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2025 DIGILAW 442 (KER)

Latheef v. p. S/o. Mamu V. p. VS State Of Kerala

2025-03-04

C.S.DIAS

body2025
JUDGMENT : (C.S. DIAS, J.) The writ petition is filed to quash Ext.P21 order passed by the 2 nd respondent rejecting the appeal the petitioners, declining permission to the petitioners for organ transplantation. 2. The 1st petitioner is suffering from chronic kidney disease. He has been advised to undergo kidney transplantation. The 2 nd petitioner has volunteered to donate her kidney. Consequently, the petitioners had submitted a joint application before the 3 rd respondent for permission as contemplated under the Transplantation of Human Organs and Tissues Act, 1994 and the Rules framed thereunder (in short, 'Act and Rules'). However, by Ext.P12 order, the 3 rd respondent had rejected the joint application. Aggrieved by the said order, the petitioners preferred an appeal before the 2 nd respondent. By Ext.P13 order, the 2 nd respondent had dismissed the appeal. The petitioners challenged the orders before this Court. By Ext.P20 judgment, this Court directed the 2 nd respondent to reconsider the appeal. Nonetheless, by Ext.P21 order, the 2 nd respondent has again dismissed the appeal re-confirming Ext.P13 and P12 orders passed by the respondents 2 and 3 respectively. The action of the respondents 2 and 3 is illegal and unreasonable. There is absolutely no reason mentioned in the said orders, even though the Deputy Superintendent of Police, Ranni (Dy.S.P) has issued Ext.P3 certificate of altruism stating that there is no adverse remarks found against the petitioners. It is without adverting to Ext.P3 certificate and without assigning any valid reason that the respondents 2 and 3 have rejected the petitioners joint application for transplantation. Exts.P12, P13 and P21 orders are erroneous and are liable to be quashed. Hence, the writ petition. 3. Heard; the learned counsel for the petitioners and the learned Government Pleader. 4. The materials on record substantiate that the 1 st petitioner is suffering from chronic kidney disease. The 2nd petitioner has volunteered to donate her kidney for the 1 st petitioner. Consequently, the petitioners had submitted a joint application before the 3 rd respondent seeking permission for transplantation as per the provisions of the Act and Rules. The 3 rd respondent has called for a report from the Dy.S.P, to ascertain genuineness of the transplantation. By Ext.P3 certificate, the Dy.S.P specifically found that there were no adverse remarks against the petitioners and there was no objection for granting permission for the transplantation. The 3 rd respondent has called for a report from the Dy.S.P, to ascertain genuineness of the transplantation. By Ext.P3 certificate, the Dy.S.P specifically found that there were no adverse remarks against the petitioners and there was no objection for granting permission for the transplantation. Notwithstanding the above certificate of altruism, the 3rd respondent by the cryptic Ext.P12 order found that there is no link to establish the relationship between the petitioners. The 3 rd respondent also found that the statements given by the donor and the witnesses were contradictory. Even though the petitioners carried up the matter in appeal, the 2 nd respondent reiterated the findings of the 3rd respondent in Ext.P13 order. 5. Aggrieved by Exts.P12 and P13, the petitioners had approached this Court. By Ext.P20 judgment, this Court directed the 2 nd respondent to reconsider the matter after going though all the materials produced by the petitioners. 6. Unfortunately, the 2 nd respondent had reiterated the very same findings in Exts.P12 and P13, without adverting to the findings of the Dy.S.P in Ext.P3 certificate of altruism. The finding of the 2nd respondent in Ext.P21 order is as follows: “6. Based on thorough examination of the evidence presented and the findings outlined above, the Committee unanimously concluded that the appeal petition lacks merit and substance and recommended to reject the appeal petition. The appellants’ failure to establish a credible link between the donor and recipient, combined with the inconsistencies in statements, lack of supporting documentation and the inability of the donor and recipient to cite any incident or anecdote to prove the emotional attachment. Considering the depressive state of mind of the donor, her decision to donate a kidney cannot be considered altruistic or fully informed. The Committee noted that the donor’s vulnerability, due to factors such as gender, financial backwardness, exacerbates the risks associated with this ex-plantation. The substantial financial disparity between the parties only serves to heighten these concerns. The Committee’s decision is guided by the principles of protecting the rights and well-being of vulnerable individuals, ensuring the integrity of the donation process and upholding the spirit of the law provided under Rule 7(3) and 22 of the THOT Rules. And also, is based on the evidence presented and the applicable legal framework. It is imperative to prioritize the safety and dignity of donors, particularly those from disadvantaged backgrounds, and to prevent potential exploitation. 7. And also, is based on the evidence presented and the applicable legal framework. It is imperative to prioritize the safety and dignity of donors, particularly those from disadvantaged backgrounds, and to prevent potential exploitation. 7. Government have examined the matter in details. As the State Level Technical Committee recommended to reject the appeal petition on the basis of the evidence presented and the findings during the hearing, the appeal petition submitted by Shri. Latheef V.P lacks merit and hence rejected. The judgment dated 24.07.2024 of the Hon’ble High Court in WP(C)No.26364/2024 is complied with accordingly.” 7. Recently a Bench of this Court in Ismail Kunju vs. State of Kerala [ 2025 (1) KHC 547 ] has categorically held that, the authorities are obliged to give reasons in the orders passed under the Act. It is apposite to refer to the legal principles in the decision, which reads as follows: “11. Thus, the scheme of the Act of 1994 and the Rules of 2014 obligates the Authorisation Committee to provide the applicants an opportunity to be heard, and if the application is to be rejected, it has to give the reasons in writing. The discretion has to be used pragmatically and all interviews are to be videographed. Therefore, the statutory scheme contemplates and ensures transparency and objectivity in the decision making process of the Committee. The reasons are to be given in reference to the parameters under R.7(3) of the Rules of 2014 as to why the application filed for organ transplantation between the proposed living donor and the recipient, who are not near relatives, is being rejected. 12. Apart from the statutory mandate, as a matter of fairness and transparency in the decision - making, if the Authorisation Committee comes to the conclusion that the application for organ transplantation is not to be approved, then the applicant is entitled to know the reasons, especially since the decision has serious consequences on the applicant. When a person's request for kidney transplant is rejected, it directly affects his / her right to life and health. In the case of Kranti Associates (P) Ltd. and Another v. Masood Ahmed Khan and Others , 2010 (9) SCC 496 , the Hon'ble Supreme Court, after taking a review of the law on the subject of duty to give reasons, summarised certain principles. In the case of Kranti Associates (P) Ltd. and Another v. Masood Ahmed Khan and Others , 2010 (9) SCC 496 , the Hon'ble Supreme Court, after taking a review of the law on the subject of duty to give reasons, summarised certain principles. The Hon'ble Supreme Court held that recording of reasons operates as a restraint on any possible arbitrary exercise of judicial and quasi - judicial or even administrative power. Reasons re - assure that discretion has been exercised by the decision - maker on relevant grounds and by disregarding extraneous considerations. The Hon'ble Supreme Court observed that reasons have become now indispensable component of a decision - making process even by administrative bodies, affecting the right of the citizens. Reasons in the orders facilitate the process of judicial review by superior courts. Insistence on reasons in the order is a requirement for both accountability and transparency. If reasons are not given in the decision making process, then it may not be possible to determine whether the authority has applied its mind to the issue. The Hon'ble Supreme Court also held that reasons in support of decisions must be cogent and clear and pretense of reasons or "rubber - stamp reasons" is not to be equated with a mere valid decision - making process. This law, expounded by the Hon'ble Supreme Court, applies more stringently when an application for an organ transplantation made by a patient at a critical stage is rejected by the Committee on the ground that the donation is not altruistic”. 8. On an overall consideration of the facts, the materials on record, the rival submissions made across the Bar, and the law laid down in the afore cited decision, and taking into account that the respondents 2 and 3 have not independently adverted to any of the contentions raised by the petitioners or the findings in the certificate of altruism submitted by the Dy.S.P, I am of the view that the 3 rd respondent is to be directed to reconsider the matter afresh, in accordance with law and as laid down by this Court in Ismail Kunju’s case. In the result, the writ petition is allowed in the following terms: (i) Exts.P12, P13 and P21 orders are set aside. In the result, the writ petition is allowed in the following terms: (i) Exts.P12, P13 and P21 orders are set aside. (ii) The 3 rd respondent is directed to reconsider the joint application submitted by the petitioners, by adverting to the materials placed on record, especially Ext.P3 certificate of altruism submitted by the Dy.S.P and pass orders on the joint application, as provided under the Act and Rules and the decision in Ismail Kunju's case. It is made clear that the petitioners need not be offered a further opportunity of being heard in view of the materials already placed on record. (iii) The 3 rd respondent shall carry out the above exercise in accordance with law and as expeditiously as possible, at any rate, within four weeks from the date of production of a certified copy of this judgment. The writ petition is ordered accordingly.