Madras High Court
P.Nagaraj Prabhu vs The Director Of Medical Education on 17 May, 2013
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 17.05.2013 CORAM THE HONOURABLE MR. JUSTICE M.VENUGOPAL W.P. No.14328/2013 P.Nagaraj Prabhu .. Petitioner Versus 1. The Director of Medical Education, 162, EVR Periyar Salai, Kilpauk, Chennai 600 010. 2. The Secretary, Government of Tamil Nadu, Department of Health, Fort St. George, Chennai 600 009. 3. Global Hospital and Health City, No.439, Cheran Nagar, Sholinganallur, Medavakkam Road, Perumbakkam, Chennai 600 100. .. Respondents Prayer: Writ petition filed under Article 226 of the Constitution of India praying for a writ of mandamus, directing the respondents 1 to 3 herein to grant necessary approval forthwith as per the approval granted on 01.04.2013 by the Chairman, State Authorization Committee, Government of Goa, for the liver transplantation to be performed for donation of part of liver by Shri. Shailendra N.Prabhu, the petitioner's son to the petitioner by the 3rd respondent hospital. For Petitioner : Mr.V.Prakash, Senior Counsel for Mr.R.Gokulraj For RR 1 and 2 : Mr.R.Rajeswaran, Spl.GP For R3 : Mr.N.Senthilnathan ORDER
The petitioner has filed the present writ petition praying for a writ of mandamus seeking direction to the respondents 1 to 3 to grant necessary approval for the liver transplantation to be performed for donation of part of liver by Shri. Shailendra N.Prabhu, the petitioner's son to the petitioner by the 3rd respondent hospital, as per the approval granted on 01.04.2013 by the Chairman, State Authorization Committee, Government of Goa.
2.The facts narrated by the petitioner in the affidavit filed in support of this writ petition are as follows:-
[a]The petitioner is suffering from liver disease due to the tumor and the said disease is to be cured only by way of transplantation. It is stated that the son of the petitioner, Shailendra N.Prabhu, has come forward to donate a part of his liver to save the life of his father and the said transplantation is to be performed by a team of surgeons from the 3rd respondent Hospital.
[b]Added further, it is stated that the petitioner, his wife Smt.Shaila N.Prabhu and his son, Shailendra N.Prabhu, have submitted the respective affidavits in the required formats to the 1st respondent through the 3rd respondent / Hospital. It is also stated by the petitioner that the petitioner's family has complied with the requisite conditions as stipulated in the Transplantation of Human Organs and Tissues Act, 1994 [hereinafter referred to as "the Act"] and that the donor is the near relative of the petitioner as stipulated in section 2[i] of the Act and the same has been approved and coordinated by the transplant coordinator.
[c]Continuing further, it is the stand of the petitioner that the 1st respondent /Director of Medical Education, has sent a rejection letter dated 18.04.2013 to the petitioner cancelling the transplant proposal on the ground that the affidavits filed by the petitioner are not in the native language, viz., Konkani and that the relationship certificate is required to be produced. That apart, the State Authorization Committee, for organ transplantation for the Government of Goa, has also given the "No Objection Certificate" and the DNA report dated 23.03.2013 also shows that the donor is the son of the petitioner.
[d]According to the Petitioner, the proposed transplantation of liver is in accordance with the provisions of the Act and that a copy of the rejection letter dated 18.04.2013 passed by the 1st respondent was not given to the petitioner herein on the ground of confidentiality. It is stated that the reasons assigned in the said rejection letter are against the provisions of the Act. Hence, the petitioner has focused the instant writ petition before this Court.
3.Mr.V.Prakash, learned senior counsel for the petitioner brings it to the notice of this Court that the petitioner has furnished the relationship certificate issued by the Additional Secretary, [Health], Government of Goa dated 08.04.2013 and it is very much available with the 1st respondent / Director of Medical Education, Chennai. Also, the learned senior counsel for the petitioner brings it to the notice of this Court that in the State of Goa, no relationship certificate is furnished by the Tahsildar/Deputy Tahsildar/Revenue Authority. Only the Government official, viz., the Health Secretary, issues the relationship certificate. As such, the requirements of the 1st respondent through his communication in Letter Dis.No.26546/ME II [2]/2013 dated Nil.04.2013 requiring the petitioner to furnish the relationship certificate between patient, donor and donor spouse/dependent from the Revenue Authority, do not arise on any score. Even in regard to the requirement of the original affidavits in the mother tongue of the patient, donor, donor dependent duly signed in the presence of the Magistrate, along with two witness signature and address should be affixed in all the affidavits, the learned senior counsel for the petitioner brings it to the notice of this Court that there is no script for Konkani and as such, the petitioner is handicapped in providing the original affidavits in mother tongue. Further, the learned senior counsel for the petitioner submits that the petitioner has already furnished all the affidavits in proper formats.
4.It is contended on behalf of the Petitioner that in the proceedings of the Chairman, Authorization Committee of Goa, dated 01.04.2013, the Committee concerned has examined all relevant documents including the verification of relationship by genetic testing Form No.3 and therefore, the petitioner has completed all the requisite formalities and fulfilled the same. In this regard, learned senior counsel for the petitioner invites the attention of this Court to the ingredients of Rule 6-F (a) to (j) of the Transplantation of Human Organs Rules, 1995, in and by which, the Authorisation Committee has been required to focus its attention on the matters/aspects referred to therein.
5.Further, the learned senior counsel for the petitioner seeks in aid of the decision of this Court in W.P.No.18657/2009 between DR.M.ANOOP and THE STATE OF TAMILNADU BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH, FORT ST GEORGE, CHENNAI-9, TAMILNADU AND ANOTHER, wherein, in paragraphs 8 to 10, it is observed as follows:-
"8.On the facts and circumstances of the present case, the Authorization Committee of the State of Kerala, after giving an opportunity to both the donor and the recipient and having satisfied that the donor and her spouse have understood about the consequences of such operation, has issued a No Objection Certificate. When that being the case, in the admitted situation that the hospital at Coimbatore wherein the operation is to be conducted is under the Act, I am of the considered view, has rightly held by the Andhra Pradesh High Court, that the 2nd respondent cannot be expected to do the same exercise once again and that will amount duplication of work, which cannot be the intention of the law enacted.
9.Inasmuch as there is no doubt about the No Objection Certificate issued by the Authorization Committee, Kottayam, which is categoric terms and it is also stated that the Authorization Committee, Kottayam, only after examining the donor, along with her spouse has given such certificate, there is no reason to suspect about the said certificate and therefore, simply because the donor and her spouse were not aware of the language spoken in the State of Tamilnadu and could not explained about the consequences, cannot be a reason to brush aside the No Objection Certificate dated 23.07.2009 given by the Authorization Committee, Kottayam, as per the Statutory function in the guise of the 2nd respondent performing its function once again.
10.Inasmuch as under section 10 of the Act, it is not in dispute that the Hospital at Coimbatore is registered under the Act, I am of the considered view that the reason assigned by the 2nd respondent in rejecting the claim of the petitioner for the purpose of performing kidney transplantation operation is not sustainable."
and consequently, set aside the impugned order of the 2nd respondent therein and allowed the writ petition resultantly.
6.Moreover, this Court has also passed an order on 18.12.2012 in WP.No.29840/2012 between MRS.REKHA AGRAWAL and UNION OF INDIA, REP. BY ITS SECRETARY, MINISTRY OF HEALTH AND FAMILY WELFARE, NIRMAL BHAVAN, NEW DELHI 110108 AND OTHERS, wherein the impugned order of the 3rd respondent therein dated 19.10.2012 has been set aside because of the reason that the same is contrary to the scheme of the Act and Rules and further, the petitioner therein has been directed to produce the relevant documents to establish the marriage between her and the donor/husband and other documents relating to two children born to them etc.
7.At this juncture, this Court makes a useful and significant reference to the following decisions for fuller and better appreciation of the subject matter in issue in proper perspective and also to secure the ends of justice:
(a)In the decision BALBIR SINGH Vs. The AUTHORIZATION COMMITTEE AND OTHERS, AIR 2004 Delhi 413, it is observed and held that 'A Committee be constituted to review the provisions of Transplantation of Human Organs and Tissues Act, 1994 (42 of 1994) and Rules in the light of observations made in the Judgment'. In effect, by virtue of the said Judgment, a Committee has been constituted to examine the lacunae in implementation of the said Act. The recommendations of the said committee were examined along with the recommendations of the Rajiv Gandhi Foundation. The draft guiding principles of the organ transplantation prepared by the World Health Organisation were also taken into consideration and after wide consultation, the Administrative Ministry proposes to amend the said Act. The proposed amendments, inter alia, are as under:
"(i) presently the said Act regulates transplantation of the human organs, it has been proposed that the said Act also regulate the transplantation of tissues of the human body. Therefore, it is proposed to amend the long title, short title of the Act and also to insert appropriate "tissues" in the definition clause and consequential amendments in other sections of the Act;
(ii)to expand the definition of "near relative" in order to include the grandfather, grandson and granddaughter as near relative;
(iii)amendment of Section 3 with a view to make mandatory for the Intensive Care Unit or Treating Medical Staff to request relatives of brain dead patients for organ donation and to provide for the enucleating of corneas by a trained technician. Further to enable a surgeon or a physician and an anaesthetist or intensive to be included in the medical board in the event of non-availability of a neurosurgeon or neurologist for certificate or brain death;
(iv)amendment of Section 9 to regulate the transplantation of organs for foreign nationals, to prevent the exploitation of minors, to provide for Swap Donations of organs, to empower the Central Government to prescribe the composition of Authorisation Committees and to empower State Governments and Union territories to set up their own Authorisation Committees;
(v)insertion of a new Section 13-A to constitute the Advisory Committees to advise the Appropriate Authorities;
(vi)insertion of new Section 13-B to empower the Appropriate Authorities to summon persons, seek production of documents, issue search warrants, etc.;
(vii)insertion of new Section 13-C to establish National Human Organs and Tissues Removal and Storage Network;
(viii)to provide for the development and maintenance of a national registry of the recipient of human organs transplants;
(ix)amendment of Section 14 to appoint a "transplant coordinator" in all hospitals registered for organ retrieval and transplantation, and to provide for the registration of non-government organisations working in the field of organ retrieval, banking and transplantation;
(x)amendment to Sections 18, 19 and 20 to enhance the penalties provided under the Act; and
(xi)consequential amendment in Section 24 in respect of the rule making power of the Central Government."
(b)In the decision B.L.NAGARAJ AND OTHERS Vs. Dr.KANTHA AND OTHERS, AIR 1996 KARNATAKA 82 at page 83, it is observed as follows:
8.The Committee would ascertain from the 2nd petitioner whether she would be donating the kidney out of "affection and attachment". The donor's relationship with the recipient, period of acquaintance and the degree of association, reciprocity of feelings, gratitude and other human bonds are perhaps some of the factors which would sustain "affection and attachment" between two individuals. The Committee has to ensure that the human organ does not become an article of commerce. The main thrust of the Act is against commercial dealings in human organs.
(c)In the decision KULDEEP SINGH AND ANOTHER Vs. STATE OF T.N. AND OTHERS, (2005) 11 SUPREME COURT CASES 122 at page 128, in paragraphs 15 & 16, it is, among other things, observed and laid down as follows:
15.We find that in certain States administrative officials are nominated as members of the Authorisation Committee. That appears to be the proper course as the Authorisation Committee has to decide both on the medical angle regarding need for transplantation, and the existence or otherwise of the essential ingredients to be established under Sub- Section (3) of Section 9 of the Act. Presence of an administrative official in the Authorisation Committee would be helpful in deciding the issues more effectively.
16.Though we are told that the present Authorisation Committee of the State of Punjab consists of only doctors, in view of urgency we direct the existing Committee to examine the matter without awaiting the induction of an administrative official. We request the Committee to examine the application of the petitioners on the basis of materials to be placed by the petitioners and to decide whether the applicants have established the requirements necessary for according approval. If it accords approval, the same may be transmitted to the State of Tamil Nadu immediately so that the Authorisation Committee of the said State can also consider on the therapeutic angles. In case approval is not accorded, it shall be open to the applicants to avail such remedies as are available in law. We make it clear that we have not expressed any opinion on the issue as to whether approval is to be accorded or not as the same is to be considered by the Authorisation Committee.
(d)In the decision MISS. SONIA AJIT VAYKLIP AND ANOTHER Vs. HOSPITAL COMMITTEE, LILAVATHI HOSPITAL & RESEARCH CENTRE AND OTHERS, AIR 2012 BOMBAY 93, it is held as follows:
In cases where donor and recipient are near relatives as defined by the Act (1994), there need be no enquiry by Authorization Committee to ascertain whether there is any commercial element. Such inquiry is therefore, not at all required to be held in the case of near relatives. Approval of Authorization Committee would not be necessary in such cases.
(e)In the decision VINAY KUMAR Vs. STATE OF HARYANANA AND ANOTHER, AIR 2012 PUNJAB AND HARYANA 160 at page 162 & 163 in paragraphs 9 to 13, it is observed and held as follows:
9.In support of his contentions, learned counsel for the petitioner has referred to a judgment of High Court of Delhi attached to the petition as Annexure P-6 which has been passed on the basis of observations made by the Hon'ble Supreme Court in case titled as Kuldeep Singh v. State of Tamil Nadu reported as (2005) 11 SCC 122 : (AIR 2005 SC 2106). The Hon'ble Supreme Court held in this case that the object of the Act was to prevent commercial dealings in human organs. The Authorization Committee is required to satisfy the real purpose of the donor authorizing removal of his organ and further Authorization Committee of the State to which donor or donee belongs to ascertain the true intent and purpose and to lift the veil, if any, of projected affection or attachment and that burden is on the applicant to establish the real intent by placing the relevant material for consideration of the Authorization Committee. It was further observed that it was always open for the Authorization Committee to seek information from the Authorization Committees of the other State.
10.As a matter of fact, the above extracted Rule 6-B was inserted in the statute after the decision rendered by the Hob'ble Supreme Court in Kuldeep Singh's case (AIR 2005 SC 2106) (Supra) making it mandatory to seek approval or NOC from the State of domicile but making approval mandatory from the place of intended transplant.
11.In the instant case as well the donor and the donee belong to different States and therefore, the observations of Kuldeep Singh's case (AIR 2005 SC 2106) (supra) are attracted to the facts of the case as also the provisions of Rule 6B which prescribes a mandatory approval from the State of intended transplant. Insofar as the other State is concerned, the incumbent seek for approval or NOC from the State of domicile which in the instant case happens to be the State of Haryana.
12.The judgment of Delhi High Court is on the lines of the reasoning given in Kuldeep Singh's case (AIR 2005 SC 2106) (supra).
13.I am inclined to accept the aforesaid view as it is logical to presume that Rule 6 B would require a no objection from the State of domicile and necessarily an approval from the State where intended transplant is to take place, for the simple reason that a mandate has been cast upon the Authorization Committee of the place of intended transplant and such an interpretation is also likely to erase the possibility of a conflict between the two Authorization Committees and it is for this reason that a flexibility has been given to the domicile State as against the State of intended transplant.
(f)In the decision VIJAYAKUMAR HARRIRAM SAHU AND ANOTHER Vs. STATE OF MAHARASHTRA & OTHERS, AIR 2013 Bombay 17 at page 18, it is observed and held as follows:
The Act balances the autonomy of the individual as a decision maker with the societal interest in protecting the concerns of the family. Both the Act and the Rules, seek to bring about a healthy balance between the need for transplantation of human organs and tissues in order to save lives on the one hand and the public interest in ensuring that this does not become a facade for exploitation or for trafficking in human organs and tissues. The views of the next of kin are entitled to deference but this is not to suggest that the Authorization Committee, once a disagreement is expressed, would have no power to take an independent decision based on the best interest of the donor and the donee. Ultimately, the Authorization Committee has to take a judicious decision after considering all the facts and circumstances. The Authorization Committee in instant case has erred in coming to the conclusion that a bond of love and affection could not be established. The Authorzation Committee seems to have formed that view on the basis that: (i) the elder brother and the minor daughters of the donor had opposed the donation of a kidney by the donor to the donee; and (ii) the donee has his own relatives who have not come forward to donate a kidney. The existence of the objections of the relatives of the donor and the fact that other relatives of the donee have not come forward with a proposal for transplantation, would not displace a case of affection and attachment between the donor and the donee. Authorization committee directed to consider the matter afresh.
8.Insofar as the present case is concerned, on a careful examination of entire gamut of the subject matter in issue, in a threadbare fashion, this Court unhesitatingly is of the cocksure opinion that in the instant case, the Relationship Certificate dated 08.05.2013 issued by the Additional Secretary [Health], Government of Goa, Secretariat, Porvorium, Goa, is well within the purview of the Transplantation of Human Organs and Tissues Act, 1994 and the rules made thereunder. As a logical corollary, there is no need or any necessity that has arisen in the present case to refuse the approval by the 1st Respondent. As a matter of fact, the refusal of approval by the 1st Respondent through order dated 18.04.2013 is not a tenable and valid one, in the eye of law. As such, this Court is perforced to set aside the said order dated 18.04.2013 passed by the 1st Respondent to prevent an aberration of justice and to promote substantial cause of justice. Viewed in that perspective, the Writ Petition succeeds.
9.Resultantly, the Writ Petition is allowed, leaving the parties to bear their own costs. Respondents 1 to 3 are hereby directed to accord necessary approval forthwith in regard to the liver transplantation to be performed for donation of part of liver by Shri. Shailendra N.Prabhu, the petitioner's son to the petitioner by the 3rd respondent hospital, in terms of approval granted on 01.04.2013 by the Chairman, State Authorization Committee, Government of Goa, within a period of two weeks from the date of receipt of a copy of this order.
ap/sgl To
1. The Director of Medical Education, 162, EVR Periyar Salai, Kilpauk, Chennai 600 010.
2. The Secretary, Government of Tamil Nadu, Department of Health, Fort St. George, Chennai 600 009.
3. Global Hospital and Health City, No.439, Cheran Nagar, Sholinganallur, Medavakkam Road, Perumbakkam, Chennai 600 100