Shoukath Ali Pullikuzhiyil and Anirudhan Pillai v. District Level Authorization Committee for Transplantation of Human Organs, Thrissur; Local Approval Committee of Organ Transplantation Medical Trust Hospital, Ernakulam; Department of Nephrology, Medical Trust Hospital, Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 6TH DAY OF MARCH 2017/15TH PHALGUNA, 1938** **WP(C).No. 6473 of 2017 (H) ---------------------------** ## **PETITIONER(S):** **-------------** ## **1. SHOUKATH ALI PULLIKUZHIYIL,** **AGED 40 YEARS, S/O MOOSA, VALIYAVADAKKIL HOUSE, SCHOOL PARAMBA, POST PALAKKAD (MLP), MALAPPURAM DISTRICT.** **2. ANIRUDHAN PILLAI,** **AGED 38 YEARS, S/O PARAMESWARAN PILLAI, NADAYUDE VADAKKETHIL, KURAMPALA, POST PANTHALAM, ADOOR.** **BY ADVS.SRI.C.M.MOHAMMED IQUABAL** **SRI.ANILKUMAR V. (VAZHARAMBIL) SMT.A.P.RUFAIJA** **RESPONDENT(S):** - **--------------** **1. THE DISTRICT LEVEL AUTHORIZATION COMMITTEE** - **FOR TRANSPLANTATION OF HUMAN ORGANS, THRISSUR, THRISSUR MEDICAL COLLEGE HOSPITAL, POST THRISSUR, PIN:680 020, REPRESENTED BY ITS CHAIRMAN.** **2. LOCAL APPROVAL COMMITTEE OF ORGAN TRANSPLANTATION MEDICAL TRUST HOSPITAL, ERNAKULAM, KOCHI-682 011, REPRESENTED BY ITS CHAIRMAN.** **3. THE DEPARTMENT OF NEPHROLOGY, MEDICAL TRUST HOSPITAL, ERNAKULAM, KOCHI-682 011, REPRESENTED BY ITS HEAD OF DEPARTMENT.** **R1 BY GOVERNMENT PLEADER SRI.S.KANNAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-03-2017 ALONG WITH WPC.6474/2017 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 6473 of 2017 (H) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1 THE TRUE COPY OF THE IDENTIFICATION CERTIFICATE OF THE 2ND PETITIONER AND HIS WIFE DATED 1.12.2016.** - **EXHIBIT P2 THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE CHAIRPERSON, PANTHALAM MUNICIPALITY DATED 17.12.2016.** - **EXHIBIT P3 THE TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONERS DATED 18.1.2017.** **EXHIBIT P4 THE TRUE COPY OF THE AFFIDAVIT OF THE 2ND PETITIONER DATED 18.1.2017.** **EXHIBIT P5 THE TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT DATED 29.11.2016.** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** ## **NIL** ## **//TRUE COPY//** **P.S.TO JUDGE** **Msv/** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) Nos.6473 & 6474 of 2017 ----------------------------------------------Dated this the 6[th] day of March, 2017** ## **JUDGMENT** The captioned writ petitions are materially connected and are in relation to renal transplantation application pending before the 1[st] respondent Committee constituted for the purpose. Therefore, I propose to deliver a common judgment. 2. First petitioner in W.P.(C) No.6473 of 2017 is a kidney patient and is undergoing treatment at the Medical Trust Hospital, Ernakulam. It is found that both the kidneys of the 1[st] petitioner are not functioning properly and therefore, needs urgent transplantation. Presently 1[st] petitioner is undergoing dialysis thrice a week. Since the kidneys of the close relatives of the 1[st] petitioner are not suitable, 2[nd] petitioner has informed his readiness to donate his kidney to the 1[st] petitioner. Since they are not close relatives, approval of the 1[st] respondent is required. Thereupon, petitioners approached the 2[nd] respondent for getting approval from the 1[st] respondent. Accordingly, 2[nd] respondent issued Ext.P5 communication to secure a report from the Police Chief to **W.P.(C) Nos.6473 & 6474 of 2017** 2 know about the criminal antecedents of the donor. It is the contention of the petitioners that the said document is unnecessary as per the amended Rules. If the petitioners are required to collect such a certificate, it will take more time, which will adversely affect the health of the petitioners. 3. First petitioner in W.P.(C) No.6474 of 2017 is also a kidney patient undergoing treatment for kidney problem at the Westfort Hi-Tech Hospital, Thrissur. The said petitioner is also advised to transplant his kidney immediately, since he is also undergoing dialysis thrice a week. Therein also the kidneys of close relatives are not matching and therefore, the 2[nd] petitioner has informed her readiness to donate her kidney to the 1[st] petitioner. Therefore, the approval of the 1[st] respondent is required, and for the said purpose, when approached the 2[nd] respondent, Ext.P7 communication is issued to get a report from the District Police Chief in respect of the criminal antecedents of the donor. 4. The issue raised by the petitioners in both the writ petitions is with respect to the communication issued by the 2[nd] respondent to the District Police Chief, is the question, and **W.P.(C) Nos.6473 & 6474 of 2017** 3 the issue can be resolved by making a short survey of the provisions of the Transplantation of Human Organs and Tissues Rules, 2014. 5. Notice to other respondents are dispensed with in view of the limited nature of order I propose to pass. 6. Heard learned counsel for the petitioners and the learned Government Pleader and perused the documents on record and the pleadings put forth by the petitioners. 7. Rule 7(3) deals with the methodology to be adopted by the Authorization Committee, which read thus: _“(3) When the proposed donor and the recipient are not near relatives, the Authorization 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;_ **W.P.(C) Nos.6473 & 6474 of 2017** 4 _(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.”_ 8. Therefore, according to learned counsel for the petitioners, as per Clause (viii) as it stood before the amendment, the criminal antecedents of the donor were to be enquired into. However, after the amendment, the only thing that is to be ensured is that the donor is not a drug addict. Therefore, the insistence of the respondents for securing Police report is not a required document at all in the matter of renal transplantation. 9. However, learned Government Pleader has relied on the very same provisions, and invited my attention to Clause (i) therein, which deals with evaluation done by the Authorization Committee in order to identify whether there is a **W.P.(C) Nos.6473 & 6474 of 2017** 5 commercial transaction between the recipient and the donor and whether any financial transaction is taking place. That apart, learned Government Pleader also relied on Clause (viii) and submitted that, in order to identify whether the donor is a drug addict or not, a medical examination by itself may not be sufficient, and if the subject matter is referred to the Police, the Police can conduct a quick enquiry and find out whether the donor has any antecedents of handling any drugs and whether he was an addict. Therefore, it is the contention of the learned Government Pleader that the said provisions are incorporated into the Rules with clear objectives for ensuring that the recipient of kidney carries on his life successfully after the renal transplantation. 10. Taking note of the respective submissions made across the Bar, I am of the considered opinion that the steps taken by the 2[nd] respondent to secure a report from the District Police Chief or any other police officials cannot be said to be an illegal action, for the reason that, in order to eliminate certain aspects during the course of enquiry by the 1[st] respondent, the 1[st] respondent has no other option than to rely on the Police Department. It is also submitted by learned **W.P.(C) Nos.6473 & 6474 of 2017** 6 Government Pleader that there is no organization attached to the 1[st] respondent Committee in order to carry out such enquiries. 11. Learned counsel for the petitioners has invited my attention to the judgment of this Court in _**'Ahmed Noushad v. District Level Authorization Committee for Transplantation of Human Organs, Thrissur and others'**_ [2016 (3) KHC 969] , wherein under a similar circumstance, a learned Single Judge of this Court held that the certificate of the Deputy Superintendent of Police is not required, and then the Committee was directed to take a decision within a time limit. 12. However, on a perusal of the said judgment, I do not find that the learned Judge had occasion to consider the evaluation to be done as per Rule 7(3) of the Rules, 2014. In view of the discussion made above, I do not find that the action taken by the 2[nd] respondent to secure a police report is illegal, arbitrary or unfair. The same is done in order to ensure safety of the renal transplantation proposed to be done. However, a time bound decision is to be taken by the respective authorities so as to avoid any delay in the matter. **W.P.(C) Nos.6473 & 6474 of 2017** 7 13. Therefore, there will be a direction to the respondents to ensure that the report of the police is secured in the shortest time limit. Accordingly, 2[nd] respondent in both the writ petitions are directed to secure the police report within a week from the date of receipt of a copy of this judgment, and the 1[st] respondent shall ensure a decision in respect of the subject issue within a period of ten days thereafter. The writ petitions are disposed of accordingly. Sd/- **SHAJI P. CHALY JUDGE** //true copy// P.S. to Judge St/07.03.2017