No criminal kidney, liver or heart; Cannot prohibit organ donation based on criminal antecedents: Kerala High Court

The Kerala High Court recently held that criminal antecedents of a person cannot be criteria when it comes to organ donation and the Transplantation of Human Organs and Tissues Act, 1994 do not make any such distinction against persons with criminal record (Radhakrishna Pillai v. District Level Authorization Committee for transplantation of Human Organs, Ernakulam)..The Court, therefore, quashed an order of the District Level Authorization Committee for Transplantation of Human Organs, Ernakulam (Committee) which did not permit a person to donate his kidney to a needy patient because he had been involved in multiple criminal offences.Single judge Justice PV Kunhikrishnan strongly rebuked the decision of the Committee directing it to expeditiously reconsider the plea to allow donation.."There is no organ in the human body like a criminal kidney or criminal liver or criminal heart! There is no difference between the organ of a person without a criminal antecedent and the organ of a person who has no criminal antecedents. Human blood is passing through all of us," the Court said. .There is no organ in the human body like a criminal kidney or criminal liver or criminal heart.Justice PV Kunhikrishnan .The Court found that there are no provisions in Transplantation of Human Organs and Tissues Act, 1994 (1994 Act) and The Transplantation of Human Organs and Tissues Rules, 2014 (2014 Rules) to support the decision of the committee which is primarily duty bound only to ensure that there are no commercial dealings in human organs.."A man is on a death bed and his friend is coming forward to donate his organ. The competent authority rejecting the application observing that the donor is involved in criminal cases when there is no such prohibition as per the Act 1994 and Rule 2014. The Authorisation Committee can not go beyond their jurisdiction and reject the application," the Court held..Pertinently, the Court also observed that decisions of the Committee should motivate more citizens to donate organs especially since India has one of the lowest organ donation rates in the world.."The decisions of the Authorisation Committee should inspire people to donate their organs to needy people. Awareness is necessary to increase the organ donation ratio in India. Some statistics says that, organ donation in India is very poor around 0.3/million population, as compared to some western countries where it is as high as 36/million. It also shows that in the US, it is around 26/million population. So the motivation and inspiration for organ donation are necessary from all sides," the judgment said. .Motivation and inspiration for organ donation are necessary from all sidesKerala High Court.The judgment was delivered on a plea filed by a man facing serious renal failure whose family members are not suitable donors. He approached the Court, through Advocate Mohammed Iqbal, to quash the decision of the Authorisation Committee that refused to allow his friend who had volunteered to donate a kidney.The Committee had denied permission to the friend only for the reason that he had a criminal record. .It was contended that there are no provisions in the 1994 Act or 2014 Rules prohibiting those with criminal antecedents from donating and that the only embargo in Rules was that the donor should not be a drug addict.Moreover, it was submitted that while the petitioner had submitted the application for permitting donation in March, the Authorisation Committee made its final decision only in July and that too after filing a contempt of court case before the Court..The Government Pleader conceded to the contentions of the petitioner in this regard but submitted that there is an alternative remedy to the petitioners against the decision of the committee whereby they can file an appeal under Section 17 of the Act 1994.However, the Court refused to accept this contention in the instant case as the petitioner is terminally ill and had already approached the High Court with his grievances..The Court found merit in the petitioner's arguments and set aside the decision of the Committee as it opined that the intention of the legislature while enacting the Act 1994 is only to prevent commercial dealing in human organs."If a person dies, he will be buried and he will rot. If a person is burned he will become ash but if the organs of his body are donated, he will give life and happiness to many. Therefore, according to me, the finding to the effect that, since the donor is involved in multiple criminal cases, he can not donate his kidney is liable to be set aside," it said. .It also relied on the judgement in Shoukath Ali Pullikuyil vs. the District Level Authorization Committee in which a Division Bench of the Kerala High Court Court observed that even a police verification report is not mandatory for the Committee to take a decision.It therefore, directed the committee to reconsider the petitioner's application within one week..If a person dies, he will be buried and he will rot. If a person is burned he will become ash but if the organs of his body are donated, he will give life and happiness to many.Justice PV Kunhikrishnan.Justice Kunhikrishnan also opined that preventing persons involved in criminal offences from donating organs might open the floodgates to preventing organ donations on other grounds. "If this stand of the respondent is allowed, I apprehend that, the respondent will reject such applications for permission to donate organs even on the ground that, the donor is a murderer, thief, rapist, or involved in minor criminal offences. I hope, they will not reject the applications because the donor is a Hindu, Christian, Muslim, Sikh, or person in a lower caste after comparing with the religion and caste of the recipient," the judgment stated..However, the same 1994 Act could help to bridge divides between communities, the Court noted."Let the Act 1994 become a path breaker for communal harmony and the idea of secularism. Let the Hindus, Christians, Muslims, Sikhs and even persons with criminal backgrounds donate their organs to needy people irrespective of their caste or creed or religion, or criminal background. That will be a day, that was dreamed by the founding fathers of our constitution.".Moreover, the Court also addressed delay by the Authorisation Committee in convening meetings and taking decisions and issued the following directions:The Chief Secretary of the State should issue appropriate orders directing all the authorities concerned to convene meetings to consider the applications within one week from the date of receipt of such applications. In urgent cases, the authority concerned should convene the meeting and consider the applications immediately. If there is any delay beyond 1 week for convening the meeting from the date of receipt of the application by the Authorisation Committee, the Committee concerned should mention the reason for the delay in the order. It is to be noted that, in Rule 23(3), it is stated that the final decision in an application is to be taken within 24 hours of holding the meeting by the Authorising committee.The Chief Secretary, upon receiving a copy of this judgement, shall issue appropriate directions in this regard to all the Authorisation Committees constituted as per Act 1994 and Rule 2014. A copy of the same must be submitted to the Registrar General of the Court within one month..[Read Judgement]