Kerala High Court
Shri. Franklin James vs State Of Kerala on 14 October, 2025
2025:KER:77335
WP(C) NO. 28471 OF 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
TUESDAY, THE 14TH DAY OF OCTOBER 2025 / 22ND ASWINA, 1947
WP(C) NO. 28471 OF 2025
PETITIONERS:
1 SHRI. FRANKLIN JAMES
AGED 75 YEARS
S/O P.V JAMES, FLAT NO. 30/1027, CHERUKOTHU VEEDU,
VRINDAVAN APARTMENT 803, VYTTILA P.O., ERNAKULAM
(PROSPECTIVE RECIPIENT), PIN - 682019
2 SAJINI U.K
AGED 45 YEARS
W/O SHERY K.V, KOPPAL QUARTERS, CHATTANCHAL,
THEKKIL P.O., KASARAGOD DISTRICT (PROSPECTIVE
DONOR), PIN - 671541
BY ADV SHRI.FAIZEL K.
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PRINCIPAL SECRETARY HEALTH & FAMILY
WELFARE DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 KERALA STATE ORGAN AND TISSUE TRANSPLANT
ORGANIZATION (K-SOTTO)
REPRESENTED BY ITS EXECUTIVE DIRECTOR, THYCAUD,
THIRUVANANTHAPURAM, PIN - 695014
3 DISTRICT LEVEL AUTHORIZATION COMMITTEE
GOVERNMENT MEDICAL COLLEGE, ERNAKULAM, PIN -
682011
BY ADVS.
GOVERNMENT PLEADER
SRI.AJIT JOY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 14.10.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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WP(C) NO. 28471 OF 2025
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SHOBA ANNAMMA EAPEN, J.
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W.P(C).No 28471 OF 2025
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Dated this the 14th day of October, 2025
JUDGMENT
The first petitioner is a person of Indian origin, presently holding US citizenship and an Overseas Citizen of India, suffering from end-stage renal disease and undergoing treatment at the Lakeshore Hospital, Ernakulam. The second petitioner, an Indian citizen, is the proposed donor.
2. When the second petitioner came to know about the disease of the first petitioner, she expressed her readiness to donate her kidney. Since the petitioners are not close relatives, they approached the third respondent- the District Level Authorisation Committee with necessary application and documents seeking approval for transplantation. But, the application was rejected, by Ext.P3 order on the ground that the donor and recipient are unrelated and the recipient is a foreign national. Aggrieved by the above rejection, they filed an appeal before the State Level Technical Committee and the same was also dismissed, by Ext.P4 order. Aggrieved by the same, the petitioners have approached this court with the above writ petition.
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3. I have heard Sri.Faizel.E, the learned counsel for the petitioners, Sri.Ajit Joy, the learned standing counsel for the second respondent and Smt.K.B.Sony, the learned Government Pleader.
4. Learned counsel for the petitioners submits that the first petitioner, a U.S.Citizen who holds Overseas Citizen of India status, travels to India frequently. is a frequent traveller to India. Records indicate, as shown in Ext.P16, that he visited India in 2023 and 2024. According to him, it was only in July 2024, that he came to know that he was having kidney related issues. On 03.08.2024, he received treatment for the first time, at Lakeshore Hospital and Research Centre, Kochi due to complaints of reduced platelet count. Following this, it was diagnosed that he was having kidney disease. As directed by this Court on 05.08.2025, the petitioners produced the treatment records of the first petitioner along with a memo dated 01.08.2025 issued from the Lakeshore Hospital wherein it is stated that the first petitioner was under follow-up treatment from August 2024 for systemic hypertension, type II diabetes mellitus, renal calculus disease and chronic kidney disease on conservative management. The learned counsel for the petitioners further submitted that during the first petitioner's earlier visits to India, he did not have any health issues and it was only in July 2025:KER:77335 WP(C) NO. 28471 OF 2025 :-4-:
2024 that he was diagnosed with kidney disease. Due to his illness, he is currently unfit to travel back to the U.S as confirmed by the doctor who has been treating him. It was also submitted that his right to life as enshrined under Article 21 of the Constitution of India, may be protected, considering that prolonged sitting during travel could have adverse effects on his health and continuous travel to the US would pose significant risks to his well being. It is also submitted that he has the right to life under Article 21 of the Constitution of India and he seeks for a direction from this court to the authorities concerned to reconsider his application, in a manner that prioritizes his well being and potential risks associated with travel.
5. On examining the documents produced, it is evident that he was diagnosed with renal failure in July 2024. The records reveal that he was a frequent traveller to India between 2022 and 2024. The District Level Authorisation Committee as per Ext.P3 order has rejected the application stating as follows:-
"........As per the Act, Indian donors are prohibited from donating organs to foreign recipients unless they are near relatives. In this case, the recipient is a U.S. citizen holding an Overseas Citizen of India (OCI) card. Although the recipient is of Indian origin and had migrated to the US, he is legally considered a foreign national under the transplantation regulations."
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The State Level Technical Committee, as per Ext.P4 rejected their application stating as follows:-
"......As per Rule 20(b) of THOT Rules, 2014, Indian donors are prohibited from donating organs to foreign recipients unless they are near relatives. In this case, the recipient is a U.S. citizen holding an Overseas Citizen of India (OCI) card and can be considered as a foreign national. Since the donor is not a near relative of the recipient, the Ext.P15 appeal submitted by Shri.Franklin james and Smt.Sajini U.K. is rejected and the judgment dated 04.04.2025 of the Hon'ble High Court in W.P(C) No.13706/2025 is complied with accordingly."
In Ext.P6 certificate issued from the Lakeshore Hospital dated 21.07.2025, it was opined by the Doctor, who treated the petitioner as follows:-
"...........He has progressive worsening of renal functions and has uremic symptoms and will require renal replacement therapy in the near future. Given the patient's medical condition, long haul air travel such as from Cochin to United States poses a serious risk due to the prolonged immobility and reduced cabin pressure, lower oxygen level at high altitude and lack of access to immediate medical care or dialysis facility. There was also heightened risk of worsening pulmonary congestion, hypoxia, severe breathlessness, cardiac strain and potential respiratory failure during the flight. In view of the above, I would advise Mr.Franklin James to desist from air travel until his renal function is optimized with regular dialysis and medications........."
Considering Ext.P6, this Court on 07.08.2025 directed the first petitioner to appear before the the Medical Board, Government Medical College Hospital, Kalamassery and the Medical Board was 2025:KER:77335 WP(C) NO. 28471 OF 2025 :-6-:
directed to assess the medical condition of the patient and to determine whether it is safe for him to travel back to the United States without risking his life and to submit a report in that regard. Pursuant to the order passed by this Court, the Medical Board was constituted and report dated 12.08.2025 was filed stating as follows:-
"The Medical Board examined the patient, Mr.Franklin James on 11.08.2025, 12 noon and reviewed reports from Lakeshore Hospital, where he is undergoing treatment.
We have come to the conclusion that he has evidence of Type 2 Diabetes Mellitus, systemic Hypertension, Chronic Kidney Disease Stage V (eGFR - 6ml/minute), Anemia, Gastrointestinal bleed (upper GI Endoscopy showing mallory weiss tear, Gastric Antral Vascular Ectasia; Colonoscopy showing Melenic stools, hemorrhoids) awaiting capsule endoscopy/ Enteroscopy. USG Abdomen showing coarse echotexture of liver with prominent caudate lobe and subtle irregular surface, Grade I prostatomegaly, Cholelithiasis.
In view of severe renal failure (eGFR-6ml/min) we would advise to optimize renal function with regular dialysis and medications and not fit for travel at present and needs hospitalization.
Since the patient is having upper GI Bleed with ultrasound showing coarse live echotexture with irregular surface, patient needs expert opinion from Gastroenterologist regarding further evaluation of GI Bleed."
6. The Court directed the Superintendent of Medical College to appear online since the report was absent regarding the petitioner's fitness to travel. During the online appearance on 18.08.2025, the Superintendent submitted that the petitioner was 2025:KER:77335 WP(C) NO. 28471 OF 2025 :-7-:
having chronic liver disease with hypertension and was not fit for transplantation. As a result, the matter was adjourned to another date. Again on 15.09.2025, the petitioners filed I.A.No.1/2025 along with additional documents to show that the first petitioner is fit for transplantation. Thereafter, the first petitioner was referred to the Medical Board of Medical College Hospital, Ernakulam and to report whether the first petitioner is fit for transplantation and whether he is fit to travel back to the United States. Pursuant to the said order, the Medical Board was constituted by the Superintendent of Medical College Hospital and a report dated 20.09.2025 was filed wherein it was opined as follows:-
"Conclusion We have assessed him to be at high risk for travel related complications, particularly pulmonary edema. For any travel, especially international travel to US. We strongly recommend a thorough evaluation and a good session of Hemodialysis prior to departure to minimize risks and to get clearance from his treating cardiologist and Gastroenterologist. After reviewing his medical reports and fitness certificate from the hospital, he is currently undergoing treatment (Lakeshore Hospital and research centre, Kochi) and discussion in the medical board at GMC, Ernakulam, we have come to the conclusion that he is fit to undergo renal transplantation, provided all associated risks are thoroughly explained and understood."
The Medical Board in its report dated 20.09.2025 has concluded that they have assessed him to be at high risk for travel related 2025:KER:77335 WP(C) NO. 28471 OF 2025 :-8-:
complications, particularly pulmonary edema and the Medical Board has also concluded that he is fit to undergo renal transplantation.
7. Learned counsel for the petitioners also submitted that as per Sale Deed No.1053/1/2025 dated 21.05.2025 of the SRO, Maradu the petitioner has purchased the property admeasuring 2.91 ares in Re.Sy.No.423/1-2-3 in Re-Sy.Block No.13 (old Sy.No.1025/1) in Maradu Village in Kanayannur Taluk, together with the old house situated thereon bearing Door No.20/227 (old No.13/139) of Maradu Municipality, a copy of which was handed over to me.
8. Rule 20(b) of the Transplantation of Human Organs and Tissues Rules,2014 (for short 'the THOT Rules, 2014') reads as follows:-
"20. Procedure in case of foreigners.--When the proposed donor or the recipient are foreigners;
(a) Xxxx xxxx xxxx
(b) the Authorisation Committee shall examine the cases of all Indian donors consenting to donate organs to a foreign national (who is a near relative) including a foreign national of Indian origin,with greater caution and such cases should be considered rarely on case to case basis:
Provided that the Indian living donors wanting to donate to a foreigner other than near relative shall not be considered."
It is an admitted fact that the first petitioner is a person of Indian origin, presently holding US citizenship and an Overseas Citizen of 2025:KER:77335 WP(C) NO. 28471 OF 2025 :-9-:
India. Now he is the owner of a property in Kerala. Right to life under Article 21 of the Constitution of India also means the right to live with dignity, free from exploitation. The Apex Court in Railway Board v. Chandrima Das [2000 KHC 120] has held as follows:-
" 33..................The Fundamental Rights under the Constitution are almost in consonance with the Rights contained in the UniversalDeclaration of Human Rights as also the Declaration and the Covenants of Civil and Political rights and the Covenants of Economic, Social and Cultural Rights, to whichIndia is a party having ratified them, as set out by this Court in Kubic Darusz v. Union of India and Others JT 1990 (1) SC 38 : 1990 (1) SCC 568 : AIR 1990 SC
605. That being so, since "Life" is also recognised as a basic human right in the Universal Declaration of Human Rights, 1948, it has to have the same meaning and interpretation as has been placed on that word by this Court in its various decisions relating to Art.21 of the Constitution. The meaning of the word "life" cannot be narrowed down.
According to the tenor of the language used in Art.21, it will be available not only to every citizen of this country, but also to a "person" who may not be a citizen of the country.
34....................it was held that the term "life" indicates something more than mere animal existence. (See also:
State of Maharashtra v. Chandrabhan Tale, AIR 1983 SC 803 :1983 (3) SCR 337 : 1983 (3) SCC 387). The inhibitions contained in Art.21 against its deprivation extends even to those faculties by which life is enjoyed. In BandhuaMukti Morcha v. Union of India and Others, AIR 1984 SC 802 :
1984 (2) SCR 67 : 1984(3) SCC 161, it was held that the right to life under Art.21 means the right to live with dignity, free from exploitation.............
35.On this principle, even those who are not citizens of this country and come here merely as tourists or in any other capacity will be entitled to the protection of their lives in accordance with the Constitutional provisions. They also have a right to "Life"in this country. Thus, they also have the right to live, so long as they are here, with human dignity. Just as the State is under an obligation to protect the life of every citizen in this country, so also the State is under an obligation to protect the life of the persons who are not citizens."
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Rule 20(b) of the THOT Rules,2014 restricts transfer of human organs to a person who is a Foreign National by a person who is not a relative. The petitioner is a frequent traveller to India and only in 2024, it was detected that he was suffering from renal disease. Due to chronic kidney disease, he could not travel to the US and from July 2024 onwards, he was under treatment in Lakeshore Hospital, Ernakulam. The Medical Board has also opined that the first petitioner can travel back to the US only by risking his life. They have also found that he is now fit for transplantation. The authorities under the Act have not considered the application on merits for the reason that the first petitioner is a Foreign National.
9. In this case, the Authorisation Committee did not get an opportunity to consider the application following the procedures under Rule 7 of the THOT Rules, 2014, the petitioner being a Foreign National. In Chandrima Das (supra), the Apex Court had held that even those who are not citizens of this country and come here merely as tourists or in any other capacity will be entitled to the protection of their lives in accordance with the Constitutional provisions. They also have a right to "Life" in this country. Thus, they also have the right to live, so long as they are here, with human dignity. Just as the State is under an obligation to protect the life of 2025:KER:77335 WP(C) NO. 28471 OF 2025 :-11-:
every citizen in this country, so also the State is under an obligation to protect the life of the persons who are not citizens. The Medical Board of the Medical College Hospital, Ernakulam, after examination has submitted a report stating that he cannot travel back risking his life. In such circumstances, it is the bounden duty of this Court, to protect the life of the petitioner as enshrined under Article 21 of the Constitution of India. I find that since he is residing in Kerala for more than one year and is not in a position to travel back to the US, the authorities concerned are to be directed to consider his application afresh in accordance with law, as if he is an Indian National.
10. Considering the facts and circumstances of the case, I am inclined to dispose of this writ petition with the following directions:-
i. Exts.P3 and P4 orders are set aside.
ii. The District Level Authorisation Committee is directed to consider the applications filed by the petitioners as if the first petitioner is a citizen of India and pass orders after complying with procedures enumerated in the Act and Rules within a period of two weeks from the date of receipt of a certified copy of this judgment.
Iii. The petitioners are directed to produce all relevant and 2025:KER:77335 WP(C) NO. 28471 OF 2025 :-12-:
necessary documents including the report of the Medical Board, Medical College Hospital, Ernakulam, before the authority concerned.
Sd/-
SHOBA ANNAMMA EAPEN JUDGE MBS/ 2025:KER:77335 WP(C) NO. 28471 OF 2025 :-13-:
APPENDIX OF WP(C) 28471/2025 PETITIONER EXHIBITS Exhibit -P1 THE TRUE COPY OF THE AADHAAR CARD NO.
488389134910 OF THE 1ST PETITIONER Exhibit -P2 THE TRUE COPY OF THE AADHAAR CARD NO.773404984823 OF THE 2ND PETITIONER Exhibit -P3 TRUE COPY OF THE ORDER OF THE DLAC ERNAKULAM DATED IN RESPECT OF THE PRAYER OF THE 2ND PETITIONER DT 28.03.2025 Exhibit -P4 TRUE COPY OF THE ORDER OF THE HEALTH AND FAMILY WELFARE (B) DEPARTMENT (G.O. (RT)NO.1370/2025/H&FWD)GOVERNMENT OF KERALA PASSED AN ORDER DATED 20.05.2025 Exhibit -P5 THE TRUE COPY OF THE JUDGEMENT IN WP( C) .NO.19788 /2025 PASSED BY THIS HON'BLE COURT DATED 26.06.2025 Exhibit -P6 THE TRUE COPY OF THE CERTIFICATE DATED 21.07 .2025 ,ISSUED BY THE DOCTOR OF LAKESHORE HOSPITAL REGARDING THE HEATH CONDITION OF THE 1ST PETITIONER TO TRAVEL TO UNITED STATE OF AMERICA Exhibit P7 THE TRUE COPY OF THE FITNESS CERTIFICATE ISSUED DATED 06.09.2025 BY THE DR .ABI EBRAHAM.M (DIRECTOR - NEPHROLOGY & CHIEF OF RENAL TRANSPLANT SERVICE) Exhibit P8 THE TRUE COPY OF THE FITNESS 04.09.2025 BY THE DR.DATSON GEORGE P SENIOR CONSULTANT (DEPARTMENT OF UROLOGY ) Exhibit P9 THE TRUE COPY OF THE FITNESS CERTIFICATE ISSUED DATED 06.09.2025 DR.PRADEEP GEORGE MATHEW (DEPARTMENT OF GASTO MEDICINE) Exhibit P10 THE TRUE COPY OF THE FITNESS CERTIFICATE DATED 04.09.2025 ISSUED BY THE DR.CIBL ISSAC (DEPARTMENT OF CARDIOLOGY) Exhibit P11 THE TRUE COPY OF FITNESS CERTIFICATE DATED 04.09.2025 ISSUED BY THE DR.IDICULA MATHEWS (DEPARTMENT OF ENT) Exhibit P12 THE TRUE COPY OF THE FITNESS CERTIFICATE DATED 04.09.2025 ISSUED BY THE DR.MALLIE ABRAHAM (DEPARTMENT OF ANAESTHESIA) Exhibit P13 THE TRUE COPY OF THE FITNESS CERTIFICATE DATED 04.09.2025 ISSUED BY THE DR.JOJO M 2025:KER:77335 WP(C) NO. 28471 OF 2025 :-14-:
S(DEPARTMENT OF DENTAL) Exhibit P14 THE TRUE COPY OF THE PRE-TRANSPLANT MEDICAL CHEK-UP REPORT ISSUED BY THE LAKESHORE HOSPITAL ERNAKULAM Exhibit P15 TRAVEL DOCUMENTS OF THE PETITIONER Exhibit P16 THE TRUE COPY OF MY NEW PASSPORT OF THE PETITIONER 29.05.2024 Exhibit P17 A COPY OF THE DOCTOR'S ADVICE MEMO DATED 05.03.2024 Exhibit P18 THE TAX RECEIPT ISSUED BY THE AUTHORITIES IN RESPECT OF THE PETITIONER PROPERTY