Refusal of approval for organ transplant based on suspicion of money involvement requires concrete evidence and cannot be solely based on mere suspicion.

RAKESH KUMAR JAIN, J

1. Jaswinder Singh has approached this Court by invoking its extra-ordinary writ jurisdiction under Article 226 of the Constitution of India for the issuance of a writ in the nature of certiorari for quashing orders dated 24.12.2007 (Annexure P13) and dated 27.2.2008 (Annexure P14) passed by the Chairman, Authorisation Committee, respondent No.2 and Secretary, Medical Education and Research, respondent No.1 respectively.

2. In brief, the case of the petitioner is that he had suffered a complete renal failure at the age of 50. He has been advised for the transplantation of the said organ. His mother, aged 77 years, his wife, aged 49 years and son, aged 24 years, could not donate their kidney to him as their blood group did not match with that of the petitioner. However, the petitioner found a willing donor, namely Manjit Singh, aged 35 years, who is known to his family. Manjit Singh gave his consent to be a donor and the Hospital authorities, after matching his blood etc., found him fit to donate his kidney to the petitioner. Dr.Arjinder Singh Bains, MS (PGI ), Chief Transplant Surgeon certified that Jaswinder Singh petitioner is suffering from chronic renal failure and needs kidney transplantation which is being donated by Manjit Singh whose complete work has been done and is found to be fit to donate his kidney.

3. Since the transplantation of human organ is regulated by the Transplantation of Human Organs Act, 1994 (hereinafter referred to as “the Act”) in which Section 3 provides for the authority for removal of human organ and Section 9 for the restriction on removal and transplantation of human organs. Sections 3 and 9 of the Act are being re-produced as under:

“Section 3. Authority for removal of human organs. -(1) Any donor, may, in such manner and subject to such conditions as may be prescribed, authorise the removal, before his death, of any human organ of his body for therapeutic purposes.

(2) If any donor had, in writing and in the presence of two or more witnesses (at least one of whom is a near relative of such person), unequivocally authorised at any time before his death, the removal of any human of his body, after his death, for therapeutic purposes, the person lawfully in possession of the dead body of the donor shall, unless he has any reason to believe that the donor had subsequently revoked the authority aforesaid, grant to a registered medical practitioner all reasonable facilities for the removal for therapeutic purposes, of that human organ from the dead body of the donor.

(3) Where no such authority as is referred to in subsection (2), was made by any person before his death but no objection was also expressed by such person to any of his human organs being used after his death for therapeutic purposes, the person lawfully in possession of the dead body of such person, may, unless he has reason to believe that any near relative of the deceased person has objection to any of the deceased person's human organs being used for therapeutic purposes, authorise the removal of any human organ of the deceased person for its use for therapeutic purposes.

(4) The authority given under sub-section (1) or subsection (2) or, as the case may be, sub-section (3) shall be sufficient warrant for the removal, for therapeutic purposes, of the human organ; but no such removal shall be made by any person other than the registered medical practitioner.

(5) Where any human organ is to be removed from the body of a deceased person, the registered medical practitioner shall satisfy himself, before such removal, by a personal examination of the body from which any human organ is to be removed, that life is extinct in such body or, where it appears to be a case of brain-stem death, that such death has been certified under sub-section (6).

(6) Where any human organ is to be removed from the body of a person in the event of his brain-stem death, no such removal shall be undertaken unless such death is cer