Human Rights violations by public servant attracts the provisions of Human Rights Act, 1994.

Headnote:Protection of Human Rights Act (X of 1994), Secs.2(m) and 12(a) and 18 - States Human Rights Commission Tamil Nadu (Procedure) Regulations (1997), Clause 9-Constitution of India-Article 226-Show cause notice issued by Human Rights commission to petitioner for violation of the provisions of human rights-Writ court does not interfere in the matter of issuance of show cause notice in ordinary course-Moreover, private hospitals and members of authorisation committee constituted under the provisions of Transplantation of Human Organs Act are not public servants-Writ petition dismissed.

Judgment :-

Markandey Katju, CJ.

This writ petition has been filed praying for the a Writ of Certiorari to quash the impugned order of the first respondent/State Human Rights Commission, Tamil Nadu dated 28.07.2004

2. Heard Mr.Dinesh Dwivedi, learned senior counsel for the petitioner; Mr.N.R.Chandran, learned Advocate General for the State; Mr.G.Masilamani, learned senior counsel for the State Human Rights Commission and Mr.K.Govi Ganesan for the third respondent in the writ petition.

3. The petitioner claims to be a reputed hospital in Chennai. After the enactment of the Transplantation of Human Organs Act, 1994 (hereinafter referred to as ‘the Transplantation Act’), the petitioner applied for registration under Section 10 of the Transplantation Act to the appropriate authority viz., the Director of Medical and Rural Health Services, Tamil Nadu for conducting transplantation of human organs. By order dated 01.09.1996, the registration certificate was issued to the petitioner in Registration No.43670/E.7/4/95 valid for the period from 01.09.1996 to 31.08.2001 authorising the petitioner to allow kidney transplantation in its hospital. The registration was renewed from 01.09.2001 to 31.08.2006, and the same is valid and is in force.

4. It is alleged in paragraph 4 of the petition that one Dr.S.Vijayaraghavan, is a reputed nephrologist. He has been conducting kidney transplantation operations in various hospitals including the petitioner hospital. He wanted to conduct kidney transplantation for one S.Seralathan by removing one kidney from M.R.Balasubramani, the third respondent, in the petitioner hospital. Dr.S.Vijayaraghavan is not an employee of the petitioner hospital, but he is merely utilizing the facilities available in the petitioner hospital for conducting kidney transplantation surgery.

5. In paragraph 5 of the petition it is alleged that an order of approval being Ref.No.75141/H&D1/2001 dated 04.12.2001 together with an affidavit of M.R.Balasubramani (Donor) signed by M.R.Balasubramani on 13.12.2001 and his wife Gomathi and attested by XXI Metropolitan Magistrate, Egmore, Chennai – 8, and the affidavit of S.Seralathan (Recipient) dated 13.12.2001 and attested by XXI Metropolitan Magistrate, Egmore, Chennai were produced by S.Seralathan through Dr.Vijayaraghavan, the nephrologist. Only on receipt of the above mentioned documents the petitioner in the usual course allowed the kidney transplantation for S.Seralathan in the petitioner hospital which took place on 18.12.2001.

6. In paragraph 6 of the affidavit it is stated that except permitting surgery to be conducted in its theatre and the post operative stay, the petitioner did not have any role in the transplantation procedure, which was conducted by Dr.S.Vijayaraghavan.

7. In the affidavit dated 13.12.2001, which was attested by XXI Metropolitan Magistrate, Egmore, Chennai, and signed by the Donor as well as his wife, it was stated: -

“I further declare and state that the donation of kidney by me is a voluntary one and there is no monetary consideration involved in it.”

8. It appears, however, that subsequently the third respondent/M.R.Balasubramani gave a complaint to the first respondent/State Human Rights Commission on 26.08.2002 against Dr.S.Vijayaraghavan who conducted the transplantation to the effect that a sum of Rs.1,50,000/- was agreed to be paid to the donor for donating one kidney, but only a sum of Rs.45,000/- was paid at the time of the surgery, and the balance amount of Rs.1,05,000/- has not yet been paid. Hence M.R.Balasubramani approached the State Human Rights Commission for issuance of a direction for recovery of Rs.1,05,000/- alleged to have been agreed by Dr.S.Vijayaraghavan to be paid for the kidney.

9. The aforesaid complaint of Balasubramani to the State Human Rights Commission states: -

“ From

Balasubramani

13/20, Iyya Street,

Royapettah,

Chennai – 14.

Honourable Mr.Member

State Human Rights Commission,

Royapettah,

Chennai – 14.

Sir,

I have two grown up girls.