JUDGMENT :

“The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition”.

It has been 75 years now that these words were adopted in the Constitution of the World Health Organization and this court, through these petitions, is called upon to decide the issue of applicability of ‘Right to Health’ in terms of the petitioners.

Special Civil Application No.14029 of 2022

1. The prayer in the petition is as under:

“6(a). This Hon’ble Court be pleased to issue a writ of mandamus or in the nature of mandamus or any other writ that it may deem fit, quashing and setting aside the communication dated 01.06.2022 and 04.06.2022 and direct the respondent authority no.5 to issue the domicile certificate upon the petitioner and enter her name in the domicile quota for transplantation of kidney as organ recipient and consider her case from the date of her application.

2. Facts in brief indicate that the petitioner is a Canadian citizen and an overseas citizen of India. Her place of birth is Mumbai and she has completed her higher education in Mumbai. The petitioner got married to one Prashant Ajmera and shifted her base from Mumbai to Ahmedabad on 27.04.1993. She resided with her husband in Ahmedabad till 1995. Thereafter, she moved to Montreal, Canada, where she resided with her husband and three children till the year 2009.

3. The petitioner moved back to Ahmedabad in the year 2009 with her husband. At the time of moving back from Canada, relevant fee as prescribed by the Indian Custom Authority under the head ‘transfer of residence’ was paid. The petitioner received her Overseas Citizen of India card (hereinafter referred to as ‘OCI’ for short) on 23.10.2009. Accordingly she also received her driving license and Aadhar card.

4. The petitioner was diagnosed with less than benchmark functioning of the kidney and is therefore required to undergo dialysis twice a week. She has been recommended a kidney transplant. To undergo such transplant, the petitioner has to be registered as a recipient under the Transplantation of Human Organs and Tissues Act, 1994 and the Regulations thereunder (hereinafter referred to as ‘the Act and the Rules’ for short).

5. The State Government also notified guidelines to monitor as well as regulate the process of donation and transportation of human organs vide notification dated 14.03.2019. The petitioner when approached a registered hospital under the Act for registration i.e. Shallby Hospital, Ahmedabad, her request was turned down orally on the ground that she would require a domicile certificate. A request made for such certificate has been rejected by the impugned communication by the police authorities on the ground that the petitioner is a Canadian national, not an Indian citizen and therefore not entitled to a domicile certificate.

Special Civil Application No.18056 of 2022

6. The prayer in the petition reads as under:

“6(a). This Hon’ble Court be pleased to issue a writ of mandamus or in the nature of mandamus or any other writ that it may deem fit, holding and declaring paragraph 13.1 and 13.10(C) of Gujarat Deceased Donor Organ and Tissue Transplantation Guideline (G-DOT GUIDELINES) as arbitrary, illega