Moideen E.M. v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **& THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU** **WEDNESDAY, THE 1ST DAY OF AUGUST 2018 / 10TH SRAVANA, 1940** **RP.No. 544 of 2018 IN WA. 2548/2017** **WA 2548/2017 of HIGH COURT OF KERALA** **===========** ## **REVIEW PETITIONER/APPELLANT** **MOIDEEN E.M., S/O.MUHAMMED, AGED 48 YEARS, EANGATH HOUSE, VARAVOOR, PILAKODE P.O., THRISSUR DISTRICT.** **BY ADV.SRI.C.M.MOHAMMED IQUABAL** ## **RESPONDENTS/RESPONDENTS** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.** **2. THE SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.** **3. THE DISTRICT LEVEL AUTHORIZATION COMMITTEE FOR** **TRANSPLANTATION OF HUMAN ORGANS,** **THRISSUR, THRISSUR MEDICAL COLLEGE HOSPITAL, POST THRISSUR, PIN-680 020, REPRESENTED BY ITS CHAIRMAN.** **4. LOCAL APPROVAL COMMITTEE OF ORGAN TRANSPLANTATION, WESTFORT HI-TECH HOSPITAL, THRISSUR, PIN-680 002, REPRESENTED BY ITS CHAIRMAN .** **5. PRESS COUNCIL OF INDIA, SOOCHNA BHAVAN, 8-C.G.O.COMPLEX, LODHI ROAD, NEW DELHI-110 003, REPRESENTED BY ITS SECRETARY.** **6. THE NODAL OFFICER, KNOS, DECEASED DONOR MULTI ORGAN TRANSPLANTATION PROGRAMME,GOVERNMENT OF KERALA, THIRUVANANTHAPURAM, PIN-695 001.** **BY STATE ATTORNEY SRI.K.V.SOHAN** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 01-08-2018 ALONG WITH R.P.NO.545/2018 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **SD** ## **P.R.RAMACHANDRA MENON & DAMA SESHADRI NAIDU, JJ.** ===================================== **R.P.No.544 of 2018 in W.A.No.2548 of 2017, R.P.No.545 of 2018 in W.A.No.2555 of 2017, R.P.No.546 of 2018 in W.A.No.2538 of 2017, R.P.No.547 of 2018 in W.A.No.2549 of 2017, R.P.No.549 of 2018 in W.P.(C)No.8434 of 2018 and R.P.No.552 of 2018 in W.A.No.2556 of 2017** ==================================== **Dated this the 1[st] day of August, 2018** ## **O R D E R** ## **Ramachandra Menon,J.** The grievance involved in all these cases is common and hence they are dealt with together. The core issue forming the subject matter of consideration in these review petitions is with regard to the right to issue advertisements in the print media, showing the requirement of organs (kidney) for transplantation from altruistic donors, for availing further treatment and to save their lives. It is stated that such advertisements are not prohibited under any statute except in cases where it involves consideration. When no relative with suitable kidney is available for transplantation, the only alternative is to identify a willing donor through advertisements, of course without involving any instance of -2- R.P.No.544 /18 in W.A.No.2548/17 and connected cases consideration/payment. However, when steps were taken in this regard, for issuing advertisements, the same was not accepted by the media stating that there was some Circular issued by the Government/ authorities prohibiting such advertisements as it may involve commercial transactions. This made the petitioners in W.P.(C)Nos.36409, 34995, 34533, 36077 and 33801 of 2017, to approach this Court for immediate interference. Permission granted earlier by a learned Judge of this Court to issue advertisements in this regard under similar circumstance was also sought to be relied on. 2. The main contention raised before the learned Single Judge was that, there was no prohibition in giving advertisement/publication and the only requirement was to see that no commercial dealing was involved. Specific reference was made to Section 19(1)(f) of the Transplantations of Human Organs and Tissues Act, 1994. The claim was resisted from the part of the Government, with reference to the _pros and cons_ and also the adverse -3- R.P.No.544 /18 in W.A.No.2548/17 and connected cases circumstances which may be resulted, if at all permission for advertisements was granted. The statistical data with reference to various years and the efforts being taken by the Government with the involvement of the Kerala Network for Organ Sharing (KNOS) were also made available. 3. After detailed discussion of the facts and figures, the learned Single Judge arrived at a finding that, there was a possible threat to the lives of the donors as well to some extent and in the said circumstance, the matter had to be given special approach, also in the light of the guiding principles for organ donation formulated by the World Health Organisation, so as to regulate the organ transplant. The learned Judge was of the opinion, that any publication, if permitted, would lead to negotiations and merely because there was no explicit offer in the advertisements, it could not be said or inferred that there would not be any passing of consideration or that no arrangement would be negotiated. Reference was also made to G.O.(M.S.) No.37/2012/H&FWD dated 4/2/2012 issued by the Government formulating the procedure for -4- R.P.No.544 /18 in W.A.No.2548/17 and connected cases transplantation of human organs, providing for registration of the intending recipients through hospitals and a prioritization based on the condition of the patient. The learned judge observed further, that this could be followed in the case of live donations as well; till the Government brought out separate procedure for living altruistic donations and that the 'KNOS' could be entrusted with onerous responsibilities also, for the present, in view of the prevalent requests for transplantation. It was accordingly, that appropriate directions were given as contained in paragraph 20 of the common judgment, which reads as follows: “20. The petitioners can register themselves with the KNOS, through the hospitals indicating their blood type or whatever details are required for organ transplantation. The KNOS shall make periodic press releases seeking willingness for donation of organs on purely altruistic motives. Any application received shall be processed, initially with a psychological evaluation and then finding a suitable registered individual requiring donation. The identification of the recipient and -5- ## R.P.No.544 /18 in W.A.No.2548/17 and connected cases the cross match for deciding compatibility shall be done with a team of Doctors as decided by the Nodal Officer and the expenses incurred shall be reimbursed by the intended recipient. The entire procedure shall be carried out ensuring anonymity of the donor and the expected recipient and eventually with approval from the Authorization Committee. Authorization Committees have been constituted by the State at the State and District level who shall deal with the individual cases referred to it. The Guidelines for Authorization Committees brought out by Notification No. 14931/S2/2009/H&FWD dated 19.11.2010 shall apply in these cases also. The State can bring out fresh procedure and guidelines, in consultation with the Advisory Committee as constituted under G.O. (M.S.)No.37/2012/H&FWDdtd.04.02.2012. The Chief Secretary shall take expeditious steps to formulate a procedure and bring out guidelines for altruistic non-directed donations; with anonymity maintained of the donor and the recipient. The State Government shall also ensure that there is a regular follow up of the donor and the recipient, for statistical purposes and also to provide a support system for the donor. A fund could also be created to accept donations from the public or -6- ## R.P.No.544 /18 in W.A.No.2548/17 and connected cases under Corporate Social Responsibility to provide a support system for those donors who are motivated only by altruism. The writ petitions are disposed of, declining the permission sought to make publications; but with the alternate measure of registration with the KNOS as directed herein above. No order as to costs.” This was sought to be challenged by the writ petitioners by filing separate appeals (Writ Appeal Nos.2538, 2548, 2549, 2555 and 2556 of 2017 & 70, 251, 180 and 456 of 2018) which were pending consideration. 4. While so, pursuant to the directions given by the learned Single Judge, the matter was considered elaborately by the Government, who issued revised guidelines as per G.O.(M.S.) No.26/2018/H&FWD dated 15.02.2018. This was challenged by the Writ Petitioner in W.P.(C)No.8434/2018 raising a contention that the amounts to be paid for the altruistic donor towards the alleged post surgery treatment and other heads were bad in all respects, inviting commercial dealings, which was not the object of the statute. On coming to know about the pendency of the said matter, the Division Bench -7- R.P.No.544 /18 in W.A.No.2548/17 and connected cases dealing with the appeals mentioned above ordered the above Writ Petition also to be posted along with the appeals and they were heard accordingly. 5. With regard to the challenge against the G.O. dated - 15.02.2018 raised in W.P.(C).No.8434/2018, it was considered separately and a separate judgment was passed on 20.03.2018, the operative portion of which, as contained in paragraph No.4 is to the following effect:- “4. We have considered the submissions made and according to us, a reading of the impugned provision of Ext.P5 would show that it only provides that all medical expenses incurred for donor evaluation and donor surgery must be borne by the recipients and that the donor should be compensated for loss of income for three months. The provision further states that the donor will be provided with free health insurance during his entire life time under any of the health insurance schemes of the Government. Similarly, sub clause (2) requires the recipient to pay organ utilisation fee of Rs.2 lakhs for covering the health expenses of the altruistic donor. These provisions of Ext.P5 are intended, as is clear from the provisions itself, to take care of the future welfare of the donor and these provisions cannot be construed as one helping commercial dealings in human organs. Therefore, the contention of the learned counsel -8- ## R.P.No.544 /18 in W.A.No.2548/17 and connected cases that the aforesaid provision of Ext.P5 would violate Act 42 of 1994, cannot be accepted. We do not find any illegality for interference and the writ petition is dismissed.” 6. In respect of the connected appeals (Writ Appeal Nos.2538, 2548, 2549, 2555 and 2556 of 2017 & 70, 251, 180 and 456 of 2018), the Bench held that, the finding entered by the learned Single Judge was very much supported by reasons, and hence, there was no reason to call for interference. It was accordingly, that the said Writ Appeals were dismissed as devoid of merit dated as per common judgment 20.03.2018. It was also made a mention that the challenge raised against the G.O.(M.S.) No.26/2018/H&FWD dated 15.02.2018 had been considered separately and that the validity of the said G.O. had been upheld as per separate judgment passed on the same day in W.P.(C)No.8434/2018. This led to the separate review petitions filed by the Writ Petitioners as mentioned above. 7. Mr.K.V. Sohan, the learned State Attorney submits with reference to the separate verdict passed by the Bench on the -9- R.P.No.544 /18 in W.A.No.2548/17 and connected cases very same date ie; on 20.03.2018 in W.P.(C)No.8434/2018, that the learned Judges have reserved the rights and liberties of the Writ Petitioner or anybody else to make further suggestions for improvement of the guidelines, if they so desire, by bringing it to the notice of the Secretary to the Government, Health and Family Welfare (B) Department. If any such representation or suggestion is made, the same shall be taken into account and if it is found that the said suggestion is worth incorporation, the needful shall also to be done. Despite the liberty given in this regard, the learned State Attorney submits, the writ petitioner has not moved the Government so far and in the said circumstance, the review petitioner is not justified in approaching this Court again by filing a petition seeking for review. 8. The learned counsel for the review petitioner submits that since the validity of the Government Order dated 15.02.2018 has already been upheld, even if any attempt is made by the review petitioner before the Government to have it modified, the same will not be fruitful. We find it difficult to accept the -10- R.P.No.544 /18 in W.A.No.2548/17 and connected cases said proposition. What has been examined by the Bench is only with regard to the requirements to be followed, so as to facilitate the organ transplant and the need to protect the rights and interest of the altruistic donor as well, providing for payment of certain amounts towards the loss of earning, and for covering the health expenses (except in the case of near relatives), as put forward by the learned State Attorney. The learned counsel for the review petitioner points out that the said stipulation providing for compensation to be paid to the altruistic donor through 'KNOS' cannot be made applicable in the case of a person otherwise coming forward as a voluntary donor, on knowing about the plight of the patients like the petitioner, adding that the quantum is quite onerous. The learned State Attorney points out that there cannot be any difference or distinction/classification between the donors, and particularly with reference to the health condition and that all possible adverse health hazards of the donor have to be taken care of. In any view of the matter, if there is any grievance for the review -11- R.P.No.544 /18 in W.A.No.2548/17 and connected cases petitioners in this regard, or if there is any lacuna or such other modifications are to be made (if sustainable on valid grounds) the liberty reserved by the Division Bench as per verdict dated 20.03.2018 very much protects such rights, in so far as it will open for the review petitioner to move the Government, by way of appropriate suggestions/modifications to be incorporated. It is for the Government to have it considered, if it is sustainable in accordance with law and as such, the interference declined with regard to the challenge against the G.O dated 15.02.2018 can't be or will not be a bar in this regard. This being the position, this Court is of the view that the finding and reasoning given do not call for any interference. 9. It is to be noted that the scope and power of review, in exercise of such jurisdiction is very limited and the said power cannot be invoked as a substitute for appeal. The power of review can never be invoked so as to provide a rehearing on the issue as well. We find support from the rulings rendered by the Supreme Court in **Meera Bhanja v.** -12- R.P.No.544 /18 in W.A.No.2548/17 and connected cases **Nirmala Kumari Choudhary [AIR 1995 SC 455], M/s.Thungabhadra Industries Ltd. v. Government of Andra Pradesh rep. By Deputy Commissioner Commercial Taxes, Anantapur [AIR 1964 SC 1372] and Parsion Devi v. Sumitri Devi [(1997) 8 SCC 715]** . We hold that there is 'no error apparent on the face of record', so as to invoke the power of review. The review petitions fail and they are dismissed accordingly. Sd/- **P.R.RAMACHANDRA MENON JUDGE** **Sd/DAMA SESHADRI NAIDU JUDGE** sd