Law Web: donation of kidney

Petitioner no. 3 is adjudged as mentally challenged and, in view of section 9(1-C) there is prohibition for removal of organs or tissues. Section 9(1-C) of the Act reads thus:

9. Restrictions on removal and transplantation of [human organs or tissues or both]

(1-C) No human organs or tissues or both shall be removed from the body of a mentally challenged person before his death for the purpose of transplantation.

Explanation - For the purpose of this subsection,-

(i) the expression “mentally challenged person” includes a person with mental illness or mental retardation, as the case may be;

(ii) the expression “mental illness” includes dementia, schizophrenia and such other mental condition that makes a person intellectually disabled;

(iii) the expression “mental retardation” shall have the same meaning as assigned to it in clause(r) of section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996)]

As has been recorded above, the principles in Common Law jurisdiction based upon “best interest test” cannot be made applicable in view of specific provisions in Transplantation of Human Organs and Tissues Act, 1994. Section 2(f) of the Act defines donor as the person not less than eighteen years of age, who voluntarily authorises removal of his organ or tissues. In the instant matter, petitioner no. 3 is not an individual who is in a position to voluntarily authorise removal of his organ or tissues. Apart from this, section 9(1-C) puts bar on removal of human organ or tissues or both from body of a mentally challenged person. In the instant matter, petitioner no. 3 is adjudged as suffering from mental retardation and he is reported to be a person not capable of making decision for himself. We, with a view to find out whether petitioner no. 3 has a minimum level of understanding, interviewed him by calling him in chamber in presence of the counsel of both the sides. We have noticed that petitioner no. 3 even was not in a position to understand the questions put to him and is incapable of understanding the consequences of his act. His decision making power is severely impaired and we do not doubt the opinion of the Consultant Psychiatrist.

20. The restriction on removal and transplantation of human organs or tissues or both contained in sub-section (1-C) of section 9 of the Act in respect of mentally challenged person is an absolute prohibition. The Statutory provision is couched in negative language and as such shall have to be construed mandatory. In this connection reference can be made to the judgment of the Honourable Supreme Court in the matter of Vijay Narayan Thatte v. State of Maharashtra reported in(2009) 9 SCC 92 The proviso to section 6 of the Land Acquisition Act which puts prohibition for making a declaration under section 6 after expiry of one year from the date of publication of notification was a matter of consideration before the Court. The Honourable Supreme Court recorded that since the statute is couched in negative language, it is referred as peremptory and mandatory in nature. While interpreting the negative prohibition, in paragraphs 5 to 16 of the judgment, the Honourable Supreme Court has observed thus:

“5. As stated by Crawford:

“263. Affirmative, negative, prohibitory and exclusive words.- Prohibitive or negative words can rarely, if ever, be directory…. And this is so, even though the statute provides no penalty for disobedience.”

(See Crawford: Statutory Construction, p. 523; see also in this connectionHaridwar Singh v. Bagun Sumbrui, SCC p. 895, para 13, Lachmi Narain v. Union of India; Mannalal Khetan v. Kedar Nath Khetan).
In the High Court of Bombay at Aurangabad

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Sunday, 31 December 2017

Whether ‘Mentally challenged’ man can donate kidney to sibling?