LAW AND MEDICINE ASSIGNMENT

Mid Semester Assignment No. - 2

SUBMITTED TO

AMITY LAW SCHOOL, MUMBAI

FOR THE PART FULLFILMENT

OF

[BBA LL.B. – 8th Semester]

By

Anirudh Rana

A70621518010

UNDER THE GUIDANCE OF

Ms. Vaishali Wankhede

AMITY LAW SCHOOL

ACADEMIC YEAR: 2018-2023 [Even Semester]

 Nagendra Mohan Patnaik And Ors. vs The Government Of A.P. Rep 12
November, 1996
 Writ Appeals 1272 and 1273 of 1996 were posted for admission and with the agreement of
the parties they have been taken up for final hearing along with the batch of Writ Petitions,
which have been filed questioning the vires of some of the provisions of the Andhra Pradesh
Transplantation of Human Organs Act, 1995 (Act No. 24 of 1995). The Act was preceded by
Ordinance called Andhra Pradesh Transplantation of Human Organs Ordinance, 1995. Since
the Act has come into force, any reference to the constitutional vires of the provisions of the
Ordinance is no longer necessary.

2. Invoking the jurisdiction of this Court under Article 226 of the Constitution of India, the
petitioners have alleged that the Act has such provisions which violate Articles 21 and 14 of
the Constitution of India and they, for the said reason, are ultra vires to the Constitution of
India.

3. Before we take up a brief prospecting into the provisions of the Act for appreciation of the
objects of the Act, we may profitably refer to the Central Act No. 42 of 1994 called The
Transplantation of Human Organs Act, 1994, which is enacted by the Parliament in
pursuance of Clause 1 of Article 252 of the Constitution of India on resolutions having been
passed by all the Houses of Legislatures of the States of Goa, Himachal Pradesh and
Maharashtra, to provide for regulation of removal, storage and transplantation of human
organs for therapeutic purpose and for the prevention of commercial dealings on human
organs and for the matters connected therewith or incidental thereto. This Act 42 of 1994
applies in the first instance, to the whole of the States of Goa, Himachal Pradesh and
Maharashtra and to all the Union Territories and shall be so applicable to such other State or
States, which adopts or adopt the Act by resolution passed in that behalf under Clause 1
of Article 252 of the Constitution of India. The Legislature of the State of Andhra Pradesh,
however, has enacted in the Forty Sixth Year of the Republic of India, Act 24 of 1995 for the
same purpose as the Central Act 42 of 1994, stating the objects and reasons as follows:

"Keeping in view the considerable advancement in Medical Sciences in recent times and the
worldwide practice of transplantation of human organs, the Government of India have
enacted the Transplantation of Human Organs Act, 1994. On the same lines, in the State of
Andhra Pradesh, Governor has promulgated the Andhra Pradesh Transplantation of Human
Organs Ordinance, 1994 (Andhra Pradesh Ordinance 18 of 1994) on the 8th September,
1994. As certain provisions of the Ordinance were under examination, a Bill replacing the
said Ordinance could not be introduced in the Legislative Assembly and as a result, the said
Ordinance lapsed on the 21st February, 1995.

As it was decided to have a law for the regulation of removal, storage and transplantation of
human organs for therapeutic purposes and for prevention of commercial dealings on human
organs immediately, Government have decided to promulgate an ordinance for the purpose
on the same lines with certain minor modifications. As the Legislative Assembly of the State
was not then in session having been prorogued, the Andhra Pradesh Transplantation of
Human Organce Ordinance, 1995 was promulgated by the Governor on the 9th March,
1995."

5. A reference has been made by one of the counsel appearing before us, to Section 11 of the
Act, which provides that no donor and no person empowered to give authority for the
removal of any human organ, shall authorise the removal of any human organ, for any
purpose other than therapeutic purposes, and an attempt has been made to develop an
argument that the Act has, by such prohibition, caused serious inroad upon any scientific
study of the human organs, even for the purposes of further development of the medical
sciences. We do not, however, propose to detain ourselves to deal with this aspect as savings
in Section 8 of the Act read with the provisions in Sections 5, 6 and 7 of the Act show clearly
that restrictions are intended mainly for the prevention of commercial dealings in human
organs and regulations of removal, storage and transplantation of human organs are intended
to help grafting of any human organ from any living person or deceased person to some other
living person for therapeutic purposes, i.e., for systematic treatment of any disease or the
measures to improve health according to any particular method or modality. It is legal under
the law as above, for any person to authorise the removal of even such organ of his body,
which if wholly removed, cannot be replicated by the body, but that should be voluntarily and
authorised in full consciousness of the donor and after being fully acquainted with the full
consequences of the removal of the organ. It is difficult to visualize absolute perfection of a
human body, but a disfigurement or deficiency of such nature which cannot be replicated by
the body, can hardly be acknowledged as a normal human body, which, no one can deny, is a
gift of God or of nature and is basic for any person who lives on the land called India i.e.,
Bharat, which is a socialist democratic Republic. Article 21 of the Constitution of India
provides that no person shall be deprived of his life or personal liberty except according to
procedure established by law. It will be too late for any person to say that the expression
'procedure established by law' does not mean a procedure which is reasonable, fair and just
and that life means only survival or animal existence. By now it is well recognised that right
to life enshrined in Article 21 includes the right to live with human dignity and includes all
such aspects of life which go to make a man's life meaningful, complete and worth living and
all such things which make it possible to live. This extends to right to livelihood and right to
decent environment. Everything that protects the quality of life is inherent in the guarantee
offered by Article 21. There is some attempt before us by some of the learned counsel
appearing for the petitioners to suggest that whatever considerations be made, a person must
be held to be free to decide about everything about himself and so to decide to donate his
organs, which may be vital for him. He or she can always barter or bargain in respect of
things including organs which belong to him/her. Such extreme propositions can, however,
be logically extended to grant a person the right to end his life. Our country has already
passed through that period when the right to suicide was acknowledged as a freedom
and Section 309 of the Indian Penal Code was declared ultra vires in the case of P. Rathinam
v. Union of India, . Reversing the said judgment, the Supreme Court in the case of Smt. Gian
Kaur v. State of Punjab, 1996 (1) ALT (Crl.) 535 (C.B.)(SC)= AIR 1996 SC 946 has upheld
the validity of Section 309 of Indian Penal Code and attempt to commit suicide is made a
punishable offence. We no longer live in the Puranic age of Shibi and Dadhichi, who cared
less for themselves and donated their vital organs to others. Even they did so not for gains or
as bargains. They were guided by the great encompassing concern for the world and practised
the laudable concern of sacrifice for the cause of good to society. Learned counsel for the
petitioners have endeavoured that the recipient's right to live is inroaded, if transplantation for
therapeutic purposes is denied by the restrictions upon the donor and authorisation is put
under such a straight jacket of conditions like authorisation in the presence of the spouse, if
living and in the presence of daughter or son or sister or brother in the same order and in the
presence of mother or father in case of unmarried person before his death and the strict
requirement of joint application by the donor and the recipient, etc.

6. We have difficulty, however, in accepting any violation of the right of the recipient
under Article 21 of the Constitution of India. He is as free to protect his life as the donor is
and his right to live, as the Supreme Court has pointed out in Pt. Parmanand Katara v. Union
of India , is right to receive medical treatment and medical aid. This may include
transplantation for therapeutic purposes of an organ of a living person or deceased person for
systematic treatment of any disease or the measures to improve health according to any
particular method or modality. This cannot, however, by any stretch of imagination be
extended to taking someoneelse's life to save one's own life. The law, as we have seen, has
noted as one of its objects the worldwide practice of transplantation of human organs as an
advancement in medical sciences, but chosen to protect unsuspecting persons who are lured
to part with some organ of their body, which cannot be replicated by the body, by deceit,
fraud and even coercion or made to take the sufferings in their body for money or for any
other consideration in lieu of money. If the purpose is forgotten and the object is ignored,
who knows how many persons would be falling prey to the designs of the dealers in human
organs for commercial purposes.

7. It will be pertinent here to emphasise that Article 19(1)(g) or in that matter Articles 301 to
305 of the Constitution do guarantee freedom to all citizens of the country to practise any
profession or to carry on any occupation, trade or business, but they have to be understood to
guarantee only such freedom which do not have a spirit of reckless propensity for making
easy gain at the cost of such vital rights of others, which, society as a whole, would abhor. In
State of Bombay v. R.M.D. Chamarbaugwala, when it was argued before the Supreme Court
that the word "trade or business or commerce" should be read in their widest amplitude as
meaning any activity which is undertaken or carried on with a view to earning profit and
contended that there was nothing in those two Articles 19(1)(g) and 301, which would qualify
or cut down the meaning of the critical words, the Supreme Court held there is no
justification for not excluding from the meaning of those words activities which may be
looked upon with disfavour by the State or the Court as injurious to public morality or public
interest. The Supreme Court in the said judgment has observed:

"On this argument it will follow that criminal activities undertaken or carried on with a view
to earning profit will be protected as fundamental rights until they are restricted by law. Thus
there will be a guaranteed right to carry on a business of hiring out goondas to commit assault
or even murder, of housebreaking, of selling obscene pictures, of trafficking in women and so
on until the law curbs or stops such activities. This appears to be completely unrealistic and
incongruous. We have no doubt that there are certain activities which can under no
circumstances be regarded as trade or business or commerce although the usual forms and
instruments are employed therein. To exclude those activities from the meaning of those
words is not to cut down their meaning at all but to say only that they are not within the true
meaning of those words. Learned counsel has to concede that there can be no 'trade' or
'business' in crime but submits that this principle should not be extended and that in any event
there is no reason to hold that gambling does hot fall within the words of 'trade' or business or
'commerce' as used in the Article under consideration."

8. All subsequent judgments of the Supreme Court, which have moved around the combined
effect of Article 19(1)(g) and Articles 301 to 305, have approved of the above and in fact in
subsequent judgments such as Nashirwar v. State of Madhya Pradesh, the above is reiterated
and in Krishnan Kumar v. J & K State, the expressions used are more than adequate for the
view that as a matter of public policy right to trade under Article 19(1)(g) has to be given a
limited meaning to exclude all such trade or business which had the tendency of encouraging
a spirit of reckless propensity for making easy gain.

9. In the case in hand thus we can say with confidence - whether the law intended to prohibit
dealing in human organs or not - no one could or can deal in human organs as a matter of
right. The prohibition thus is intended to discourage any attempt of using human organs for
commercial purposes and whether someone is a dealer in human organs or not, he or she even
as an individual cannot sell the organ.

10. Once it is held that right to die is not included in the right to live under Article 21 of the
Constitution of India, since the right to die is inherently inconsistent with the right to live, as
pointed out by the Supreme Court in Smt. Gian Kaur's case (2 supra), it is proper to suggest
that a person's decision to part with any such organ of his body, which, if wholly removed,
cannot be replicated by the body, is opposed to the very essence of the right to live with
human dignity, which means the existence of such a right up to the end of natural life. The
aim of the law as in Sections 3 and 9 of the Act aforementioned, thus is to regulate removal
of such vital organ of the body, which is medically not approved unless health conditions etc.,
of the concerned donor are fully examined, and in case in full consciousness and after
knowing full consequences of the removal of the organ, he decides to donate his organ, his
decision is respected, provided it is uninfluenced by considerations other than affection or
attachment towards the recipient or for any other special reason. Expressions 'affection or
attachment' need no elaboration as they are well understood expressions in English language
to signify a special concern of a person for another of oneness, kindly feelings, good will and
such other mental attributes or dispositions which create some sort of bond between the two.
The expression 'any other special reason', however, cannot be read to include considerations
which destroy or erode the voluntary character of authorisation by the donor and if there is a
reason for the donor to decide to donate any vital organ which is not strictly falling within the
ambit of the expressions 'affection' or 'attachment', it cannot be so detached or (sic. for)
remote a reason that one may doubt the genuineness of the authorisation for the removal of
the organ. A close examination of the provisions Under Sections 3 and 9 of the Act leaves no
manner of doubt that all possibilities of any kind of fraud, undue influence or consideration
which would render the authorisation a commercial transaction are intended to be eliminated
before the authorisation is accepted as one Voluntarily made by the donor. Appointment of a
Committee to authorise such donation, which is not for the benefit of a near relative of the
donor as contemplated in Sub-section (4) of Section 9 of the Act, is meant for such a scrutiny
of the donation, which would rule out the possibility of the donor having been influenced by
considerations other than affection or attachment towards the recipient or for any other
special reasons. Provision for application by the recipient and donor jointly in the manner as
prescribed under the rules under Sub-section (5) of Section 9 is intended for inquiry into the
doubts,, by the Authorisation Committee to satisfy itself that the applicants have complied
with all the requirements of the Act and the rules made thereunder. These provisions of the
Act, thus by recognising the need of transplantation of human organ have accepted the
imperative of the treatment of diseases, or the measures to improve the health of the recipient
on the one hand, and introduced sufficient safeguards for the donor who, by parting with
his/her organ, would deprive himself/herself of something vital to life and live with the
handicap for the rest of the life on the other hand. There is, thus no element of discrimination,
much less any hostile discrimination or any form of arbitrariness, which would amount to
denial of the equal protection of law and equality before law. The provisions, as we have
already noticed, thus, neither violate Article 21 of the Constitution of India nor violate Article
14 thereof.

11. It will be only reiterating the obvious that the duty assigned to the Authorisation
Committee is to decide upon the application, jointly made by the recipient and the donor,
either to grant approval for the removal and transplantation of human organ or to reject the
same for reasons to be recorded in writing, as severe consequences would follow on either
side i.e., in case of approval of the removal and transplantation of the human organ on
authorisation by the donor for any reason other than affection or attachment towards the
recipient or for any other special reasons, it would be unjust to the donor and in case such
conditions are existing and the application is rejected, the recipient is denied what legally is
needed for therapeutic purposes. The Authorisation Committee is required to hold an inquiry
to satisfy itself that the applicants have complied with all the requirements of the Act and the
rules made thereunder and also in case it decides to reject the application, to record the
reasons in writing for the same. These leave no manner of doubt that Authorisation
Committee is a quasi-judicial authority and it is thus required to follow such procedures
which are reasonable and in accordance with the principles of natural justice. Our attention
has been drawn to the absence of any mechanism or agency, which Authorisation Committee
may use for ascertaining, if necessary by investigation, the genuineness of the application
before it and it is urged that in the absence of guidelines, how the Authorisation Committee
shall determine in the course of the inquiry, that the applicants have complied with all the
requirements of the Act and the rules made thereunder or not; the Authorisation Committee is
not in a position to do anything except to know from the recipient and the donor about their
complying with all the requirements of the Act and the rules made thereunder. We, however,
do not see any reason to hold that Authorisation Committee is left without any guidelines in
deciding whether to approve the removal and transplantation of the organ or to reject the
application. There are quite a few express guidelines in the Act itself and there are other
intrinsic guidelines which supplement the express guidelines for the inquiry by the
Authorisation Committee. In natural sequence of events the donor, who authorises removal of
the organ, will always be in a position to explain that he had decided to authorise the removal
of the organ in full consciousness and after being explained the full consequences of the
removal of organ by the doctor and that authorisation was decided in the presence of his/her
spouse, if living and in the presence of daughter or son or sister or brother in the same order
and in the presence of mother or father in case of unmarried persons and that he had
authorised the removal of the organ for its transplantation to the recipient for reasons of
affection or attachment towards him/her or for any other special reasons. He/she shall always
be required to show that the authorisation for the removal of organ was not induced by any
cause other than affection or attachment towards the recipient or for any other special
reasons. It will be possible, when the donor and the recipient are examined, in course of the
inquiry, by the Authorisation Committee, to notice the presence of suspicious circumstances
and it would only be reasonable to hold that unless all suspicious circumstances are removed
authorisation may not be found to have been done voluntarily and only because the donor
was guided by reason of affection or attachment towards the recipient or for any other special
reasons. Neither the donor nor the recipient is denied the right of being heard and if their
application is rejected for reasons to be recorded in writing, they are informed why their
application has not been approved. The order of the Authorisation Committee under Sub-
section (6) of Section 9 is made appealable Under Section 17 of the Act. The applicants i.e.,
the donor and the recipient, thus are given the opportunity to question the correctness of the
decision of the Authorisation Committee and it needs no reiteration that the appellate
authority shall have the power to convert the rejection of the application into approval, if it
finds that the applicants have complied with all the requirements of the Act and the rules
made thereunder. In any event all such orders shall be subject to judicial review and an
application, subject to the limitations under which the power is exercised by the Court
under Article 226 of the Constitution of India, shall be liable (sic. shall lie).

12. The above, in our view, would dispose of the question of vires of the provisions
in Sections 3, 9 and 11 of the Act. There are, however, some half hearted contentions, which
require mention, only to be rejected. Entry 6 of the State List speaks of the competence of the
Legislature of the State to make laws as regards public health and sanitation, hospitals and
dispensaries. It cannot be said that the issue as to the removal and transplantation of a human
organ, as defined under the Act, is not covered by the expression public health and in such
parts in which the law has chosen to impose restrictions upon the hospitals and dispensaries,
not covered by the expression hospitals and dispensaries under the State item. It is, thus, not
possible to accept any challenge to the legislative competence or the argument that the field is
occupied by the Central Act i.e. The Transplantation of Human Organs Act, 1994 (Act 42 of
1994). We have already noticed that the Central Act No. 42 of 1994 is made by the
Parliament by consent of the legislatures of the States of Goa, Himachal Pradesh and
Maharashtra. The Central Act is extended to Union Territories as the Parliament is competent
to make laws in respect of Union Territories. The Central Act can be extended to other States
only if they adopt by a resolution, as contemplated under Clause (1) of Article 252 of the
Constitution of India. The State of Andhra Pradesh has not chosen to do so and instead
framed its own law for the purpose and for the objects and reasons as stated earlier.

13. There is some contention before us, however, that since the Authorisation Committee has
to perform a quasi-judicial function, without there being any person having such equipment
which someone who is required to act judicially possesses, its constitution suffers the basic
infirmity of being constituted of persons who do not possess any legal knowledge. This
submission, in our view, is based on a clear misapprehension of the legal position that only
such authorities which are created in lieu of Court of law are required to have persons who
possess qualifications, if not equal, at least nearer to the qualifications for the judicial
officers. It has been pointed out many a time by the Courts that matters which require
administrative determination should better be left for such persons to decide, who are
acquainted with the subject concerned. True, it is not shown anywhere under the Act or the
rules made thereunder as to who qualify to be the members of the Authorisation Committee.
Since the power to appoint the Authorisation Committee is given to the highest Executive of
the State i.e., the Government of the State, it can be safely presumed that it shall not bring
into Committee persons who do not have even the basic comprehension of the role which
they are required to play. It is good always that in matters of determination of issues like the
Authorisation Committee is expected to decide, Courts of law are not involved at the first
instance as Courts too will depend upon the expert evidence as to the need of a transplant and
a doctor as contemplated under the Act is best suited for deciding whether removal could be
approved or not. Courts' competence in this regard shall not be assured and clear.

14. In order, however, to create confidence that the Authorisation Committee shall take
necessary precautions which a quasi-judicial authority is required to take, one can trust the
Government of the State, while constituting the Authorisation Committee, to include one
such person who would guide the Committee to inquire into such necessary aspects of the
matter with regard to the application before it. Before we part with the judgment, we are
persuaded to state that, since the Authorisation Committee is one which is also required to
consider whether removal of the organ is arranged on the basis of some sort of commercial
transaction or for reasons which do not satisfy the conditions of authorisation as
contemplated under the Act and the rules made thereunder, it (Authorisation Committee)
shall have such powers as are ancillary or residuary to the powers to hold inquiry and to seek
for the said purpose, assistance from any employee/servant of the Government of the
State/any other agency employed by the Government of the State.

15. We have not dilated into the facts which have prompted the Legislature of the State to
come forward with Act 24 of 1995, except the preamble and the statement of objects and the
reasons. Existence of large scale illegal removal, storage of human organs and
commercialisation affecting the poorer sections of the society, are well known causes to
restrict the removal and transplantation of the human organs by every medical
practitioner/persons, so that no one benefits himself/herself at the misery of the donors. No
one to-day can deny that when transplantation of human organ is necessary to save a life and
the medical science has recognised it as a method, it should receive approval as a method
well-recognised and well-practised. Medical practitioners, however, are people who cannot
behave like mercenaries and see only the interest of the recipient and not that of the donor.
Can the society allow any hospital or clinic/a doctor or a physician to go astray and remove
human organs to help it thrive as a business and emergence of middle-men to benefit at the
cost of donors, who for the reasons of poverty sometime agree to sell their organs? There
would have been no need for the Legislature of the State to intervene, had concerned people
shown respect to values of life. Medical practitioners are people who enjoy high social status
in the society and are treated with respect by all concerned, for all beings and more so human
beings need medicare. We have reasons to state that regulation of hospitals, as envisaged
under the Act and the rules made thereunder, emphasise that they have to perform their duties
by caring for the recipient as well as the donor and that they do not fall a prey to the designs
of those who want to profit themselves at the cost of others.