Point of Law : Transplantation of organ - Police report is to be analysed along with other criteria mentioned in the Act, 1994 and the Rules, 2014, and if the competent authority decides to reject the application, a speaking order is necessary.

JUDGMENT :

P.V. KUNHIKRISHNAN, J.

1. The petitioner is aggrieved by Ext.P4 order, by which an application for the organ donation, submitted as per the Transplantation of Human Organs and Tissues Act, 1994 (for short ‘the Act, 1994’) and the Transplantation of Human Organs and Tissues Rules, 2014 (for short ‘the Rules, 2014’) is rejected. Mr.Safir T.V., S/o. Mohammedunni is a chronic kidney patient. According to the petitioner, she and her husband had a close relationship with Mr.Safir for the past several years. Hence she decided to donate her kidney to Mr.Safir. The petitioner and the recipient Mr.Safir, submitted Ext.P1 joint application in Form-3 giving consent for donating the kidney. Ext.P2 is Form-11 application. Earlier, the petitioner approached this Court, and this Court, as per Ext.P3 judgment, directed the authority concerned to consider the application and pass appropriate orders. Thereafter, Ext.P4 is issued rejecting the application. Aggrieved by the same, this writ petition is filed.

2. Heard the learned counsel for the petitioner and the learned Government Pleader.

3. The learned counsel for the petitioner submitted that Ext.P4 is an order without adverting to the facts of the case. It is also contended that it is not a speaking order. The counsel submitted that the Authorisation Committee relied on the report of the Assistant Police Commissioner without considering the other criteria as per the Act and Rules. The counsel also takes me through Section 9 of the Act, 1994 and Rule 7 of the Rules, 2014. The counsel submitted that a detailed procedure is to be followed while considering an application as per the Act, 1994 and the Rules, 2014. The same is not followed.

4. The learned Government Pleader, on the other hand, submitted that it is a clear case, where there is commercial transaction and that is why the police report is accepted by the 2nd respondent. The Government Pleader submitted that this Court may not entertain this writ petition because the police, after collecting evidence, submitted the report and the competent authority accepted the same and rightly rejected the application.

5. This Court considered the contention of the petitioner and the learned Government Pleader. Specific procedures are prescribed as per the Act 1994 and Rule 2014 for considering an application for organ transplantation. The authorization committee constituted under Section 2(c) of the Act 1994 has to consider such application as per the mandates in the Act 1994 and the Rules 2014. It will be better to extract Section 9 of the Act and Rule 7(3) of the Rules 2014 hereunder:

Section 9 of the Act, 1994:

9. Restrictions on removal and transplantation of [human organs or tissues or both]:

(1) Save as otherwise provided in sub-section (3), no human organ or tissue or both removed from the body of a donor before his death shall be transplanted into a recipient unless the donor is a near relative of the recipient.

(1A) Where the donor or the recipient being near relative is a foreign national, prior approval of the Authorisation Committee shall be required before removing or transplanting human organ or tissue or both:

Provided that the Authorisation Committee shall not approve such removal or transplantation if the recipient is a foreign national and the donor is an Indian national unless they are near relatives.

(1B) No human organs or tissues or both shall be removed from the body of a minor before his death for the purpose of transplantation except in the manner as may be prescribed.

(1C) No human organs or tissues or both shall be removed from the body of a mentally challenge person before his death for the purpose of transplantation.

Explanation - For the purpose of this sub-section:

(i) the expression "mentally challenged person" includes a person with mental illness or mental retardation, as the case may be;

(ii) the expression "mental illness" includes dementia, schizophrenia and such other mental condition that makes a person intellectuall