMENT "C.R."
Dated this the 10th day of February, 2025
A.Muhamed Mustaque, J.
Dr.S.Ganapathy, a septuagenarian, has not lost his spirit and
energy in espousing a public cause. He approached this Court in
this Public Interest Litigation with the following prayers.
i. Declare that the concept of 'brain death' is wrong, unscientific and
certification so made is violative of Article 21 of the Constitution of India.
ii. Declare that Section 2(d) and (e) of the Transplantation of Organs
and Tissues Act 1994 (THOTA) is unconstitutional and arbitrary, being
violative of Article 21 of the Constitution of India.
iii. Set aside Sections 2(d) and (e) of the THOTA, 1994,
iv. Issue such other relief as this Hon'ble Court may deem fit and proper
in the facts and circumstances of the case.
v. And award Costs.
2. He had moved this Court on an earlier occasion in WPC
5552/2017 pointing out the malpractice of Hospital authorities in
declaring a patient as brain dead. This Court vide judgment dated
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28/6/2017 directed the petitioner to bring to the notice of the
competent authority in regard to the malpractices and directed the
State to take appropriate action thereon.
3. Later it appears that Dr.Ganapathy realised that the
brain death concept is factually and legally incorrect and there is
no uniform scientific assessment across the globe in declaring a
patient as brain dead. He, accordingly, came up with this writ
petition on the ground that the concept of brain death and
certification in India is unscientific and is violative of Article 21 of
the Constitution. In tune with the larger prayer, he also seeks to
declare Sections 2(d) and 2(e) of the Transplantation of Human
Organs and Tissues Act, 1994 (hereinafter referred to as 'THOTA')
relatable to brain death as unconstitutional.
4. Dr.Ganapathy points out, with various literature published
and response to queries raised by him from Professors in Medicine,
that there is no specific length of time to declare that a brain is
dead and further argues that some patients who have been
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declared as brain dead have come back to life. According to him,
there are instances in the world where a patient declared brain
dead gave delivery to a baby.
5. We had the advantage of hearing Dr. Easwar H.V., a
Professor of Neurosurgery at Sree Chitra Tirunal Institute of
Medical Sciences, Thiruvananthapuram, who got himself impleaded
in the matter to defend the concept of brain death in India. He
defended that brain death is medically and ethically correct.
According to Dr. Easwar, if a patient is not declared brain dead
after the brain's blood circulation and oxygen supply are cut off and
if such a patient is allowed to remain in the hospital forever, it
would displace the cause of a genuine patient to get treatment with
all apparatus and support system. He submits that a patient is
declared brain dead when all functions of the brain are stopped. It
is submitted that in such situations, the patient is unconscious and
he may require ventilatory support.
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6. We appreciate both doctors at the outset for their
illuminating submissions made before this Court, both against and
in support of brain death.
7. What is brain death? In the Indian context, it can be
inferred from Sections 2(d) and 2(e) of the THOTA. Brain-stem
death is defined under Section 2(d), and a deceased person is
defined under Section 2(e) of the Act. A reference to brain-stem
death is made as follows:
2(d) "brain-stem death" means the stage at which all functions of the
brain-stem have permanently and irreversibly ceased and is so certified
under sub-section (6) of section 3;
2(e) "deceased person" means a person in whom permanent
disappearance of all evidence of life occurs, by reason of brain-stem
death or in a cardio-pulmonary sense, at any time after live birth has
taken place.
8. The Apex Court in Aruna Ramachandra Shanbaug v.
Union of India and others [(2011) 4 SCC 454], in the context
of euthanasia, has illustrated how one is declared dead when his
brain is dead in paragraph 107, which reads as follows:
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"107. A person's most important organ is his/her brain. This organ
cannot be replaced. Other body parts can be replaced e.g. if a person's
hand or leg is amputated, he can get an artificial limb. Similarly, we can
transplant a kidney, a heart or a liver when the original one has failed.
However, we cannot transplant a brain. If someone else's brain is
transplanted into one's body, then in fact, it will be that other person
living in one's body. The entire mind, including one's personality,
cognition, memory, the capacity of receiving signals from the five senses
and capacity of giving commands to the other parts of the body, etc.
are the functions of the brain. Hence one is one's brain. It follows that
one is dead when one's brain is dead."
9. It has been pointed out by Dr. Ganapathy that there is no
uniform assessment in regard to brain death across the globe.
According to him, in the US, brain death is certified when the whole
brain has come to irreversible cessation, and it is required to declare
a patient suffering from brain death by observing 24 hours. He
points out that whereas in the UK it is not necessary that the whole
brain has to come to an irreversible cessation, and it is sufficient
that observations are made for 6 hours. It is sufficient in the UK
that all functions of the brain stem irreversibly cease to function.
In India, brain death is certified when all the functions of the brain
stem have permanently and irreversibly ceased {see Section 2(d)
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of THOTA} and it is sufficient that observations are made for 6
hours {see Form 10, note II of THOTA}.
10. We also searched online, and ChatGPT provided us with
the prevalent policies followed in regard to brain death in some of
the countries. The chart generated by ChatGPT on a search made
by us on 5/2/2025 is produced herewith.
11. In an article titled, Human Organ Transplantation: The
Role of Law, by Fred H. Cate, the author narrates how the
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definition of death evolved over the years in US for regulating
organ transplantations as follows:
"A second area for early state regulation of transplantation involved the
definition of "death." In order for organs to be viable for transplantation,
both circulation and respiration must be maintained in the host body.
Death must therefore be determined by the absence of all brain activity.
Prior to 1970, no state statute permitted such a determination of death.
Doctors and hospitals risked liability if they removed artificial life support
systems from a body based on the absence of brain activity and lack of
response to stimuli. The UAGA contained no definition of "brain death"
because of the drafters' concern that the controversy surrounding the
issue of brain death in the 1960s would delay states' passage of the Act.
Instead, the UAGA merely provided that death shall be determined by a
physician who will not participate in the removal or transplantation of
any of the decedent's body parts.
In 1980, however, the National Conference of Commissioners on
Uniform State Laws promulgated its Uniform Determination of Death Act
(UDDA), and both the ABA and the AMA approved it the following year.
Recommended by the President's Commission for the Study of Ethical
Problems in Medicine and Biomedical and Behavioral Research, the
UDDA provides: "An individual who has sustained either (1) irreversible
cessation of circulatory and respiratory functions, or (2) irreversible
cessation of all functions of the entire brain, including the brain stem, is
dead. A determination of death must be made in accordance with
accepted medical standards."1
Fred H. Cate, Human Organ Transplantation: The Role of Law, 20 J. CORP. L. 69 (Fall 1994).
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12. In America, brain stem death is not an acceptable
standard to declare a patient brain dead, this was discussed in an
article titled, "Brain Stem Death: A comprehensive review in
Indian Perspective", by Dhanwate A.D., published in the Indian
Journal of Critical Care Medicine. The relevant portion of the article
is quoted below:
"The Brain-stem death concept is still not accepted by the USA, which
still believes in whole-brain-death formulation. This fact is again
underlined in the recently published White Paper on "Controversies in the
Determination of Death" by the President's Council on Bioethics. The
Council considered the U.K position a "reduction", "conceptually suspect"
and "clinically dangerous". The council advocated the term "total brain
failure" in place of "whole-brain-death". Some authors view this new
term as philosophically neutral and physiologically clearer, while others
find it unhelpful. The council rejects the 1968 Harvard committee's social
construct approach and also the higher brain approach. The council
proposed a new-unifying concept of death. Death remains the cessation
of the organism as a whole and wholeness depends on the existence of
the fundamental vital work of the organism - the work of self-
preservation, achieved through the organism's need-driven commerce
with the surrounding world. The council emphasizes breathing and
consciousness as important forms of environmental commerce. Thus, on
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this account, total brain failure can continue to serve as a criterion for
declaring death."2
13. In the Article "Brain Death and Organ
Transplantation: Ethical Issues" by Calixto Machado, the
author opined that the diagnosis of human death depends on the
irreversibility and potentiality of being dead or alive. He explains
as follows:
"The issue of irreversibility is directly related to the diagnosis of human
death, and it is closely associated with the concept of potentiality, that
is, that some patients still have the potential to live.
Hence, if a patient lacks the potential to retain certain functions, then it
is possible to affirm that his or her condition is "irreversible" regarding
those functions."3
Further, the author says that it is surely possible to keep "alive" for
decades a brain dead patient, or possibly even a decapitated
patient without a functioning heart, with ventilatory assistance and
an extracorporeal machine but the author poses a very relevant
question in this regard i.e, are we preserving a corpse or a human
being?4
Dhanwate AD., Brainstem death: A comprehensive review in Indian perspective. Indian J Crit Care Med
2014;18(9):596-605.
Calixto Machado, Brain Death and Organ Transplantation: Ethical Issues, available at
https://www.researchgate.net/publication/290820428
id
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14. Dr. Ganapathy's argument highlights an ongoing ethical
and medical debate surrounding brain death, particularly regarding
the timing and certainty of such a diagnosis. While brain death is
considered an irreversible loss of all brain function, including the
brainstem, some cases have sparked discussion due to reports of
delayed recovery or prolonged bodily functions, such as
maintaining pregnancy.
15. Several documented instances exist where brain dead
pregnant women have been kept on life support to sustain the fetus
until viability. However, these cases do not necessarily challenge
the concept of brain death but rather demonstrate how medical
intervention can sustain bodily functions temporarily.
16. The assertion that patients declared brain dead have
"come back to life" is highly controversial. True brain death, as
diagnosed through rigorous medical protocols, is considered final.
Cases of misdiagnosis or recovery from deep comas (which are
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different from brain death) may sometimes be mistaken for
reversals of brain death.
17. Our online research reveals shocking news from different
parts of the world in regard to patients who have come back to life
after declaring brain dead. In an online news journal, The New
York Post, a news report dated 29.10.2024 highlights that Thomas
PJ Hoover who was declared brain dead after suffering a drug
overdose in October 2021 woke up from the operating table.5
Similarly, in another news journal, The Scottish Sun, news was
reported on 23/10/2024, about a brain dead patient waking up
before his surgery for organ donation.6 Another news was reported
in a news journal, People, on 07/11/2024, that a patient namely,
Jake Haendel who was declared brain dead by doctors was found
Available at: Kentucky organ donor who woke up on operating table had heartbreaking past involving
death, drugs,last visited on 10/02/2025.
Available at: Haunting moment 'brain dead' patient is wheeled into theatre to donate his organs...before
WAKING UP during deadly surgery - The US Sun | The US Sun, last visited on 10/02/2025.
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to be suffering from locked-in syndrome and recovered after 10
months.7
18. Parliament enacted the THOTA in the year 1994 to
provide regulation of removal, storage and transplantation of
human organs. It is in that context of the enactment, Parliament
defined brain stem death. That means, Parliament assumed brain
stem death as factually and legally tenable. Parliament also
prescribed a procedure to be followed to declare a person as brain
dead for removal of organs if the brain stem has permanently and
irreversibly ceased to function under sub-section 6 of Section 3 of
THOTA. Section 3(6) of THOTA prescribes the following procedure:
"3(6) Where any [human organ or tissue or both] is to be removed from
the body of a person in the event of his brain-stem death, no such
removal shall be undertaken unless such death is certified, in such form
and in such manner and on satisfaction of such conditions and
requirements as may be prescribed, by a Board of medical experts
consisting of the following namely: -
(1) the registered medical practitioner in charge of the hospital in which
brain-stem death has occurred;
Available at : https://people.com/man-declared-brain-dead-talks-locked-in-syndrome-recovery-exclusive-
8740104?utm_source=chatgpt.com, last visited on 10.02.2025.
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(ii) an independent registered medical practitioner, being a specialist to
be nominated by the registered medical practitioner specified in clause
(1), from the panel of names approved by the Appropriate Authority;
(iii) a neurologist or a neurosurgeon to be nominated by the registered
medical practitioner specified in clause (i), from the panel of names
approved by the Appropriate Authority:
Provided that where a neurologist or a neurosurgeon is not available,
the ex-registered medical practitioner may nominate an independent
registered medical practitioner, being a surgeon or a physician and an
anaesthetist or ha intensivist subject to the condition that they are not
members of the transplantation team for the concerned recipient and to
such conditions as may be prescribed;
(iv) the registered medical practitioner treating the person whose brain-
stem death has occurred."
That means, Parliament recognizes brain death and also recognizes
procedures for transplantation of human organs from the patients
declared as brain dead.
19. The Court cannot now enter upon a controversy to define
what is brain death or not. Parliament is the only authority to define
what is brain death. Brain death in India is recognized through a
definite medical procedure. The Court cannot judicially review
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Parliament's wisdom in assuming certain facts as correct for the
application of law.
20. The Apex Court in Jacob Puliyel v. Union of India and
Others [2022 SCC OnLine SC 533] has elucidated the above
aspect as follows:
"22. This Court in a series of decisions has reiterated that courts should
not rush in where even scientists and medical experts are careful to
tread. The rule of prudence is that courts will be reluctant to interfere
with policy decisions taken by the Government, in matters of public
health, after collecting and analysing inputs from surveys and research.
Nor will courts attempt to substitute their own views as to what is wise,
safe, prudent or proper, in relation to technical issues relating to public
health in preference to those formulated by persons said to possess
technical expertise and rich experience. Where expertise of a complex
nature is expected of the State in framing rules, the exercise of that
power not demonstrated as arbitrary must be presumed to be valid as
a reasonable restriction on the fundamental right of the citizen and
judicial review must halt at the frontiers. The Court cannot re-weigh and
substitute its notion of expedient solution. Within the wide judge-proof
areas of policy and judgment open to the government, if they make
mistakes, correction is not in court but elsewhere. That is the comity of
constitutional jurisdictions in our jurisprudence. We cannot evolve a
judicial policy on medical issues. All judicial thought, Indian and Anglo-
American, on the judicial review power where rules under challenge
relate to a specialised field and involve sensitive facets of public welfare,
has warned courts of easy assumption of unreasonableness of
subordinate legislation on the strength of half-baked studies of judicial
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generalists aided by the adhoc learning of counsel. However, the Court
certainly is the constitutional invigilator and must act to defend the
citizen in the assertion of his fundamental rights against executive
tyranny draped in disciplinary power."
21. Further, In Re: Section 6A of the Citizenship Act
1955, [2024 SCC OnLine SC 2880], the Apex court has
elucidated the limits of judicial review as follows:
"48. Similarly, it is imperative to emphasize that courts also lack the
authority to intervene in policy matters when based on the premise of
policy errors or the availability of ostensibly superior, fairer, or wiser
alternatives. The Court cannot do a comparative analysis of policy to
determine which would have been better. As summarized by this Court
in Directorate of Film Festivals v. Gaurav Ashwin Jain:
"16. [...] The scope of judicial review when examining a policy of the
Government is to check whether it violates the fundamental rights of
the citizens or is opposed to the provisions of the Constitution, or
opposed to any statutory provision or manifestly arbitrary. Courts
cannot interfere with policy either on the ground that it is erroneous or
on the ground that a better, fairer or wiser alternative is available.
Legality of the policy, and not the wisdom or soundness of the policy, is
the subject of judicial review".
[Emphasis supplied]
49. This is particularly true for complex areas requiring empirical
knowledge, data inputs, and technical expertise, such as matters
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involving economic policy, scientific policy, or international relations.
Complex social, economic, or commercial issues require a trial-and-error
approach, the weighing of different competing aspects, and often
intricate factual studies. Such matters raise complicated multi-
disciplinary questions that do not fall within the legal domain, are
irreducible to one answer, and require adjustment of priorities amongst
different stakeholders.
50. Since courts are not equipped to evaluate such factual aspects, they
cannot be allowed to formulate policy. In contrast, the legislature has
the correct institutional mechanism to deliberate on various
considerations, as it facilitates decision-making by democratically
elected representatives who possess diverse tools and skill sets to
balance social, economic, and political factors. Such policy matters thus
ought to be entrusted to the legislature. This principle is succinctly
encapsulated by Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd., in
which a 5-judge bench of this Court held that:
"Scales of justice are just not designed to weigh competing social and
economic factors. In such matters legislative wisdom must prevail and
judicial review must abstain."
51. Furthermore, the Courts are not tasked with assessing the efficacy
of policies. A policy may successfully achieve the objectives outlined in
legislation, or it may possess limitations hindering the full realization of
its aims. Regardless, the Court cannot sit in judgment over policy to
determine whether revisions may be necessary for its enhancement...
52. In summary, the judicial review of government policies encapsulates
determining whether they infringe upon the fundamental rights of
citizens, contravene constitutional provisions, violate statutory
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regulations, or display manifest arbitrariness, capriciousness, or mala
fides. The focus of judicial scrutiny is limited to the legality of the policy,
excluding any evaluation of its wisdom or soundness. The Court cannot
compel the government to formulate a policy, evaluate alternatives or
assess the effectiveness of existing policies. This constraint stems from
the principle of separation of powers, where the Court lacks the
democratic mandate and institutional expertise to delve into such
matters. Thus, while the Court can invalidate a policy, it lacks the
authority to create one."
22. Therefore, the Court's hands are tied. Parliament, in its
wisdom, recognizes brain death through a definite medical
procedure. It signifies that brain death is recognised in India, and
the concept of brain death cannot be reviewed by the Court. The
writ petition must fail. It is accordingly dismissed.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE
Sd/-
P. KRISHNA KUMAR, JUDGE
ms
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APPENDIX OF WP(C) 2449/2021
RESPONDENT EXHIBITS
Exhibit R3(a) A TRUE COPY OF THE LINE DIAGRAM
Exhibit R3(b) TRUE COPY OF THE REFERENCE ARTICLE OF
NEUROANATOMY : BRAIN STEM
Exhibit R3(d) TRUE COPY OF ARTICLE DETERMINATION OF BRAIN
DEATH/DEATH BY NEUROLOGIC CRITERIA THE WORLD
BRAIN DEATH PROJECT'
Exhibit R3(c) TRUE COPY OF ARTICLE 'BRAINSTEM DEATH: A
COMPREHENSIVE REVIEW IN INDIAN PERSPECTIVE BY
ANANT DATTATRAY DHANWATE IN THE INDIAN JOURNAL
OF CRITICAL CARE MEDICINE SEPTEMBER 2014 VOL 18
ISSUE 9' WITH ABC OF BRAIN STEM DEATH SECOND
EDITION 1996
PETITIONER EXHIBITS
EXHIBIT P6 TRUE PHOTOSTAT COPY OF THE INFORMATION
DOWNLOADED FROM THE WEBSITE.
EXHIBIT P7 TRUE PHOTOSTAT COPY OF THE INFORMATION
DOWNLOADED FROM THE WEBSITE.
EXHIBIT P8 TRUE PHOTOSTAT COPY OF THE INFORMATION
DOWNLOADED FROM THE WEBSITE.
EXHIBIT P9 TRUE PHOTOSTAT COPY OF THE NEWS ITEM PUBLISHED
IN THE WASHINGTON POST ON 23.12.2015 WHICH WAS
OBTAINED FROM THE WEBSITE.
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EXHIBIT P10 TRUE PHOTOSTAT COPY OF THE OPINION GIVEN BY THE
AMERICAN ACADEMY OF NEUROLOGY, WHICH HAS BEEN
DOWNLOADED FROM THE WEBSITE.
EXHIBIT P1 TRUE PHOTO COPY OF THE ANATOMY OF THE BRAIN.
EXHIBIT P12 TRUE PHOTOSTAT COPY OF THE EMAIL RECEIVED BY
THE PETITIONER FROM PROF. ALAN SHEWMON DATED
27.10.2017.
EXHIBIT P13 TRUE PHOTOSTAT COPY OF THE CODIFIED OPINION
GIVEN BY EXPERTS IN THE FILED BY NEUROLOGY.
EXHIBIT P14 TRUE PHOTOSTAT COPY OF THE RELEVANT PORTIONS OF
CODE OF PRACTICE FOR DIAGNOSIS AND CONFIRMATION
OF BRIAN DEATH ISSUED BY THE ACADEMY OF MEDICAL
ROYAL COLLEGES.
EXHIBIT P15 TRUE PHOTOSTAT COPY OF THE INFORMATION
DOWNLOADED FROM THE WEBSITE.
EXHIBIT P11 TRUE PHOTOSTAT COPY OF THE INFORMATION
DOWNLOADED FROM THE WEBSITE.
EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE INFORMATION
DOWNLOADED FROM THE WEBSITE.
EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE INFORMATION
DOWNLOADED FROM THE WEBSITE.
EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE INFORMATION
DOWNLOADED FROM THE WEBSITE.
EXHIBIT P5 TRUE PHOTOSTAT COPY OF THE INFORMATION
DOWNLOADED FROM THE WEBSITE.
