Monday, 2 October 2017

Whether authorization committee should call report of police in routine matter in case of organ donation?

We have considered the matter and in our view, the submission is correct, but not only so. The reference to the Rules would show that it is the Authorisation Committee that has to take the decision. It has to devise ways and means to come to those findings. In order to reduce bureaucratic delay and red-tapism, they have to directly take decisions and not delegated to others. This goes a long way in reducing the time taken to take a decision as they are dealing with a situation where a person is virtually on deathbed and time is of essence.

7. But we do not agree to the submission that under no circumstances, police help can be taken. If we refer to various sub rules, different considerations have to be enquired into. But, normally the Authorisation Committee devises ways and means by way of affidavits and certifications that those satisfactions are arrived at. Police can only be or rather police should only be involved, if the Authorisation Committee doubts the genuineness of the claims or bona fides of the persons or genuineness and bona fides of the documents produced and not otherwise. Verification through police as a routine manner in all cases should generally be avoided. That would save time and harassment to already harassed people. The prime consideration being that, there is no commercialisation in matters of organ donation. The organization committee can surely discover those by various certificates and documents that it requires to be filed before decisions are taken.
IN THE HIGH COURT OF KERALA

W.A. Nos. 560 and 561 of 2017

Decided On: 22.03.2017

Kunhi Mohammed K. and Ors. Vs. District Level Authorization Committee and Ors.

Hon'ble Judges/Coram:
Navaniti Prasad Singh, C.J. and Antony Dominic, J.

Citation:AIR 2017 Kerala 147


1. These two appeals arise out of a common judgment dated 6-3-2017 passed by learned Single Judge of this Court in W.P.(C) Nos. 6473 and 6474 of 2017 whereby the challenge of the writ petitioners is to the letters written by "Authorisation Committee" to the police. The said verification reports had been challenged and the challenge had been negatived by the learned Single Judge.

2. The short issue is whether Rule 7, and in particular Rule 7(3), of the Transplantation of Human Organs and Tissues Rules, 2014, framed under Section 24 of the Transplantation of Human Organs and Tissues Act, 1994, contemplates involvement of a third agency like the police to conduct verifications. For convenience, we may quote below Rule 7(3) as a whole:

"7(3) When the proposed donor and the recipient are not near relatives, the Authorisation Committee shall,--

(i) evaluate that there is no commercial transaction between the recipient and the donor and that no payment has been made to the donor or promised to be made to the donor or any other person;

(ii) prepare an explanation of the link between them and the circumstances which led to the offer being made;

(iii) examine the reasons why the donor wishes to donate;

(iv) examine the documentary evidence of the link, e.g. proof that they have lived together, etc.;

(v) examine old photographs showing the donor and the recipient together;

(vi) evaluate that there is no middleman or tout involved;

(vii) evaluate that financial status of the donor and the recipient by asking them to give appropriate evidence of their vocation and income for the previous three financial years and any gross disparity between the status of the two must be evaluated in the backdrop of the objective of preventing commercial dealing;

(viii) ensure that the donor is not a drug addict;

(ix) ensure that the near relative or if near relative is not available, any adult person related to donor by blood or marriage of the proposed unrelated donor is interviewed regarding awareness about his or her intention to donate an organ or tissue, the authenticity of the link between the donor and the recipient, and the reasons for donation, and any strong views or disagreement or objection of such kin shall also be recorded and taken note of."

3. Learned counsel for the appellants submits that primarily in terms of Rule 7, it is the obligation cast upon the Authorisation Committee to satisfy itself on the various aspects as mentioned in Rule 3 which are predominantly to avoid commercialisation of donation of organs. We cannot dispute the submission.

4. Learned counsel for the appellants further submits that if we compare the provision of the Transplantation of Human Organs Rules, 1995, and in particular Rule 4A(4)(v) thereof, a distinction would be seen. The aforesaid provision reads as follows:

"4A(4)(v) that the donor is not a drug addict or known person with criminal record;"
5. A comparison of Rule 7(3)(viii) of the Transplantation of Human Organs and Tissues Rules, 2014, and Rule 4A(4)(v) of the Transplantation of Human Organs Rules, 1995, would show that "person with criminal record" is an expression which is not found in the present rules. It is submitted that this clearly shows that enquiry by police is not intended to be there. It is submitted that predominantly, it is the Authorisation Committee which has to come to a satisfaction that none of the norms as specified in the Act and Rules are violated.

6. We have considered the matter and in our view, the submission is correct, but not only so. The reference to the Rules would show that it is the Authorisation Committee that has to take the decision. It has to devise ways and means to come to those findings. In order to reduce bureaucratic delay and red-tapism, they have to directly take decisions and not delegated to others. This goes a long way in reducing the time taken to take a decision as they are dealing with a situation where a person is virtually on deathbed and time is of essence.

7. But we do not agree to the submission that under no circumstances, police help can be taken. If we refer to various sub rules, different considerations have to be enquired into. But, normally the Authorisation Committee devises ways and means by way of affidavits and certifications that those satisfactions are arrived at. Police can only be or rather police should only be involved, if the Authorisation Committee doubts the genuineness of the claims or bona fides of the persons or genuineness and bona fides of the documents produced and not otherwise. Verification through police as a routine manner in all cases should generally be avoided. That would save time and harassment to already harassed people. The prime consideration being that, there is no commercialisation in matters of organ donation. The organization committee can surely discover those by various certificates and documents that it requires to be filed before decisions are taken.

8. Thus to the extent above, we do not agree with the views of the learned Single Judge. While it is so, we may also note that a learned Single Judge of this Court in an earlier decision in Ahamed Noushad v. District Level Authorization Committee for Transplantation of Human Organs, Thrissur and Ors. MANU/KE/0965/2016 : 2016 (3) K.H.C. 969 had after looking to the Rules allowed the writ petition holding that police cannot be asked to enquire into the matter by the Authorisation Committee.

9. For the reasons aforesaid, we are of the view that this decision has to be now read along with the views as we have now taken and indicated above.

10. We accordingly direct the Authorization Committee concerned to take decisions expeditiously in the matter in accordance with law and observations made by this Court.

These appeals are accordingly disposed of.





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