JUDGMENT
Rakesh Kumar Jain, J.
1. Jaswinder Singh has approached this Court by invoking its extra-ordinary writ jurisdiction under Article 226 of the Constitution of India for the issuance of a writ in the nature of certiorari for quashing orders dated 24.12.2007 (Annexure P13) and dated 27.2.2008 (Annexure P14) passed by the Chairman, Authorisation Committee, respondent No. 2 and Secretary, Medical Education and Research, respondent No. 1 respectively.
2. In brief, the case of the petitioner is that he had suffered a complete renal failure at the age of 50. He has been advised for the transplantation of the said organ. His mother, aged 77 years, his wife, aged 49 years and son, aged 24 years, could not donate their kidney to him as their blood group did not thatch with that of the petitioner. How ever, the petitioner found a willing donor, namely Manjit Singh, aged 35 years, who is known to his family. Manjit Singh gave his consent to be a donor and the Hospital authorities, after thatching his blood etc., found him fit to donate his kidney to the petitioner. Dr. Arjinder Singh Bains., MS (PGI), Chief Transplant Surgeon certified that Jaswinder Singh petitioner is suffering from chronic renal failure and needs kidney transplantation which is being donated by Manjit Singh whose complete work has been done and is found to be fit to donate his kidney.
3. Since the transplantation of human organ is regulated by the Transplantation of Human Organs Act, 1994 (hereinafter referred to as “the Act”) in which Section 3 provides for authority for removal of human organ and Section 9 for the restriction on removal and transplantation of human organs. Sections 3 and 9 of the Act are being reproduced as under:
Section 3. Authority of removal of human organs. – (1) Any donor, may, in such manner and subject to such conditions as may be prescribed, authorise the removal, before his death, of any human organ of his body for therapeutic purposes.
(2) If any donor had, in writing and in the presence of two or more witnesses (at least one of whom is a near relative of such person), unequivocally authorised at any time before his death, the removal of any human organ of his body, after his death, for therapeutic purposes, the person lawfully in possession of the dead body of the donor shall, unless he has any reason to believe that the donor had subsequently revoked the authority aforesaid, grant to a registered medical practitioner all reasonable facilities for the removal for therapeutic purposes, of that human organ from the dead body of the donor.
(3) Where no such authority as is referred to in sub Section (2), was made by any person before his death but no objection was also expressed by such person to any of his human organs being used after his death for therapeutic purposes the persons lawfully in possession of the dead body of such person, may, unless he has reason to believe that any near relative of the deceased person has objection to any of the deceased person’s human organs being used for therapeutic purposes, authorise the removal of any human organ of the deceased person for its use for therapeutic purposes.
(4) The authority given under Sub-section (1) or Sub-section (2) or, as the case may be, Sub-section (3) shall be sufficient warrant for the removal, for therapeutic purposes, of the human organ; but no such removal shall be made by any person other than the registered medical practitioner.
(5) Where any human organ is to be removed from the body of a deceased person, the registered medical practitioner shall satisfy himself, before such removal, by a personal examination of the body from which any human organ is to be removed, the life is extinct in such body or, where it appears to be a case of brain-stem death, such death has been certified under Sub-section (6).
(6) Where any human organ is to be removed from the body of a person in the event of his brain-stem death, no such removal shall be undertaken unless such death is certified, in such form and in such manner and on satisfaction of such conditions and requirements as may be prescribed by a Board of Medical Experts consisting of the following, namely:
(i) the registered medical practitioner in charge of the hospital in which brain-stem death has occurred;
(ii) an independent registered medical practitioner, being a specialists to be nominated by the registered medical practitioner specified in Clause (i), from the panel of names approved by the Appropriate Authority;
(iii) a neurologist or a neurosurgeon to be nominated by the registered medical practitioner specified in Clause (i), from the penal of names approved by the Appropriate Authority: and
(iv) the registered medical practitioner treating the person whose brain-stem death has occurred.
(7) Notwithstanding anything contained in Sub-section (3), where brain-stem death of any person, less than eighteen years of age, occurs and is certified under Sub-section (6), any of the parents of the deceased person may give authority, in such form and in such manner as may be prescribed, for the removal of any human organ from the body of the deceased person.
Section 9. Restrictions on removal and transplantation of human organs. – (1) Save as otherwise provided in Sub-section (3), no human organ removed from the body of a donor before his death shall be transplanted into a recipient unless the donor is a near relative of the recipient.
(2) Where any donor authorises the removal of any of his human organs after his death under Sub-section (2) of Section 3 or any person competent or empowered to give authority for the removal of any human organ from the body of any deceased person authorises such removal, the human organ may be removed and transplanted into the body of any recipient who may be in need of such human organ.
(3) If any donor authorises the removal of any of his human organs before his death under Sub-section (1) of Section 3 for transplantation into the body of such recipient not being a near relative as is specified by the donor by reason of affection or attachment towards the receipt or for any other special reasons, such human organ shall not be removed and transplanted without the prior approval of the Authorisation Committee.
(4)(a) The Central Government shall constitute, by notification; one or more Authorisation Committees consisting of such members as may be nominated by the Central Government on such terms and conditions as may be specified in the notification for each of the Union Territories for the purposes of this section.
(b) The State Government shall constitute, by notification, one or more Authorisation-Committees consisting of such members as may be nominated by the State Government on such terms and conditions as may be specified in the notification for the purposes of this section.
(5) On an application jointly made in such form and in such manner as may be prescribed, by the donor and the recipient, the Authorisation Committee shall, after holding an inquiry and after satisfying itself that the applicants have complied with all the requirements of this Act, and the rules made there under, grant to the applicants approval for the removal and transplantation of the human organ.
(6) If, after the inquiry and after giving an opportunity to the applicants of being heard, the Authorisation Committee is satisfied that the applicants have not complied with the requirements of this Act and the rules made thereunder, it shall, for reasons to be recorded in writing, reject the application for approval.
4. Since the donor was not a relative of the petitioner, therefore, he had to seek an approval from the Authorisation Committee as per Section 9 Sub-section (3) of the Act. Section 9 Sub-section (5) provides for a joint application by both the parties. For that purposes affidavits were filed by Manjit Singh which are attached as Annexure P6, his father Annexure P7, his mother Annexure P8, his wife Annexure P9, his sister Annexure P10 and his brother Annexure P11. An enquiry was also conducted by the Senior Superintendent of Police, Sangrur which was submitted to the Civil Surgeon-Cum-Member Secretary of the Committee on 3.8.2007 in which it was categorically mentioned that Manjit Singh is donating his kidney out of his own free will and without any pressure and fear. The police gave no objection for donation of the kidney by Manjit Singh to Jaswinder Singh petitioner.
5. However, in meeting No. 20 dated 24.12.2007 (Annexure P13) which was held under the Chairmanship of Additional Deputy Commissioner, the case of the petitioner was considered and the approval was declined on the ground that money transaction was involved. The petitioner approached the Government, but his request was declined vide letter dated 27.2.2008 that his case was rejected after having been re-examined in the meeting of the Human Organ Authorisation Committee, Sangrur.
6. Mr. Kanwaljit Singh, learned Senior Advocate appearing for the petitioner, has argued that after the report of Senior Superintendent of Police, Sangrur submitted vide his letter (Annexure P12), that kidney was being donated out of free will and more on humanitarian ground as there was no allegation of money transaction involved, the rejection of the case by the Committee is arbitrary and unreasonable especially when all the family members of the donor had filed affidavits that they have no objection and the members of the family of the petitioner have filed affidavits that they could not donate their kidney due to medical reasons.
7. On the other hand, Mr. P.C. Goyal, learned Deputy Advocate General, Punjab, argued that since there is no relation between the petitioner and the donor, the possibility of money involvement cannot be ruled out as observed by the Committee. However it was admitted by him that the police verification is in favour of the petitioner in which it has been categorically pointed out that the kidney is being donated by Manjit Singh out of his own free will and without any fear and pressure.
8. We have considered the rival contentions of the parties and have gone through the record of the case. The only reason as per Annexures P13 and P14 to refuse necessary approval to the petitioner and the proposed donor is the alleged involvement of money. However, there is no material placed on record to reach to this conclusion arrived at by the Committee, therefore, in our considered view, the aforesaid reason is totally extraneous specially in view of the fact that in police verification, which is on record as Annexure P12, it has been made clear by the Senior Superintendent of Police, Sangrur that the kidney is being donated by the donor, without any fear and out of his own free will Human conduct and reactions in this regard cannot be measured in any mathematical terms. It has already come on the record that the donor knows the recipient as they have visiting terms in the family and it is because of sheer love and affection and humanitarian considerations, the kidney is being donated by Manjit Singh. The necessary approval cannot be denied only on the ground of a mere suspicion that some money consideration is involved especially when there is no material on record to prove that fact.
9. The present controversy is practically covered by a decision of a Division Bench of this Court rendered in Civil Writ Petition No. 17427 of 2004 (Rajinder Kumar v. State of Punjab and Ors.) decided on 22.2.2005 in which, on the basis of the police report where money transaction was ruled out, the approval was granted.
10. As a result of the aforesaid discussions, the present writ petition is allowed and the orders, Annexures P13 and P14, are hereby quashed. Resultantly, respondent No. 2 – the Authorisation Committee is directed to grant necessary approval to the petitioner forthwith to receive the kidney proposed to be donated by Manjit Singh. The present writ petition is, thus, disposed of accordingly. No costs.