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2025 DIGILAW 770 (KER)

SALEENA CHEMBRAKUNNATH v. STATE OF KERALA

2025-03-28

C.S.DIAS

body2025
JUDGMENT : The writ petition is filed to quash Ext.P11 order passed by the 2nd respondent. 2. The 1 st petitioner is suffering from chronic liver disease. She has been advised to undergo transplantation. The 3 rd petitioner is the husband of the 1 st petitioner. As there is no suitable relative in the 1 st petitioner's family to donate a part of the liver, the 2 nd petitioner has volunteered to donate a part of his liver. Consequently, the petitioners submitted a joint application along with the requisite documents before the 2 nd respondent seeking permission for the donation. By Ext.P8 order, the 2 nd respondent has withheld the joint application of the petitioners 1 and 2 for the certificate of altruism from the District Police Chief. The action of the 2 nd respondent is arbitrary. Hence, the writ petition. 3. When the writ petition came up for consideration on 14.3.2025, the learned Government Pleader submitted that the 2 nd respondent had kept the petitioners' application on the hold awaiting the certificate of altruism from the Assistant Commissioner of Police, Guruvayoor. The 2 nd respondent would take a decision on the joint application immediately on receipt of the certificate of altruism. Accordingly, the writ petition was adjourned to today. 4. Heard; the learned counsel for the petitioners' and the learned Government Pleader. 5. Today when the writ petition was taken up for consideration, the learned Government Pleader handed over the order dated 26.3.2025 passed by the 2 nd respondent rejecting the petitioners' application for permission. The said order is suo motu accepted on record and marked as Ext.P11 in the writ petition. 6. On a reading of the said order, I find that the 2 nd respondent has rejected the application solely for the reason that the police report does not categorically rule out financial transaction. Therefore, the 2 nd respondent found it is inappropriate to approve the transplantation as per the provisions of the Transplantation of Human Organs and Tissues Rules, 2014 ('the Rules'). 7. The Transplantation of Human Organs and Tissues Act, 1994 (Act No.42 of 1994) ('Act', in short), is enacted to regulate the removal, storage and transplantation of human organs and tissues for therapeutic purposes and for the prevention of commercial dealings in human organs and tissues and for matters connected therewith or incidental thereto. 8. 7. The Transplantation of Human Organs and Tissues Act, 1994 (Act No.42 of 1994) ('Act', in short), is enacted to regulate the removal, storage and transplantation of human organs and tissues for therapeutic purposes and for the prevention of commercial dealings in human organs and tissues and for matters connected therewith or incidental thereto. 8. The Act permits and regulates organ and tissue transplantations among near-relatives and non- near-relatives as per the provisions of the Act, 1994, and the Rules made thereunder. 9. S.2(i) defines "near relatives" as spouse, son, daughter, father, mother, brother, sister, grandfather, grandmother, grandson or granddaughter. 10. The above provision permits the donation of human organs and tissues in favour of a person who is not a near relative but with the prior approval of the Authorisation Committee. 11. To achieve the object of the Act, sub-rule (3) of Rule 7 and Rule 19 of the Transplantation of Human Organs and Tissues Rules, 2014 ('the Rules') have been incorporated in the Rules, which reads as under: "R.7 Authorisation Committee. – *** *** *** (3) When the proposed donor and the recipient are not near relatives, the Authorisation Committee shall, ? – *** *** *** (3) When the proposed donor and the recipient are not near relatives, the Authorisation Committee shall, ? (i) evaluate that there is no commercial transaction between the recipient and the donor and that no payment has been made to the donor or promised to be made to the donor or any other person; (ii) prepare an explanation of the link between them and the circumstances which led to the offer being made; (iii) examine the reasons why the donor wishes to donate; (iv) examine the documentary evidence of the link, e.g. proof that they have lived together, etc.; (v) examine old photographs showing the donor and the recipient together; (vi) evaluate that there is no middleman or tout involved; (vii) evaluate that financial status of the donor and the recipient by asking them to give appropriate evidence of their vocation and income for the previous three financial years and any gross disparity between the status of the two must be evaluated in the backdrop of the objective of preventing commercial dealing; (viii) ensure that the donor is not a drug addict; (ix) ensure that the near relative or if near relative is not available, any adult person related to donor by blood or marriage of the proposed unrelated donor is interviewed regarding awareness about his or her intention to donate an organ or tissue, the authenticity of the link between the donor and the recipient, and the reasons for donation, and any strong views or disagreement or objection of such kin shall also be recorded and taken note of." “R.19. Procedure in case of transplant other than near relatives. ? Where the proposed transplant is between other than near relatives and all cases where the donor or recipient is foreign national (irrespective of them being near relative or otherwise), the approval will be granted by the Authorisation Committee of the hospital or if hospital - based Authorisation Committee is not constituted, then by the District or State level Authorisation Committee." 12. If the Authorisation Committee is satisfied that the applicants fulfill the conditions under sub-rule (3) of Rules 7, it will issue a Certificate under Form -18 of the Rules granting permission for the transplant. 13. If the Authorisation Committee is satisfied that the applicants fulfill the conditions under sub-rule (3) of Rules 7, it will issue a Certificate under Form -18 of the Rules granting permission for the transplant. 13. In Kuldeep Singh v. State of T.N., [ (2005) 11 SCC 122 ], the Honourable Supreme Court, while interpreting sub-section (3) of Section 9 of the Act, has held that the object of the statute is to prevent commercial dealings in human organs. If the donor is not a near relative of the recipient, then the Authorisation Committee has to be satisfied that the real purpose of the donation is due to the affection or attachment or for any other special reason. The Authorisation Committee would be better positioned to ascertain the authorisation's true intent and purpose by lifting the veil of projected affection or attachment and the so-called special reasons and by focusing on the true intent. The burden is on the applicants to establish the real intent by placing relevant materials for consideration before the Authorisation Committee. Whether there is affection, attachment, or special reason is within the special knowledge of the applicants, and a heavy burden is cast on them. 14. Going by the scheme of the Act, the statutory authorities have to be satisfied whether the organ or tissue donation is altruistic as per the parameters laid down under Rule 7 (3) and the materials placed before them. There is no definitive formula to categorically determine whether a donation is altruistic or if there is a commercial transaction. However, in marginal cases, like the present one, the distinction between granting or denying approval for transplantation is separated by a narrow line. The commendable intent of the Act is to prohibit commercial transactions in transplantations and to safeguard vulnerable individuals from exploitation. It’s not to be forgotten that some compassionate individuals are willing to selflessly donate their organs to give a new lease of life to a family member or friend. So, it would be unpragmatic to assess every donation between non-relatives on arithmetical scales or view them with scepticism in such summary proceedings. A rigid and inflexible interpretation of Section 9 (3) of the Act would undermine the laudable object of the provision and render it otiose and nugatory. Even otherwise, nowadays, it is common knowledge that the number of recipients outnumber the donors. 15. A rigid and inflexible interpretation of Section 9 (3) of the Act would undermine the laudable object of the provision and render it otiose and nugatory. Even otherwise, nowadays, it is common knowledge that the number of recipients outnumber the donors. 15. 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. 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 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”. 16. Going by the scheme of the Act, Rules framed thereunder and the law referred to in the aforecited decisions, I am of the firm view that it is for the 2 nd respondent to form an independent opinion as to whether the permission can be granted or not. The 2 nd respondent is not expected to only follow the police report, instead an independent decision has to be taken with cogent reasons. 17. Indisputably, since there is no specific reason stated in Ext.P11 order passed by the 2 nd respondent, I am of the definite view that the said decision is untenable. Therefore, I am convinced and satisfied that the 2 nd respondent is to reconsider the joint application submitted by the petitioners 1 and 2 and take a decision on the same as per the provisions of the Act, Rules framed thereunder and the law laid down by this Court in the aforecited decision. Hence, I am convinced and satisfied that this is an appropriate case for this Court to exercise its extra-ordinary jurisdiction under Article 226 of the Constitution of India. Hence, I am convinced and satisfied that this is an appropriate case for this Court to exercise its extra-ordinary jurisdiction under Article 226 of the Constitution of India. In the above conspectus, I quash Ext.P11 order passed by the 2nd respondent. The 2 nd respondent is directed to reconsider the joint application and pass a reasoned order, after affording the petitioners an opportunity of being heard. The above exercise shall be carried out in accordance with law, and as expeditiously as possible, at any rate, within a period of three weeks from the date of production of a copy of this judgment. It is made clear that this Court has not expressed anything on the merits of the application. The writ petition is ordered accordingly.