Let organ donation law become path breaker for communal harmony: Kerala HC
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Let the Transplantation of Human Organs and Tissues Act of 1994 become a path breaker for communal harmony and secularism so that people of different faiths and criminal backgrounds can donate their organs to the needy irrespective of caste, creed, religion or criminal antecedents, the Kerala High Court has said.
The court further said, “There is no organ in the human body like a criminal kidney or criminal liver or criminal heart! There is no difference between the organ of a person without a criminal antecedent and the organ of a person who has no criminal antecedents. Human blood is passing through all of us”.
It also said that if a body is buried, it will rot and if cremated, it will turn into ash. However, if the organs are donated, it would give life and happiness to many.
The observations by Justice P V Kunhikrishnan came while setting aside the decision of the Ernakulam District Level Authorization Committee for Transplantation of Human Organs, rejecting an application for organ donation on the ground that the donor had criminal antecedents.
Deprecating the committee’s decision, the high court said the criminal antecedents of a donor was not a criteria to be considered by the panel as per the provisions of the 1994 Act or the Transplantation of Human Organs and Tissues Rules of 2014 framed under it.
The judge said if the committee’s stand was allowed, “I apprehend that, the respondent (committee) will reject such applications for permission to donate organs even on the ground that the donor is a murderer, thief, rapist, or involved in minor criminal offences. I hope, they will not reject the applications because the donor is a Hindu, Christian, Muslim, Sikh, or person in a lower caste after comparing with the religion and caste of the recipient.”
“According to my opinion, there is no logic to the finding of the committee for rejecting the application…if the reasoning of the authority is accepted, the only conclusion that is possible about such reasoning of the authorisation committee is that the committee believes that the criminal behaviour of the donor will percolate to the person who accepts the organs! What sort of reasoning is this? No person with common sense can agree with the same. These are flimsy reasons,” the judge said.
The court said if there was no evidence to show that there is no commercial dealing, “pragmatism should overtake technicalities, because a man is on death bed”.
“The decisions of the authorisation committee should inspire people to donate their organs to needy people. Awareness is necessary to increase the organ donation ratio in India. Some studies on the internet show that India remains a country with one of the lowest organ donation rates in the world,” the court observed.
The court also disapproved of the delay in deciding the organ donation application in the instant case where it was rejected four months after it was filed and that too after a contempt plea was moved in the high court.
“Moreover, delay in convening meetings and taking decisions by the authorisation committee in applications for organ donation is also to be deprecated. This should not be allowed to continue in the future,” the court said and directed the Chief Secretary of Kerala to issue appropriate orders directing all the authorities concerned to convene meetings to consider the applications submitted as per Act 1994 and Rule 2014, as expeditiously as possible, at any rate, within one week from the date of receipt of such applications.
“In urgent cases, the authority concerned should convene the meeting and consider the applications forthwith,” the court said.
It further said that a time limit was necessary for convening the meeting also and if there was any delay of more than one week for convening a meeting from the date of receipt of the application by the committee, it should mention the reason for the delay in the order.
With these observations and directions, the court set aside the committee’s decision rejecting the application and ordered it to reconsider the same as expeditiously as possible, “at any rate, within one week from the date of receipt of a copy of this judgment”.
The Chief Secretary was directed to issue the necessary orders and produce a copy of the same before the Registrar General of the high court within one month from the date of receipt of a copy of the judgment.
The judgement came on the plea of a man, whose both kidneys have failed, challenging the committee’s July 8 decision rejecting the application for permitting his former driver, with whom he has a close relationship, to donate one of his kidneys to him.
There is no criminal organ in human body: Kerala High Court
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Court sets aside panel’s order that rejected organ donation plea citing criminal antecedents of donor
Observing that there is no “criminal kidney, liver or heart” in the human body, the Kerala High Court on Tuesday set aside an order of the Ernakulam District Level Authorisation Committee for Transplantation of Human Organs that turned down a request for organ transplantation saying that the donor is involved in multiple criminal cases.
Justice P.V. Kunhikrishnan, while setting aside the order, observed that “there is no difference between the organ of a person without a criminal antecedent or of a person with criminal antecedents. Human blood is passing through all of us.”
Allowing a writ petition filed by Radhakrishna Pillai of Kollam, a kidney patient, challenging the order of the committee, the judge pointed out that no provisions of the Transplantation of Human Organs and Tissues Act, 1994, and the Transplantation of Human Organs and Tissues Rules, 2014, supported the stand of the committee. The intention of the legislature was only to prevent commercial dealings in human organs and tissues.
The court expressed apprehension whether the committee would reject applications for permission to donate organs even on the ground that the donor was a murderer, thief, rapist or involved in minor criminal offences. The judge expressed the hope that the committees would not reject the applications because the donor was a Hindu, Christian, Muslim, Sikh, or person of a lower caste after comparing with the religion and caste of the recipient.
Noble act
The court observed “if a person dies, he will be buried and he will rot. If a person is cremated, he will become ash, but if the organs of his body are donated, he will give life and happiness to many.” Therefore, the finding of the committee was liable to be set aside.
If the reasoning of the committee was accepted, the only possible conclusion was that it believed that the criminal behaviour of the donor would percolate to the persons who received the organs. No person with common sense could agree with these flimsy reasons given by the committee
The District Level Authorisation Committee submitted that a person willing to donate his kidney to a needy patient could not do so as he was involved in multiple criminal incidents.
The court directed the committee to reconsider the petitioner’s plea within one week.
Nothing Like ‘Criminal Kidney’: Kerala High Court Says Criminal Antecedents Of Donor Irrelevant For Organ Donation
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The Kerala High Court recently reiterated that the criminal antecedents of a donor are not criteria to be considered by the authorization committee for transplantation of human organs.
Justice P.V. Kunhikrishnan observed,
" There is no organ in the human body like a criminal kidney or criminal liver or criminal heart! There is no difference between the organ of a person without a criminal antecedent and the organ of a person who has no criminal antecedents. Human blood is passing through all of us."
The development ensued in a case where a kidney patient approached the Court challenging the decision of a District Level Authorization Committee for transplantation of Human Organs, rejecting his application of an organ donor on the ground that the donor is involved in multiple criminal offences.
“If this stand of the respondent is allowed, I apprehend that the respondent will reject applications if the donor is a murderer, thief, rapist, or involved in minor criminal offences. I hope one day they do not reject applications if the donor is a Hindu, Christian, Muslim, Sikh, or person in a lower caste after comparing with the religion and caste of the recipient,” the Court said.
The Petitioner had contended that such an order was unsustainable for the reason that there is no prohibition in law on organ donation by a criminal. He admitted that although the earlier Rule which was in force from 1994 mandated that a donor should not have any criminal antecedents, the same was substituted by the 2014 Rules. Therefore, such a stipulation is not there in the new Rules.
The Government Pleader agreed with the petitioner in the fact that there is no provision in the Act or Rules prohibiting the donation of organs by a person involved in criminal offences. However, the Government pleader submitted that there is an alternative remedy to the petitioners through which they can file an appeal under Section 17 of the Act.
The Court perused the entire provisions in the Transplantation of Human Organs and Tissues Act and the Transplantation of Human Organs and Tissues Rules, 2014 and found no provision to support the stand of the authorization committee.
Similarly, it was found that the intention of the Legislature was only to prevent commercial dealings in human organs and tissues. Section 9(6) says that the permission can be rejected only if the requirements of the Acts and the Rules made thereunder are not complied with.
Accordingly, the Court observed that nowhere in the Rules or the Act does it prohibit a person involved in criminal offences to donate his organs to a willing recipient.
It stated that there was no logic to the finding of the committee for rejecting the application of a friend who comes forward to donate his kidney to a man on his deathbed.
“…if the reasoning of the authority is accepted, the only conclusion that is possible about such reasoning of the Authorisation Committee is that the committee believes that the criminal behaviour of the donor will percolate to the person who accepts the organs! What sort of reasoning is this? No person with common sense can agree with the same. These are flimsy reasons.”
Reliance was also placed on the decision of Shoukath Ali Pullikuyil v. District Level Authorization Committee (2017(2) KLT 1062 ) to conclude that the criminal antecedents of a donor are not criteria to be considered by the authorization committee.
Accordingly, the Court allowed the petition and thereby set aside the impugned decision. The Authorization Committee was further directed to reconsider the application of the petitioner.
Case Title: Radhakrishna Pillai v. District Level Authorization Committee for Transplantation of Human Organs
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