Andhra HC (Pre-Telangana)
Nagendra Mohan Patnaik And Ors. vs The Government Of A.P. Rep. By Its ... on 12 November, 1996
Equivalent citations: 1997(1)ALT504
Author: V. Raja Gopala Reddy
Bench: V. Raja Gopala Reddy
ORDER P.S. Mishra, C.J.
1. Writ Appeals 1272 and 1273 of 1996 were posted for admission and with the agreement of the parties they have been taken up for final hearing along with the batch of Writ Petitions, which have been filed questioning the vires of some of the provisions of the Andhra Pradesh Transplantation of Human Organs Act, 1995 (Act No. 24 of 1995). The Act was preceded by Ordinance called Andhra Pradesh Transplantation of Human Organs Ordinance, 1995. Since the Act has come into force, any reference to the constitutional vires of the provisions of the Ordinance is no longer necessary.
2. Invoking the jurisdiction of this Court under Article 226 of the Constitution of India, the petitioners have alleged that the Act has such provisions which violate Articles 21 and 14 of the Constitution of India and they, for the said reason, are ultra vires to the Constitution of India.
3. Before we take up a brief prospecting into the provisions of the Act for appreciation of the objects of the Act, we may profitably refer to the Central Act No. 42 of 1994 called The Transplantation of Human Organs Act, 1994, which is enacted by the Parliament in pursuance of Clause 1 of Article 252 of the Constitution of India on resolutions having been passed by all the Houses of Legislatures of the States of Goa, Himachal Pradesh and Maharashtra, to provide for regulation of removal, storage and transplantation of human organs for therapeutic purpose and for the prevention of commercial dealings on human organs and for the matters connected therewith or incidental thereto. This Act 42 of 1994 applies in the first instance, to the whole of the States of Goa, Himachal Pradesh and Maharashtra and to all the Union Territories and shall be so applicable to such other State or States, which adopts or adopt the Act by resolution passed in that behalf under Clause 1 of Article 252 of the Constitution of India. The Legislature of the State of Andhra Pradesh, however, has enacted in the Forty Sixth Year of the Republic of India, Act 24 of 1995 for the same purpose as the Central Act 42 of 1994, stating the objects and reasons as follows:
"Keeping in view the considerable advancement in Medical Sciences in recent times and the worldwide practice of transplantation of human organs, the Government of India have enacted the Transplantation of Human Organs Act, 1994. On the same lines, in the State of Andhra Pradesh, Governor has promulgated the Andhra Pradesh Transplantation of Human Organs Ordinance, 1994 (Andhra Pradesh Ordinance 18 of 1994) on the 8th September, 1994. As certain provisions of the Ordinance were under examination, a Bill replacing the said Ordinance could not be introduced in the Legislative Assembly and as a result, the said Ordinance lapsed on the 21st February, 1995.
As it was decided to have a law for the regulation of removal, storage and transplantation of human organs for therapeutic purposes and for prevention of commercial dealings on human organs immediately, Government have decided to promulgate an ordinance for the purpose on the same lines with certain minor modifications. As the Legislative Assembly of the State was not then in session having been prorogued, the Andhra Pradesh Transplantation of Human Organce Ordinance, 1995 was promulgated by the Governor on the 9th March, 1995."
4. The objects thus stated are - (1) for the regulation of removal, storage and transplantation of human organs for therapeutic purpose; (2) for the prevention of commercial dealings on human organs. 'Human organ' is defined Under Section 2(i) of the Act, unless the context otherwise requires, to mean any part of a human body consisting of a structured arrangement of tissues which, if wholly removed, cannot be replicated by the body. The Act thus intends to regulate removal, storage and transplantation of human organs and prevention of commercial dealings on human organs consisting of a structured arrangement of tissues, which on removal will finally be severed and the body cannot replicate it. The salient features of the Act are referrable to the provisions in Chapter-II, which mainly speak of authority for the removal of human organ, which, however, is totally forbidden for commercial dealings and permitted for therapeutic purposes only on authorisation by & donor, who is defined Under Section 2(f), as any person, not less than eighteen years of age, who voluntarily authorises in full consciousness after being explained the full consequences of removing the organ by the Doctor who would be removing the organ. Section 3 of the Act prescribes as follows;
"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, in full consciousness and after being explained the full consequences of removing the organ by the doctor who would be removing the organ in presence of his spouse, if living, and in the presence of daughter of son of sister of brother in the same order and in the presence of mother or father in case of unmarried persons 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 (including the) spouse if living, and in the presence of daughter or son or sister or brother in that order and in the presence of mother or father or sister or brother in the case of un-married persons unequivocally authorised at any time before his death, the removal of any human organ 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 Sub-section (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 Sub-section (2) or, as the case may be, Sub-section (3) shall be sufficient warrant for the removal, for the 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 certified unanimously in such form and in such manner and on satisfaction of such conditions and requirements as may be prescribed, by a Board of medical experts consisting of the following, namely:-
(i) the registered medical practitioner in charge of the hospital in which brain-stem death has occurred;
(ii) an independent registered medical practitioner, being a specialist to be nominated by the registered medical practitioner specified in Clause (i) from the panel of names approved by the Appropriate Authority;
(iii) a neurologist or a neurosurgeon to be nominated by the registered medical practitioner specified in Clause (i), from the panel of names approved by the Appropriate Authority; and
(iv) the registered medical practitioner treating the person whose brain-stem death has occurred.
(7) Notwithstanding anything contained in Sub-section (3), where brain-stem death of any person less than eighteen years of age, occurs and is certified under Sub-section (6), any of the parents of the deceased person may give authority, in such form and in such manner as may be prescribed, for the removal of any human organ from the body of the deceased person."
A donor, as provided under the above Section, can authorise the removal of any organ of his body, which cannot be replicated by the body, in such a manner and subject to such conditions as may be prescribed only in full consciousness and after being explained the full consequences of removing the organ by the doctor who would be removing the organ in the presence of his spouse, if living, and in the presence of daughter or son or sister or brother in the same order and in the presence of mother or father in case of unmarried person and for such removal after his death, in writing and in the presence of two or more witnesses including the spouse, if living, and in the presence of daughter or son or sister or brother in that order and in the presence of mother or father or sister or brother in the case of unmarried person and the latter case, the person lawfully in possession of the dead body of the donor can grant to a registered medical practitioner all reasonable facilities for the removal of the organ from the dead body of the donor, unless he has any reason to believe that the donor had subsequently revoked the authority. Even in the absence of express authority from the donor before his death, the person lawfully in possession of the dead body, unless he has reason to believe that any near relative of the deceased person has objection to any of the organs of the deceased person being used for therapeutic purposes, can authorise the removal of the organ of the deceased person for such use, provided he i.e., the deceased person, had not expressed any objection to any of his organs being used after his death for therapeutic purpose. A donor, however, has to authorise the removal in the presence of his spouse, if living, and in the presence of daughter or son or sister or brother in the same order and in the presence of mother or father in the case of unmarried person. The above Section provides sufficient warrant for the removal of the human organ; but no such removal is permissible except by a registered medical practitioner. Sub-sections (5) and (6) of Section 3 provide for examination of the body of the deceased donor or the body from which organ is sought to be removed including in the case of brain-stem death. Other provisions of the Act speak of authority for removal of human organs in case of unclaimed bodies in hospitals or prisons or from bodies sent for post-mortem examination for medico legal or pathological purposes and Section 4 spells out the cases in which removal of human organs cannot be authorised from the body of a deceased person. Section 9 speaks of restrictions on removal and transplantation of human organs, in these words:
"9. (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 authorises the removal of any of his human organs after his death under Sub-section (2) of Section 3 or any person competent or empowered to give authority for the removal of any human organ from the body of any deceased person authorises such removal, the human organ may be removed and transplanted into the body of any recipient who may be in need of such human organ.
(3) If any donor authorises the removal of any of his human organs before his death under Sub-section (1) of Section 3 for transplantation into the body of such recipient, not being a near relative, as is specified by the donor by reason of affection or attachment towards the recipient or for any other special reasons, suet human organ shall not be removed and transplanted without the prior approval of the Authorisation Committee.
(4) The Government shall constitute by notification, one or more Authorisation Committees consisting of such members as may be nominated by the Government on such terms and conditions as may be specified in the notification for the purposes of this section.
(5) On an application jointly made, in such form and in such manner as may be prescribed, by the donor and the recipient the Authorisation Committee shall after holding an inquiry and after satisfying itself that the applicants have complied with all the requirements of this Act and the rules made thereunder, grant to the applicants approval for the removal and transplantation of the human organ. (6) If, after the inquiry and after giving opportunity to the applicants of being heard, the Authorisation Committee is satisfied that the applicants have not complied with the requirements of this Act and the rules made thereunder, it shall, for reasons to be recorded in writing, reject the application for approval."
Sub-section (2) of the above Section provides that human organs of a deceased person can be removed and transplanted into the body of any recipient in need of such human organ, if the deceased person has authorised, before his death for removal of the organ from his body or any person competent or empowered to give authority for the removal of the organ, has done so. If the removal of the organ from the body of the donor is for the purpose of being transplanted into the body of a near relative and authorisation is made in accordance with Sub-section (1) of Section 3 of the Act, the Organ can be removed by a medical practitioner, who is qualified, as contemplated under the Act. Transplantation is defined Under Section 2(q) of the Act to mean the grafting of any human organ from any living person or deceased person to some other living person for therapeutic purposes; and therapeutic purpose is defined Under Section 2(p) of the Act to mean systematic treatment of any disease or the measures to improve health according to any particular method or modality. Near relative is defined Under Section 2(j) of the Act to mean spouse, son, daughter, father, mother, brother or sister. Thus, in the case of the need for transplantation i.e., grafting of any human organ for therapeutic purposes, to a near relative, a person can donate his such organ, which if wholly removed cannot be replicated by the body, provided authorisation is given as above. Authorisation in such a case can easily be presumed to/have been given by reason of affection or attachment towards the recipient. Sub-section (3) of Section 9 of the Act, however, has contemplated donation of such organ for grafting to other living person for therapeutic purposes by a doctor authorised in this behalf, provided the donor has authorised the removal by reason of affection or attachment or for any other special reasons. In such a case, however, the organ cannot be removed and transplanted without the prior approval of the Authorisation Committee. Sub-section (4) above has contemplated a statutory Authorisation Committee consisting of such members as may be nominated by the Government on such terms and conditions as may be specified in the notification for the said purposes. The Authorisation Committee can act only on an application jointly made in such form and in such manner as may be prescribed under the rules by the donor and the recipient. Before granting approval for the removal and transplantation of the human organ, the Authorisation Committee is required to hold an inquiry and satisfy itself that the applicants i.e., the donor and the recipient, complied with all the requirements of the Act and the rules made thereunder. If, after the inquiry and after giving an opportunity to the applicants of being heard, the Authorisation Committee is satisfied that the applicants have not complied with the requirements of the Act and the rules made thereunder, it would reject the application for approval by recording reasons in writing why it is not satisfied that the applicants have complied with the requirements of the Act and the rules made thereunder.
5. A reference has been made by one of the counsel appearing before us, to Section 11 of the Act, which provides that no donor and no person empowered to give authority for the removal of any human organ, shall authorise the removal of any human organ, for any purpose other than therapeutic purposes, and an attempt has been made to develop an argument that the Act has, by such prohibition, caused serious inroad upon any scientific study of the human organs, even for the purposes of further development of the medical sciences. We do not, however, propose to detain ourselves to deal with this aspect as savings in Section 8 of the Act read with the provisions in Sections 5, 6 and 7 of the Act show clearly that restrictions are intended mainly for the prevention of commercial dealings in human organs and regulations of removal, storage and transplantation of human organs are intended to help grafting of any human organ from any living person or deceased person to some other living person for therapeutic purposes, i.e., for systematic treatment of any disease or the measures to improve health according to any particular method or modality. It is legal under the law as above, for any person to authorise the removal of even such organ of his body, which if wholly removed, cannot be replicated by the body, but that should be voluntarily and authorised in full consciousness of the donor and after being fully acquainted with the full consequences of the removal of the organ. It is difficult to visualize absolute perfection of a human body, but a disfigurement or deficiency of such nature which cannot be replicated by the body, can hardly be acknowledged as a normal human body, which, no one can deny, is a gift of God or of nature and is basic for any person who lives on the land called India i.e., Bharat, which is a socialist democratic Republic. Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. It will be too late for any person to say that the expression 'procedure established by law' does not mean a procedure which is reasonable, fair and just and that life means only survival or animal existence. By now it is well recognised that right to life enshrined in Article 21 includes the right to live with human dignity and includes all such aspects of life which go to make a man's life meaningful, complete and worth living and all such things which make it possible to live. This extends to right to livelihood and right to decent environment. Everything that protects the quality of life is inherent in the guarantee offered by Article 21. There is some attempt before us by some of the learned counsel appearing for the petitioners to suggest that whatever considerations be made, a person must be held to be free to decide about everything about himself and so to decide to donate his organs, which may be vital for him. He or she can always barter or bargain in respect of things including organs which belong to him/her. Such extreme propositions can, however, be logically extended to grant a person the right to end his life. Our country has already passed through that period when the right to suicide was acknowledged as a freedom and Section 309 of the Indian Penal Code was declared ultra vires in the case of P. Rathinam v. Union of India, . Reversing the said judgment, the Supreme Court in the case of Smt. Gian Kaur v. State of Punjab, 1996 (1) ALT (Crl.) 535 (C.B.)(SC)= AIR 1996 SC 946 has upheld the validity of Section 309 of Indian Penal Code and attempt to commit suicide is made a punishable offence. We no longer live in the Puranic age of Shibi and Dadhichi, who cared less for themselves and donated their vital organs to others. Even they did so not for gains or as bargains. They were guided by the great encompassing concern for the world and practised the laudable concern of sacrifice for the cause of good to society. Learned counsel for the petitioners have endeavoured that the recipient's right to live is inroaded, if transplantation for therapeutic purposes is denied by the restrictions upon the donor and authorisation is put under such a straight jacket of conditions like authorisation in the presence of the spouse, if living and in the presence of daughter or son or sister or brother in the same order and in the presence of mother or father in case of unmarried person before his death and the strict requirement of joint application by the donor and the recipient, etc.
6. We have difficulty, however, in accepting any violation of the right of the recipient under Article 21 of the Constitution of India. He is as free to protect his life as the donor is and his right to live, as the Supreme Court has pointed out in Pt. Parmanand Katara v. Union of India , is right to receive medical treatment and medical aid. This may include transplantation for therapeutic purposes of an organ of a living person or deceased person for systematic treatment of any disease or the measures to improve health according to any particular method or modality. This cannot, however, by any stretch of imagination be extended to taking someoneelse's life to save one's own life. The law, as we have seen, has noted as one of its objects the worldwide practice of transplantation of human organs as an advancement in medical sciences, but chosen to protect unsuspecting persons who are lured to part with some organ of their body, which cannot be replicated by the body, by deceit, fraud and even coercion or made to take the sufferings in their body for money or for any other consideration in lieu of money. If the purpose is forgotten and the object is ignored, who knows how many persons would be falling prey to the designs of the dealers in human organs for commercial purposes.
7. It will be pertinent here to emphasise that Article 19(1)(g) or in that matter Articles 301 to 305 of the Constitution do guarantee freedom to all citizens of the country to practise any profession or to carry on any occupation, trade or business, but they have to be understood to guarantee only such freedom which do not have a spirit of reckless propensity for making easy gain at the cost of such vital rights of others, which, society as a whole, would abhor. In State of Bombay v. R.M.D. Chamarbaugwala, when it was argued before the Supreme Court that the word "trade or business or commerce" should be read in their widest amplitude as meaning any activity which is undertaken or carried on with a view to earning profit and contended that there was nothing in those two Articles 19(1)(g) and 301, which would qualify or cut down the meaning of the critical words, the Supreme Court held there is no justification for not excluding from the meaning of those words activities which may be looked upon with disfavour by the State or the Court as injurious to public morality or public interest. The Supreme Court in the said judgment has observed:
"On this argument it will follow that criminal activities undertaken or carried on with a view to earning profit will be protected as fundamental rights until they are restricted by law. Thus there will be a guaranteed right to carry on a business of hiring out goondas to commit assault or even murder, of housebreaking, of selling obscene pictures, of trafficking in women and so on until the law curbs or stops such activities. This appears to be completely unrealistic and incongruous. We have no doubt that there are certain activities which can under no circumstances be regarded as trade or business or commerce although the usual forms and instruments are employed therein. To exclude those activities from the meaning of those words is not to cut down their meaning at all but to say only that they are not within the true meaning of those words. Learned counsel has to concede that there can be no 'trade' or 'business' in crime but submits that this principle should not be extended and that in any event there is no reason to hold that gambling does hot fall within the words of 'trade' or business or 'commerce' as used in the Article under consideration."
8. All subsequent judgments of the Supreme Court, which have moved around the combined effect of Article 19(1)(g) and Articles 301 to 305, have approved of the above and in fact in subsequent judgments such as Nashirwar v. State of Madhya Pradesh, the above is reiterated and in Krishnan Kumar v. J & K State, the expressions used are more than adequate for the view that as a matter of public policy right to trade under Article 19(1)(g) has to be given a limited meaning to exclude all such trade or business which had the tendency of encouraging a spirit of reckless propensity for making easy gain.
9. In the case in hand thus we can say with confidence - whether the law intended to prohibit dealing in human organs or not - no one could or can deal in human organs as a matter of right. The prohibition thus is intended to discourage any attempt of using human organs for commercial purposes and whether someone is a dealer in human organs or not, he or she even as an individual cannot sell the organ.
10. Once it is held that right to die is not included in the right to live under Article 21 of the Constitution of India, since the right to die is inherently inconsistent with the right to live, as pointed out by the Supreme Court in Smt. Gian Kaur's case (2 supra), it is proper to suggest that a person's decision to part with any such organ of his body, which, if wholly removed, cannot be replicated by the body, is opposed to the very essence of the right to live with human dignity, which means the existence of such a right up to the end of natural life. The aim of the law as in Sections 3 and 9 of the Act aforementioned, thus is to regulate removal of such vital organ of the body, which is medically not approved unless health conditions etc., of the concerned donor are fully examined, and in case in full consciousness and after knowing full consequences of the removal of the organ, he decides to donate his organ, his decision is respected, provided it is uninfluenced by considerations other than affection or attachment towards the recipient or for any other special reason. Expressions 'affection or attachment' need no elaboration as they are well understood expressions in English language to signify a special concern of a person for another of oneness, kindly feelings, good will and such other mental attributes or dispositions which create some sort of bond between the two. The expression 'any other special reason', however, cannot be read to include considerations which destroy or erode the voluntary character of authorisation by the donor and if there is a reason for the donor to decide to donate any vital organ which is not strictly falling within the ambit of the expressions 'affection' or 'attachment', it cannot be so detached or (sic. for) remote a reason that one may doubt the genuineness of the authorisation for the removal of the organ. A close examination of the provisions Under Sections 3 and 9 of the Act leaves no manner of doubt that all possibilities of any kind of fraud, undue influence or consideration which would render the authorisation a commercial transaction are intended to be eliminated before the authorisation is accepted as one Voluntarily made by the donor. Appointment of a Committee to authorise such donation, which is not for the benefit of a near relative of the donor as contemplated in Sub-section (4) of Section 9 of the Act, is meant for such a scrutiny of the donation, which would rule out the possibility of the donor having been influenced by considerations other than affection or attachment towards the recipient or for any other special reasons. Provision for application by the recipient and donor jointly in the manner as prescribed under the rules under Sub-section (5) of Section 9 is intended for inquiry into the doubts,, by the Authorisation Committee to satisfy itself that the applicants have complied with all the requirements of the Act and the rules made thereunder. These provisions of the Act, thus by recognising the need of transplantation of human organ have accepted the imperative of the treatment of diseases, or the measures to improve the health of the recipient on the one hand, and introduced sufficient safeguards for the donor who, by parting with his/her organ, would deprive himself/herself of something vital to life and live with the handicap for the rest of the life on the other hand. There is, thus no element of discrimination, much less any hostile discrimination or any form of arbitrariness, which would amount to denial of the equal protection of law and equality before law. The provisions, as we have already noticed, thus, neither violate Article 21 of the Constitution of India nor violate Article 14 thereof.
11. It will be only reiterating the obvious that the duty assigned to the Authorisation Committee is to decide upon the application, jointly made by the recipient and the donor, either to grant approval for the removal and transplantation of human organ or to reject the same for reasons to be recorded in writing, as severe consequences would follow on either side i.e., in case of approval of the removal and transplantation of the human organ on authorisation by the donor for any reason other than affection or attachment towards the recipient or for any other special reasons, it would be unjust to the donor and in case such conditions are existing and the application is rejected, the recipient is denied what legally is needed for therapeutic purposes. The Authorisation Committee is required to hold an inquiry to satisfy itself that the applicants have complied with all the requirements of the Act and the rules made thereunder and also in case it decides to reject the application, to record the reasons in writing for the same. These leave no manner of doubt that Authorisation Committee is a quasi-judicial authority and it is thus required to follow such procedures which are reasonable and in accordance with the principles of natural justice. Our attention has been drawn to the absence of any mechanism or agency, which Authorisation Committee may use for ascertaining, if necessary by investigation, the genuineness of the application before it and it is urged that in the absence of guidelines, how the Authorisation Committee shall determine in the course of the inquiry, that the applicants have complied with all the requirements of the Act and the rules made thereunder or not; the Authorisation Committee is not in a position to do anything except to know from the recipient and the donor about their complying with all the requirements of the Act and the rules made thereunder. We, however, do not see any reason to hold that Authorisation Committee is left without any guidelines in deciding whether to approve the removal and transplantation of the organ or to reject the application. There are quite a few express guidelines in the Act itself and there are other intrinsic guidelines which supplement the express guidelines for the inquiry by the Authorisation Committee. In natural sequence of events the donor, who authorises removal of the organ, will always be in a position to explain that he had decided to authorise the removal of the organ in full consciousness and after being explained the full consequences of the removal of organ by the doctor and that authorisation was decided in the presence of his/her spouse, if living and in the presence of daughter or son or sister or brother in the same order and in the presence of mother or father in case of unmarried persons and that he had authorised the removal of the organ for its transplantation to the recipient for reasons of affection or attachment towards him/her or for any other special reasons. He/she shall always be required to show that the authorisation for the removal of organ was not induced by any cause other than affection or attachment towards the recipient or for any other special reasons. It will be possible, when the donor and the recipient are examined, in course of the inquiry, by the Authorisation Committee, to notice the presence of suspicious circumstances and it would only be reasonable to hold that unless all suspicious circumstances are removed authorisation may not be found to have been done voluntarily and only because the donor was guided by reason of affection or attachment towards the recipient or for any other special reasons. Neither the donor nor the recipient is denied the right of being heard and if their application is rejected for reasons to be recorded in writing, they are informed why their application has not been approved. The order of the Authorisation Committee under Sub-section (6) of Section 9 is made appealable Under Section 17 of the Act. The applicants i.e., the donor and the recipient, thus are given the opportunity to question the correctness of the decision of the Authorisation Committee and it needs no reiteration that the appellate authority shall have the power to convert the rejection of the application into approval, if it finds that the applicants have complied with all the requirements of the Act and the rules made thereunder. In any event all such orders shall be subject to judicial review and an application, subject to the limitations under which the power is exercised by the Court under Article 226 of the Constitution of India, shall be liable (sic. shall lie).
12. The above, in our view, would dispose of the question of vires of the provisions in Sections 3, 9 and 11 of the Act. There are, however, some half hearted contentions, which require mention, only to be rejected. Entry 6 of the State List speaks of the competence of the Legislature of the State to make laws as regards public health and sanitation, hospitals and dispensaries. It cannot be said that the issue as to the removal and transplantation of a human organ, as defined under the Act, is not covered by the expression public health and in such parts in which the law has chosen to impose restrictions upon the hospitals and dispensaries, not covered by the expression hospitals and dispensaries under the State item. It is, thus, not possible to accept any challenge to the legislative competence or the argument that the field is occupied by the Central Act i.e. The Transplantation of Human Organs Act, 1994 (Act 42 of 1994). We have already noticed that the Central Act No. 42 of 1994 is made by the Parliament by consent of the legislatures of the States of Goa, Himachal Pradesh and Maharashtra. The Central Act is extended to Union Territories as the Parliament is competent to make laws in respect of Union Territories. The Central Act can be extended to other States only if they adopt by a resolution, as contemplated under Clause (1) of Article 252 of the Constitution of India. The State of Andhra Pradesh has not chosen to do so and instead framed its own law for the purpose and for the objects and reasons as stated earlier.
13. There is some contention before us, however, that since the Authorisation Committee has to perform a quasi-judicial function, without there being any person having such equipment which someone who is required to act judicially possesses, its constitution suffers the basic infirmity of being constituted of persons who do not possess any legal knowledge. This submission, in our view, is based on a clear misapprehension of the legal position that only such authorities which are created in lieu of Court of law are required to have persons who possess qualifications, if not equal, at least nearer to the qualifications for the judicial officers. It has been pointed out many a time by the Courts that matters which require administrative determination should better be left for such persons to decide, who are acquainted with the subject concerned. True, it is not shown anywhere under the Act or the rules made thereunder as to who qualify to be the members of the Authorisation Committee. Since the power to appoint the Authorisation Committee is given to the highest Executive of the State i.e., the Government of the State, it can be safely presumed that it shall not bring into Committee persons who do not have even the basic comprehension of the role which they are required to play. It is good always that in matters of determination of issues like the Authorisation Committee is expected to decide, Courts of law are not involved at the first instance as Courts too will depend upon the expert evidence as to the need of a transplant and a doctor as contemplated under the Act is best suited for deciding whether removal could be approved or not. Courts' competence in this regard shall not be assured and clear.
14. In order, however, to create confidence that the Authorisation Committee shall take necessary precautions which a quasi-judicial authority is required to take, one can trust the Government of the State, while constituting the Authorisation Committee, to include one such person who would guide the Committee to inquire into such necessary aspects of the matter with regard to the application before it. Before we part with the judgment, we are persuaded to state that, since the Authorisation Committee is one which is also required to consider whether removal of the organ is arranged on the basis of some sort of commercial transaction or for reasons which do not satisfy the conditions of authorisation as contemplated under the Act and the rules made thereunder, it (Authorisation Committee) shall have such powers as are ancillary or residuary to the powers to hold inquiry and to seek for the said purpose, assistance from any employee/servant of the Government of the State/any other agency employed by the Government of the State.
15. We have not dilated into the facts which have prompted the Legislature of the State to come forward with Act 24 of 1995, except the preamble and the statement of objects and the reasons. Existence of large scale illegal removal, storage of human organs and commercialisation affecting the poorer sections of the society, are well known causes to restrict the removal and transplantation of the human organs by every medical practitioner/persons, so that no one benefits himself/herself at the misery of the donors. No one to-day can deny that when transplantation of human organ is necessary to save a life and the medical science has recognised it as a method, it should receive approval as a method well-recognised and well-practised. Medical practitioners, however, are people who cannot behave like mercenaries and see only the interest of the recipient and not that of the donor. Can the society allow any hospital or clinic/a doctor or a physician to go astray and remove human organs to help it thrive as a business and emergence of middle-men to benefit at the cost of donors, who for the reasons of poverty sometime agree to sell their organs? There would have been no need for the Legislature of the State to intervene, had concerned people shown respect to values of life. Medical practitioners are people who enjoy high social status in the society and are treated with respect by all concerned, for all beings and more so human beings need medicare. We have reasons to state that regulation of hospitals, as envisaged under the Act and the rules made thereunder, emphasise that they have to perform their duties by caring for the recipient as well as the donor and that they do not fall a prey to the designs of those who want to profit themselves at the cost of others.
16. We are informed, however, that pending the writ petitions, in applications showing urgency for transplantation of the organs to the recipients, orders have been passed in Writ Petition Nos. 24465 and 24757 of 1995; 12470/1996; 17346, 17540, 17562, 17616, 18199, 18329, 18493, 18594, 18614, 18834, 19065, 19081, 20000, 20067, 20173, 21462, 21501, 21572, 22550 and 22689 of 1994; 261, 489, 654, 674, 924, 925, 1484, 1618, 4031, 4241, 4442, 6023, 6029, 6411, 6412, 6413, 6414, 6926, 7574, 7575, 7576, 23093, 26011 of 1995; 50, 3458, 4461, 5505, 5531, 5536, 9812 and 9813 of 1996, and the objects for which the petitions have been filed have been achieved by interim orders of the Court. The same, however, has not happened in the petitions from which Writ Appeals Nos. 1272 and 1273 of 1996 have arisen. Pending, however, the disposal of the appeal, the appellant in Writ Appeal No. 1272/1996 has since expired.
17. Time, we are fully convinced, shall always be the essence in treatment of ailments in which transplant of organ is needed for therapeutic purposes. No one in such cases can afford to make delay. Authorisation Committee or the appellate authority for that reason cannot embark on a lengthy inquiry spread over days and months. We are of the clear view and good reasons to believe that the Authorisation Committee and the appellate authority shall act with the quickest dispatch and deliver their orders within such period of time, which the hospital, Doctor or medical practitioner would indicate for the purpose of removal of the organ and transplantation.
18. Since Writ Petitions Nos. 24465 and 24757 of 1995; 12470/1996; 17346, 17540, 17562, 17616, 18199, 18329, 18493, 18595, 18614, 18834, 19065, 19081, 20000, 20067, 20173, 21462, 21501, 21572, 22550 and 22689 of 1994; 261, 489, 654, 674, 924, 925, 1484, 1618, 4031, 4241, 4442, 6023/6029, 6411, 6412, 6413, 6414, 6926, 7574, 7575, 7576, 23093, 25011 of 1995; 50, 3458, 4461, 5505, 5531, 5536, 9812 and 9813 of 1996, have become infructuous, they are accordingly dismissed. Writ Appeal No. 1272 of 1996 and Writ Petition No. 21777 of 1996 have also become infructuous. They are accordingly dismissed.
19. We have looked into the order impugned in Writ Petition No. 20122 of 1996, from which Writ Appeal No. 1273 of 1996 has arisen, which has been produced before us. Since we have indicated the procedure, which the Authorisation Committee is expected to follow, in our judgment above, we do not propose to mention the grounds on which such applications can be rejected. We are, however, satisfied that if so advised, the petitioner-appellant jointly with the donor can make a fresh application for the approval of the authorisation for removal and transplantation, by the Authorisation Committee. In case any such application is filed, the same shall be considered strictly in accordance with law.
20. With the observation, as above, the Writ Appeal No. 1273 of 1996 and the Writ Petition No. 20122 of 1996 are dismissed. No order as to costs.