The Kerala High Court quashed an order rejecting the request for kidney transplantation and held that prevention of commercialisation is one of the objects of the Transplantation of Human Organs and Tissues Act, 1994 but each application has to be carefully considered on its own merits.

The High Court was considering a Writ Appeal filed against the orders rejecting the appellants’ request for kidney transplantation.

The Division Bench comprising Chief Justice Nitin Jamdar & Justice S.Manu observed, “The rejection of the application by Exhibit-P6 order is in a routine and pedantic manner. Prevention of commercialisation indeed is one of the objects of the Act of 1994. But, each application has to be carefully considered on its own merits based on the parameters specified under the Rules. It cannot be based on a generalised perception of the existence of large-scale commercial transactions. Since the order of the Authorisation Committee gives no reasons, it is also not clear whether the Committee has applied its mind to all the aspects.”

Advocate Shaji Thankappan represented the Appellants while Senior Government Pleader V. Tekchand represented the Respondents.

Factual Background

The Appellant No.1 is a renal patient undergoing dialysis for six years. The Doctors advised him to undergo immediate renal transplantation as his health condition was deteriorating rapidly. A medical certificate was issued to the Appellant by one of the hospitals approved for kidney transplantation. Appellant No.2,who was working in the household of Appellant No.1, volunteered to donate one of her kidneys to Appellant No. 1 for transplantation.

Appellant No.1 filed application with notarised affidavits, and theconsent of Appellant No.2, for kidney transplantation. The Organ Transplantation Local Level Committee of Respondent No.3 Hospital referred the matter for approval to Respondent No.2 – the District Level Authorisation Committee for Renal Transplantation. The Authorisation Committee rejected the transplantation. The Appellants appeal before the Respondent No.1 – Secretary, Health and Family Welfare Department was also rejected. Thereafter, the Appellants filed a Writ Petition.

Referring to the statement filed by Respondent No.4 – Deputy Superintendent of Police, wherein it was stated that the organ donation was for financial interest, the Single Judge dismissed the Petition.Being aggrieved, the Petitioners filed the Petition before the High Court by way of intant appeal under Section 5 of the Kerala High Court Act, 1958.

Reasoning

The Bench explained that the scheme of the Transplantation of Human Organs and Tissues Act, 1994 and the Transplantation of Human Organs and Tissues Rules, 2014 obligates the Authorisation Committee to provide the applicants an opportunity to be heard, and if the application is to be rejected, it has to give the reasons in writing. The discretion has to be used pragmatically and all interviews are to be videographed. Therefore, the statutory scheme contemplates and ensures transparency and objectivity in the decision making process of the Committee. The reasons are to be given in reference to the parameters under Rule 7(3) of the Rules of 2014 as to why the application filed for organ transplantation between the proposed living donor and the recipient, who are not near relatives, is being rejected.

Referring to the judgment of the Supreme Court in Kranti Associates (P) Ltd. and Another v. Masood Ahmed Khan and Others (2010), the Bench said, “When a person’s request for kidney transplantation is rejected, it directly affects his/her right to life and health.” The Bench noted that the order of the Authorisation Committee provided no reasons whatsoever. It stated that there is a Report of the Deputy Superintendent of Police with no further elaboration. The Appellants were not informed about the contents of the Report, nor was a copy of the Report provided to them.

“Further, the order of the Authorised Committee also suffers from breach of the principles of natural justice for non-supply of the Report on which the order was passed. At least this basic norm should have been followed by the Committee. We place our disapproval on record for the manner in which the Authorisation Committee has processed the application of the Appellants. Thus, the decision of the Authorisation Committee being in violation of the mandate under the Act and the Rules, and in breach of the principles of natural justice, will have to be quashed and set aside”, the Bench said.

Allowing the Appeal, the Bench restored the joint application filed by the Appellants before the Authorisation Committee and asked the Committee to take necessary decisions and pass a reasoned order.

Cause Title: Ismail Kunju M. V. & Anr. v. State of Kerala & Ors. (Neutral Citation: 2025:KER:5687)

Appearance:

Appellants: Advocates Shaji Thankappan,Ajay Gopal, Amal Baby, P.N. Sumodu, Subin K. Sudheer

Respondents:Senior Government Pleader V. Tekchand

Click here to read/download Order


Kerala HCJustice Nitin JamdarJustice S ManuTransplantation of Human Organs and Tissues Act

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.