Important point
Authorisation Committees, constituted u/s 9 of Transplantation of Human Organs Act of the State where donor and recipient were resident will have to decide the application for approval and not the Committee of State where recipient was undergoing treatment.

Headnote:Transplantation of Human Organs Act, 1994 r/w Transplantation of Human Organs Rules, 1995—Section 9—Regulation of removal, storage and transplantation of human organs for therapeutic purposes and for prevention of commercial dealings in human organs—Constitution of Authorisation Committee—Committee on enquiry could grant applicants i.e. donor and recipient approval for removal and transplantation of concerned human organ—In case donor was not a near relative, he must establish that removal of organ was being authorised for transplantation to recipient because of affection or attachment or for any special reasons to donation of his organ—Object of the Act is to prevent commercial dealings in human organs—Object is to find out true intent behind donor’s willingness to donate the organ—Authorisation Committee of the State where applicants resided was required to decide the application and not the Committee of the State where recipient was undergoing treatment.
Held : Where the donor is not “near relative” as defined under the Act, the situation is covered by Sub-Section (3) of Section 9. As the Form I in terms of Rule 3 itself shows the same has to be filed in both the cases where the donor is a near relative and where he is not, so far as the recipient is concerned. In case the donor is not a near relative the requirement is that he must establish that removal of the organ was being authorized for transplantation into the body of the recipient because of affection or attachment or for any special reasons to make donation of his organ. As the purpose of enactment of the Statute itself shows, there cannot be any commercial element involved in the donation. The object of the Statute is crystal clear that it intends to prevent commercial dealings in human organs. The Authorisation Committee is, therefore, required to satisfy that the real purpose of the donor authorizing removal of the organ is by reason of affection or attachment towards the recipient or for any other special reason. Such special reasons can by no stretch of imagination encompass commercial elements. Above being the intent, the inevitable conclusion is that the Authorisation Committees of the State to which the donor and the donee belong have to take the exercise to find out whether approval is to be accorded. Such Committee shall be in a better position to ascertain the true intent and the purpose for the authorisation to remove the organ and whether any commercial element is involved or not. They would be in a better position to lift the veil of projected affection or attachment and the so called special reasons and focus on the true intent. The burden is on the applicants to establish the real intent by placing relevant materials for consideration of the Authorisation Committee. Whether there exists any affection or attachment or special reason is within the special knowledge of the applicants, and a heavy burden lies on them to establish it. Several relevant factors like relationship if any (need not be near relationship for which different considerations have been provided for), period of acquaintance, degree of association, reciprocity of feelings, gratitude and similar human factors and bonds can throw light on the issue. It is always open to the Authorisation Committee considering the application to seek information/materials from Authorisation Committees of other States/State Governments as the case may be for effective decision in the matter. In case any State is not covered by the operation of the Act or the Rules, the operative executive instructions/Government orders will hold the field. As the object is to find out the true intent behind the donor’s willingness to donate the organ, it would not be in line with the legislative intent to require the Authorisation Committee of the State where the recipient is undergoing medical treatment to decide the issue whether approval is to be accorded. Form I in terms requires the applicants to indicate the residential details. This indication is required to prima facie determine as to which is the appropriate Authorisation Committee. In the instant case, therefore, it was the Authorisation Committee of the State of Punjab which is required to examine the claim of the petitioners. (Para 12)
Since the object of the Statute is to rule out commercial dealings, it would be desirable to require the donor and recipient to give details of their financial positions and vocations. It would be appropriate for the Legislature to accordingly amend the Rules and the Form I, so that requirement for disclosing incomes and vocations for some previous financial years (say 3 years) gets statutorily incorporated. This would help the Authorisation Committees to assess whether any commercial dealing is involved or not. Until Legislative steps are taken, all Authorisation Committees shall, in terms of this judgment require the applicants to furnish their income particulars for the previous three financial years and the vocations. The petitioners are directed to furnish the aforesaid details within ten days from to-day before the Authorisation Committee. (Para 14)

Judgment

Arijit Pasayat, J.—In this petition under Article 32 of the Constitution of India, 1950 (in short the ‘Constitution’) some questions of seminal importance have been raised. Factual position as indicated by the petitioners needs to be noted in a nutshell as the issues are pristinely legal.

2. Petitioner No.1 is undergoing treatment at Devaki Hospital Ltd. at Chennai for renal disorder. The hospital in question is duly approved by the authorities under the Transplantation of Human Organs Act, 1994 (in short the ‘Act’) read with Transplantation of Human Organs Rules, 1995 (in short the ‘Rules’) and is permitted to undertake Kidney transplantation. Doctors treating petitioner No.1 were of the view that both the kidneys of petitioner No.1 have failed to function. Petitioner No.2 wanted to donate one kidney to petitioner No.1 to save his life. The gesture was actuated by love and affection and there is no other consideration involved.

3. An application was made under the Act before respondent No.2- the Director of Medical Education, Govt. of Tamil Nadu, Chennai for issuance of ‘No Objection Certificate’ (in short the ‘NOC’). The respondent No.2 by letter dated 10.3.2005 indicated to the petitioners that the NOC is to be issued by the Authorisation Committee of the Punjab State (respondent No.3) as the Authorization Committee of the State of Tamil Nadu cannot issue such a certificate. It was indicated that since both the petitioners belong to the State of Punjab, only the Authorisation Committee of the said State had competence to issue the NOC. When request was made to respondent No.3 through respondent No.4 i.e. the Director, Research and Medical Education, Punjab, it was indicated to the petitioners by said respondents that it is only the Authorisation Committee of the State of Tamil Nadu which can issue the certificate, as the transplantation was intended to be done in the said State.

4. The petitioners have made a grievance that because of the ticklish issue as to which State has the competence to issue the NOC, the life of petitioner No.1 is in peril.

5. We had issued notice to both the State Governments who are represented by their learned counsel. The State of Tamil Nadu re-iterated its stand that only the Authorisation Committee of the State of Punjab was competent to issue the NOC as both petitioners belong to that State. The contrary stand is taken by the State of Punjab on the ground that since the transplantation is to be done in the State of Tamil Nadu, only the Authorisation Committee of the said State was competent to issue the NOC.

6. In order to appreciate the rival submissions, purpose for enactment of the Act and a few provisions of the Act need to be noted.

7. The Act was promulgated to provide for the regulation of removal, storage and transplantation of human organs for therapeutic purposes and for the prevention of commercial dealings in human organs and for matters connected therewith or incidental thereto.

8. The Act has come into force w.e.f. 4.2.1995 in certain States and in all Union Territories. It is provided in Section 1 of the Act that it shall apply to such other States which adopt the Act by resolution passed in that behalf under clause (1) of Article 252 of the Constitution. It is further submitted at the Bar that executive instructions and/or government orders in line with the object of the Act have been issued in such States. We need not go into that question in the present dispute as both the States of Tamil Nadu and Punjab are covered by the provisions of the Act and the Rules.

9. Section 9 deals with “Restriction on removal and transplantation or human organs”. The same reads as follows:

“Restrictions on removal and transplantation of human organs—

(1) Save as otherwise provided in sub-section (3), no human organ 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.

(2) Where any donor authorizes the remov

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2005 Supreme(SC) 540

Important pointAuthorisation Committees, constituted u/s 9 of Transplantation of Human Organs Act of the State where donor and recipient were resident will have to decide the application for approval and not the Committee of State where recipient was undergoing treatment.

Important point
Authorisation Committees, constituted u/s 9 of Transplantation of Human Organs Act of the State where donor and recipient were resident will have to decide the application for approval and not the Committee of State where recipient was undergoing treatment.