Madhya Pradesh High Court
Vikash Kumar Kukreja vs The State Of Madhya Pradesh on 16 January, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:1758
1 WP-30737-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 16th OF JANUARY, 2025
WRIT PETITION No. 30737 of 2024
VIKASH KUMAR KUKREJA AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri D. K. Dixit - Sr. Advocate assisted by Shri Pushpendra Kumar
Dubey - Advocate for petitioners.
Shri Vivek Sharma - Dy Advocate General for the respondent/State.
ORDER
This writ petition is filed challenging the order dated 13.08.2024
(Annexure P-1) passed by respondent No.3 the Dean, Shyam Shah Medical
College, Rewa district Rewa, whereby the learned Dean has refused the
permission for transplantation of Kidney to Shri Meghraj Kukreja after
obtaining it from the prospective donor Shri Vijay Kuikreja who is
admittedly suffering from mental illness.
Shri D.K. Dixit, learned Sr. Advocate for the petitioners submits that if
Section 9(1C) of the Transplantation of Human Organs and Tissues Act,
1994 (hereinafter referred to as the 'Act of 1994') is read with Section 11 of
the Act of 1994, then with the permission of the guardian of the mentally
challenged person namely Vijay Kukreja, Kidney can be allowed to be
donated in favour of his brother namely Meghraj Kukreja and therefore, the
NEUTRAL CITATION NO. 2025:MPHC-JBP:1758
2 WP-30737-2024
said order dated 13.08.2024 passed by the learned Dean, Shyam Shah
Medical College, Rewa, district Rewa is liable to be set-aside.
Reliance is placed on the judgment of a co-ordinate Bench of this
Court headed by Hon'bel Shri Justice N.K. Mody as he was then, in W.P.
No. 5259 of 2013(Vijay Singh Kasotiya Vs. State of M.P. & Ors.) decided
on 05.07.2013 and it is submitted that when there is doubt as to the degree of
mental retardedness of a prospective donor, then such act of obtaining his
organ can be proceeded with.
Shri Vivek Sharma, learned Dy. Advocate General for
respondent/State submits that there is clear prohibition under Section 9(1C)
of the Act of 1994 and the petitioner's counsel is misreading the provisions
contained in Section 11 of the Act of 1994.
After hearing learned counsel for the parties and going through the
record.
It is evident that, there is no dispute to the fact that the prospective
donor Shri Vijay Kukreja suffers from mental disease.
Section 9(1C) of the Act of 1994 reads as under:
"No human organs or tissues or both shall be removed from the body
of a mentally challenge person before his death for the purpose of
transplantation."
Section 11 of the Act of 1994 deals with prohibition of removal or
transplantation of human organs or tissues or both for any purpose other than
therapeutic purposes. It is provided that no donor and no person empowered
to give authority for the removal of any human organ or tissue or both shall
NEUTRAL CITATION NO. 2025:MPHC-JBP:1758
3 WP-30737-2024
authorize the removal of any human organ or tissue or both for any other
purpose other than therapeutic purposes.
Section 2(O) of the Act of 1994 defines "therapeutic purposes" to
mean systematic treatment of any disease or the measures to improve health
according to any particular method or modality.
Thus, it is evident that Section 11 of the Act of 1994 does not
overcome the restrictions contained in Section 9(1C) of the Act of 1994 but
provides for a modality for removal of a human organ or tissue for only
therapeutic purposes and for no other purpose.
In the understanding of this Court, that means, that in case of a dead
person an organ can be removed only for therapeutic purpose that too with
the consent of the person who has authority for giving such consent in
relation to that person but it does not mean that, that authority is extended in
relation to a mentally challenged person otherwise that would have been
covered under the explanations given under Section 9(1C) of the Act of
1994.
As far as orders of the co-ordinate Bench dated 05.07.2013 are
concerned, the co-ordinate Bench had taken into consideration that Court
itself looked at the prospective donor Mr. Vinod Bamoriya and found him to
be appearing normal through his looks and upon enquiry it was found that
his IQ was on lower side but at the same time, when he was asked that why
he has come to the Court, then it was replied that, he has come to obtain
permission of the Court to donate his kidney to his younger brother and
under such facts and circumstances some distinction was drawn by the co-
NEUTRAL CITATION NO. 2025:MPHC-JBP:1758
4 WP-30737-2024
ordinate Bench. However, that distinction cannot be extended in view of the
explanations given below Section 9(1C) of the Act of 1994, which reads as
under:
"Explanation.-- For the purpose of this sub-section,--
(i) the expression "mentally challenged person" includes a person with
mental illness or mental retardation, as the case may be;
(ii) the expression "mental illness" includes dementia, schizophrenia
and such other mental condition that makes a person intellectually disabled;
(iii) the expression "mental retardation" shall have the same meaning
as assigned to it in clause (r) of section 2 of the Persons With Disabilities
(Equal Opportunities, Protection of Right and Full Participation) Act, 1995
(1 of 1996)."
Therefore, this Court is of the opinion that, in view of the restrictions
imposed by the statute for removal and transplantation of human organs
prohibiting such removal from the body of a mentally challenged person, this
petition cannot survive and is hereby dismissed.
(VIVEK AGARWAL)
JUDGE
AR
