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2012 Supreme(Del) 2236
Delhi High Court
Rajiv Shakdher, J.
Pawan Anand & Anr. - Appellant
Versus
Director General of Health Services & Ors. - Resopndent
WP(C) No. 5960 of 2012
Decided On : 01-10-2012
For the Petitioners:Mr. Mukesh Anand, Advocate
For the Respondents: Mr. Rajeeve Mehra, ASG with Mr. M. Sumeet Pushkarna, CGSC.
For the Respondent No. 1 to 3:Mr. Gaurav Sharma, Mr. Ashish Virmani, Advocates.
The significance of the authorities' assessment and evidence in upholding decisions under the Transplantation Act, particularly focusing on financial disparity and love and affection between the donor and recipient.
Headnote:
Transplantation Act - Liver Transplantation - Section 9, Section 17 - The court discussed the provisions of the Transplantation of Human Organs and Tissues Act, 1994, particularly focusing on section 9 which prohibits commercial dealings in human organs and section 17 which allows appeals. The court emphasized the significance of the authorities' assessment and upheld the decision based on the evidence of financial disparity and lack of love and affection between the donor and recipient.
Fact of the Case:
The case involved a liver transplantation where the Authorization Committee rejected the request due to perceived financial disparity and lack of love and affection between the donor and recipient. The petitioners challenged this decision in court.
Finding of the Court:
The court found that the rejection was justified based on the evidence of financial disparity and lack of love and affection between the donor and recipient.
Issues: The main issues were the rejection of the liver transplantation request by the Authorization Committee based on financial disparity and lack of love and affection, and the subsequent challenge by the petitioners.
Ratio Decidendi: The court upheld the decision of the authorities based on the evidence of financial disparity and lack of love and affection between the donor and recipient, emphasizing the significance of the authorities' assessment.
Final Decision: The writ petition was dismissed, and the orders of the authorities below were sustained.
1. There are few decisions which challenge the intrinsic attributes of a human being, which is, to tilt in favour of life and equity, as and when equity coalesces with law. At times, similar challenges are faced by Judges. This is one such case. Much of the initial dilemma faced by me was resolved on coming across the reply that Justice Holmes gave to his friend Judge learned Hand who while parting his company, exhorted him: “Do justice, Sir, do justice”. Justice Holmes in his inimitable style turned back and replied: “that is not my job. It is my job to apply the law”. The takeaway for me is: for a judge it is always about justice according to law.
2. With this preface, let me first pen down, the facts obtaining in the present case. By and large, the facts are not in dispute.
2.1 There are two petitioners before me. Petitioner no.1 is the son of one, Mrs. Urmila Anand, who is suffering from a chronic liver disease accompanied with cirrhosis of liver and is therefore, in urgent need of liver transplantation (hereinafter referred to as the recipient). Petitioner no.2, is one, Smt. Gulab Devi (hereinafter referred to as donor), who is the potential donor of a part of her liver, in respect of which, permission is sought under the Transplantation of Human Organs and Tissues Act, 1994 (in short the Transplantation Act). The recipient is approximately 62 years of age, while the donor is 43 years of age; is married and has five children, of which three are unmarried, while the other two being a son and a daughter are married. The unmarried children are aged: twenty (20), eighteen (18) and sixteen (16) years. The married son stays separately and is not financially supporting the donor's family.
2.2 It appears that in and around April, 2012, the recipient discovered that she was suffering from a chronic liver disease and hence, required a liver transplant. The recipient's family appears to have approached Indraprastha Apollo Hospital, Delhi (in short Apollo Hospital) for advice and treatment.
2.3 The treating doctor, one, Dr. Subash Gupta vide communication dated 16.04.2012, wrote to the Authorisation Committee, in the State of U.P., for issuance of a No Objection Certificate (NOC), under the Transplantation Act, to enable the necessary medical procedure to be undertaken for effecting the transplant.
2.4 A certificate was also issued by the Centre for Liver and Biliary Surgery, on 08.06.2012, certifying thereby, the necessity of a requirement of a liver transplant by the recipient.
2.5 The recipient has also obtained NOC from the office of the District Magistrate, Agra dated 21.05.2012. Recommendations have also been obtained by the recipient from the Mayor of Agra and a Member of Parliament from Agra dated 22.05.2012 and 23.05.2012 respectively.
2.6 With these certificates and recommendations in hand, petitioner no.1 approached the Authorization Committee in the State of Delhi as the medical procedure was required to be conducted at Delhi. Vide a communication dated 07.06.2012, the request for effecting liver transplant was rejected. The said communication very cryptically informed the consultant (i.e., treating doctor of the recipient), that permission for transplant could not be granted for the following reasons :-
(i). there was no reciprocal relationship between the recipient and the donor;
(ii). there appears to be an "association" of "Master" and "Care Taker" between the two; and
(iii). there was a gross financial disparity between the donor and the recipient.
2.7 Aggrieved by the same, petitioner no.1 approached this court by way of a writ petition, bearing no.3734/2012. Simultaneously, an appeal under section 17 of the Transplantation Act, was also filed. The said writ petition came up for hearing before this court on 15.06.2012. On the said date, the writ petition was disposed of with a direction to respondent no.1, to dispose of the appeal within a period of one week from the date of the order. Respondent no.1, was
