ORDER :

[PRAYER: Writ petition filed under Article 226 of the Constitution of India for a Writ of Mandamus, directing the respondents herein to issue No Objection Certificate, considering the petitioner's pathetic case and grant approval for kidney transplantation on priority basis and save his life.]

1. The petitioner herein has approached this Court for issuance of writ of mandamus to the respondents to issue an NOC to enable him undergo renal transplantation and to grant approval for the same on a priority basis. The facts giving rise to this petition are as under :

(a) The petitioner, a doctor by profession, was diagnosed with chronic kidney disease (CKD) in June, 2022 and was put on dialysis. It has been advised by a nephrologist to undergo a kidney transplant at the earliest. His attempts to have his wife and child as donors failed. Attempts made to find a donor from his relatives also failed on account of medical impediments. The petitioner contends that one well-wisher named Mrs. Ramayee offered to donate a kidney, out of “love and affection.”

(b) Between June, 2022 and October, 2022, the petitioner approached several multi-speciality hospitals in Tamil Nadu, but these hospitals did not entertain the idea of a non-relative as a donor. It is in this circumstances, the petitioner approached Lakeshore hospital at Cochin in Kerala. The doctors there, on cross matching the various parameters required, found that Ramayee's kidney is suitable for transplantation. The documentation process too was completed by May, 2023, except for a NOC under Sec.9(4) of the Transplantation of Human Organs and Tissues Act, 1994.

(c) It appears that a proposal was sent to the 1st respondent for its approval and NOC. The 1st respondent is stated to have sent a communication to the Lakeshore Hospital that an NOC is not necessary. It appears that the hospital authorities sent this communication to the Authorization Committee in the State of Kerala who, however, reiterated the requirement of a NOC before the surgery. Ping-ponged that the petitioner is, he has approached this court, partly frustrated and partly with hope, for the relief sought.

2. Heard Mr. S. Haja Mohideen Gisthi for petitioner, and Mr. C. Kathiravan, learned Special Government Pleader for respondents.

3. This writ petition presents a spectre of what this Court may term it as bureaucratic reluctance familiar in our system that germinates out of administrative apprehensions. A doctor, who may have helped saving many lives, now finds himself in a state of helplessness to save his own life. The hospitals in Tamil Nadu appears to have pinned themselves to their committed reluctance to entertain a non-relative for an organ donor, when the Act does not insist that an organ donor should be a relative. This attitude is worrisome, as it holds the potential to undermine the objectives behind the Act and to defeat its purpose. Having regard to the importance of the issue, this Court thought it fit to examine it threadbare since clarity on the point is a desideratum.

4. The Transplantation of Human Organs and Tissues Act, 1994 was enacted in response to the demand from various national bodies, medical and social experts in the backdrop of infiltration of several rackets and unethical practices in dealing with human organs, particularly kidneys. As public health is a State subject under Entry 6 of List II of Schedule VII of the Constitution, Parliament had no power to enact a comprehensive law on the subject for the country. In 1994, the States of Maharashtra, Himachal Pradesh and Goa passed a resolution under Article 252 (1) of the Constitution authorizing Parliament for making a law on transplantation of human organs. In response, Parliament enacted the Transplantation of Human Organs Act, 1994 (henceforth would be referred to as the Act) which has since been rechristened the Transplantation of Human Organs and Tissues Act, 1994 (vide Act 16 of 2011). The State of Tamil Nadu passed the requisite res