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2014 Supreme(Guj) 747
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BHASKAR BHATTACHARYA and J.B.PARDIWALA, JJ.
KISHOR MADANGOPAL PAUL –ADVOCATE - Applicant
Versus
STATE OF GUJARAT - Opponent
WRIT PETITION (PIL) NO. 101 of 2014
Decided On : 11/08/2014
Advocate Appeared:
PARTY-IN-PERSON, ADVOCATE for the Applicant(s) No. 1 MR PK JANI, GOVERNMENT PLEADER with MR PARTH BHATT, AGP for the Opponent(s) No. 1 MR IH SYED, ADVOCATE for the Opponent(s) No. 3 MR P.G.DESAI, SR.ADVOCATE with MR RUTUL P DESAI, ADVOCATE for the Opponent(s) No. 2
The insistence on the production of passport alone for kidney transplant was not sustainable in law, and the statutory rules prescribing various documents for identification had to be followed.
Headnote:
Passport - Kidney Transplant - Transplantation of Human Organs Act, 1994, Rules 2014 - The court analyzed the insistence on the part of the respondent no.2 for a passport of the donor and recipient for kidney transplant as the only mode of proof of identity. The court found that the statutory rules prescribed various documents for identification, and the insistence for production of passport only was not sustainable in law. The court directed that there should not be insistence on the production of passport alone for kidney transplant, and other documents referred to in the rules should be considered after properly verifying their genuineness.
Fact of the Case:
The petitioner filed a public interest litigation regarding the insistence on producing a passport for kidney transplant from outside the State of Gujarat, leading to immense difficulty for patients without a valid passport.
Finding of the Court:
The court found that the insistence on the production of passport alone for kidney transplant was not sustainable in law, as the statutory rules prescribed various documents for identification.
Issues: The main issue was whether the insistence on the production of passport alone for kidney transplant was tenable in law.
Ratio Decidendi: The administrative or executive instructions cannot override the statutory rules, and the statutory rules have to prevail. The court directed that there should not be insistence on the production of passport alone for kidney transplant, and other documents referred to in the rules should be considered after properly verifying their genuineness.
Final Decision: The court directed that there should not be insistence on the production of passport alone for the purpose of kidney transplant, and if other documents referred to in the rules are produced for the purpose of identification, then the respondent no.2 shall take those documents into consideration after properly verifying the genuineness of the same.
JUDGMENT :
J.B.PARDIWALA, J.
By this writ-application in the nature of a public interest litigation, the petitioner, a practicing advocate and a human rights' activist has brought to our notice that the respondent no.2, as a condition precedent, has been insisting that the patients who come for kidney transplant from outside the State of Gujarat must produce a passport and are refusing to accept other I.D. proofs viz. Voter ID Card, PAN Card, Marriage Card, School Leaving Certificate etc., as a result, those patients or donors who do not possess a valid passport are put to immense difficulty.
The case made out by the petitioner may be summed up thus:
The petition is being filed in the interest of people residing outside the State of Gujarat and who come to Gujarat for kidney transplant. They have to prove blood relations only by way of producing a passport. The hospitals are refusing to accept other ID proofs.
The petitioner came across a news item reported in “Rajasthan Patrika” dated 11th March 2014, and after reading the news published in the Patrika, decided to file this petition in public interest.
According to the petitioner, the insistence on the part of the hospitals for passport is without any legal backing and leads to harassment. Many a times, due to non-availability of passport, the patient may have to lose his/her life as the hospital refuses to perform surgery of kidney transplant.
According to the petitioner, the hospitals and institutions are not insisting for passport from people residing within the State of Gujarat, but the same is being insisted upon only from the patient residing outside the State of Gujarat.
It is not the case of the petitioner that the hospital authorities should not insist on any identification proof. However, at the same time, should not insist only on passport whereas the other valid ID proofs like PAN card, Voter ID, Driving Licence, Marriage Certificate, School Leaving Certificate, Certificate of Talati, Certificate of Executive Magistrate are available. In such circumstances referred to above, the petitioner has prayed for the following reliefs :
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(A) This Honourable Court may be pleased to admit this petition;
(B) This Honourable Court may be pleased to issue writ of mandamus or other appropriate writ by quashing and setting aside notification of respondent no.1 for insisting passport for the purpose of proving blood relation for the patients who are coming from outside the Gujarat.
(C) Pending petition the respondents may please be directed to produce notifications/guidelines regarding the Kidney transplant who are coming from outside the State;
(D) This Honourable Court may be please to pass such other and further relief, as the nature and circumstances of the present case may require.”
Stance of the respondent No.2 - IKDRC :
The IKDRC is an institute established in the year 1981 with the primary objective of treating kidney diseases and also to operate, promote, run and manage institutions engaged in service, education and research pertaining to the field of Nephrology, Urology, Transplantation, Hematology, Autoimmune and Genetic disorders. The respondent is an autonomous body.
The Government of India has enacted the Transplantation of Human Organs Act, 1994, which provides for regulation of removal, storage and transplantation of human organs for the therapeutic purposes and for the prevention of commercial dealings in human organs and for matters connected therewith or incidental thereto.
In order to prevent the commercial dealings of human organs, more particularly, kidney, wherein fake identity of donors is created and for which they are paid by the recipients, and since it also endangers the life of the potential donor, the Parliament thought fit to enact the law referred to above.
With a view to serve the object of the enactment, the respondent has laid down stringent procedures for the transplantation of the human organ. In the affidavit-in-reply filed on behalf of the
