Kerala HC wants organ donation law to boost secularism

Let the Transplantation of Human Organs and Tissues Act of 1994 become a path breaker for communal harmony and secularism so that people of different faiths and criminal backgrounds can donate their organs to the needy irrespective of caste, creed, religion or criminal antecedents, the Kerala High Court has said.

The court further said, "There is no organ in the human body like a criminal kidney or criminal liver or criminal heart! There is no difference between the organ of a person without a criminal antecedent and the organ of a person who has no criminal antecedents. Human blood is passing through all of us".

It also said that if a body is buried, it will rot and if cremated, it will turn into ash. However, if the organs are donated, it would give life and happiness to many.

The observations by Justice P V Kunhikrishnan came while setting aside the decision of the Ernakulam District Level Authorization Committee for Transplantation of Human Organs, rejecting an application for organ donation on the ground that the donor had criminal antecedents.

Deprecating the committee's decision, the high court said the criminal antecedents of a donor was not a criteria to be considered by the panel as per the provisions of the 1994 Act or the Transplantation of Human Organs and Tissues Rules of 2014 framed under it.

The judge said if the committee's stand was allowed, "I apprehend that, the respondent (committee) will reject such applications for permission to donate organs even on the ground that the donor is a murderer, thief, rapist, or involved in minor criminal offences. I hope, they will not reject the applications because the donor is a Hindu, Christian, Muslim, Sikh, or person in a lower caste after comparing with the religion and caste of the recipient."

"According to my opinion, there is no logic to the finding of the committee for rejecting the application...if the reasoning of the authority is accepted, the only conclusion that is possible about such reasoning of the authorisation committee is that the committee believes that the criminal behaviour of the donor will percolate to the person who accepts the organs! What sort of reasoning is this? No person with common sense can agree with the same. These are flimsy reasons," the judge said. 

The court said if there was no evidence to show that there is no commercial dealing, "pragmatism should overtake technicalities, because a man is on death bed".

"The decisions of the authorisation committee should inspire people to donate their organs to needy people. Awareness is necessary to increase the organ donation ratio in India. Some studies on the internet show that India remains a country with one of the lowest organ donation rates in the world," the court observed.

The court also disapproved of the delay in deciding the organ donation application in the instant case where it was rejected four months after it was filed and that too after a contempt plea was moved in the high court.

"Moreover, delay in convening meetings and taking decisions by the authorisation committee in applications for organ donation is also to be deprecated. This should not be allowed to continue in the future," the court said and directed the Chief Secretary of Kerala to issue appropriate orders directing all the authorities concerned to convene meetings to consider the applications submitted as per Act 1994 and Rule 2014, as expeditiously as possible, at any rate, within one week from the date of receipt of such applications.

"In urgent cases, the authority concerned should convene the meeting and consider the applications forthwith," the court said.

It further said that a time limit was necessary for convening the meeting also and if there was any delay of more than one week for convening a meeting from the date of receipt of the application by the committee, it should mention the reason for the delay in the order.

With these observations and directions, the court set aside the committee's decision rejecting the application and ordered it to reconsider the same as expeditiously as possible, "at any rate, within one week from the date of receipt of a copy of this judgment".

The Chief Secretary was directed to issue the necessary orders and produce a copy of the same before the Registrar General of the high court within one month from the date of receipt of a copy of the judgment.

The judgement came on the plea of a man, whose both kidneys have failed, challenging the committee's July 8 decision rejecting the application for permitting his former driver, with whom he has a close relationship, to donate one of his kidneys to him.

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