-1-

LAW COMMISSION OF KARNATAKA

THIRTY FIRST REPORT

Re: Advisability of invoking Article 252 of

the Constitution and adopting
Transplantation of Human Organs Act, 1994
and urgent need to revoke the adoption and
to enact a better Law for Human Organ
Transplantation.

Government of Karnataka, Ministry of Law

 -2-

LAW COMMISSION OF KARNATAKA

Dr. Justice V.S. Malimath,

Chairman

Mr. Justice S.R. Venkatesha Murthy,

Member

Sri. B.A. Muchandi,

Member Secretary

Ex-Officio Members

Prof. Ravivarma Kumar

Advocate General of Karnataka,

Mrs. K.S. Mudagal

Principal Secretary,
Dept. of Law, Justice & Human Rights,

Sri. V. Shreesh.
Secretary, Legislative Council

Sri. P. Omprakasha
Secretary, Legislative Assembly

Prof. K. M. Hanumantharayappa
Dean, University Law College,
Bangalore University,
Sri. B. B. Pattar
Special Secretary to Government,
Dept. of parliamentary Affairs & Legislation,
Director, KILPAR,
Government of Karnataka

Government of Karnataka, Ministry of Law.

 -3-

LAW COMMISSION OF KARNATAKA

No.302, III Floor, Vidhana Soudha, Bangalore-560 001
Telephone No.080 22033882 – Telefax No.080-22200637

THIRTY FIRST REPORT

Re: Advisability of invoking Article 252 of

the Constitution and adopting
Transplantation of Human Organs Act, 1994
and urgent need to revoke the adoption and
to enact a better Law for Human Organ
Transplantation.

Government of Karnataka, Ministry of Law

 -4-

LAW COMMISSION OF KARNATAKA

THIRTY FIRST REPORT

21/09/2013

Re: Advisability of invoking Article 252 of the Constitution

and adopting Transplantation of Human Organs Act, 1994
and urgent need to revoke the adoption and to enact a better
Law for Human Organ Transplantation.

The Law Commission of Karnataka received a representation

dated 30/03/2009 on behalf of the Nephrology Association of Karnataka

(Regd.) bringing to the notice of the Commission about the serious

problem being faced by the patients suffering from kidney failure

because of several serious defects in the Human Organs Transplantation

Act, 1994 enacted by the Parliament in accordance with Article 252 of

the Constitution of India. The representation states that it represents the

considered views formulated after thorough discussion among Senior

Nephrologists in the State of Karnataka.

 -5-

2. It is stated that there is an estimated waiting list of 150000

patients needing kidney transplantation and that only about 3% of the

patients are able to get kidneys for transplantation. It is pointed out that

the number of kidneys available is very small not because there are not

enough persons who can give their kidneys but because of the

unreasonable restrictions imposed by the Act. Only near relatives which

means spouse, son, daughter, father, mother, brother or sister can donate

their kidneys. The offer made by the eligible near relatives can be

accepted after due scrutiny by the prescribed authorised committee. It

is further pointed out that there is a suggestion to modify the definition

“near relatives” to include first cousins, uncles/aunts, (sibling of the

parents) brother/s-in-law, sister/s-in-law and parents-in-law who are

deeply attached and concerned in suffering/health of the patient.

A grievance is also made about the recent notification which states that

the onus of establishing the donor’s address rests on the hospital and

transplant team that conducts the surgery.

3. Further grievance is that in case of living donor who is not

near relative of the recipient, the onus of proving the motive for the
 -6-

donation is affection or attachment towards the recipient or for any other

special reason shall be solely that of the authorization committee.

4. As regards cadaver transplantation is concerned the

grievance is that no rules have been framed in this behalf as has been

done in the State of Tamil Nadu to regulate cadaver transplantation. In

the absence of proper prescribed procedure in this behalf cadaveric

transplantation is not possible. It is for all these reasons that a prayer is

made to modify the law so as to encourage enhancing the legal organ

pool and prescribing a reasonable procedure for transplant. The

representation is annexed at Appendix-1.

5. In our constitutional scheme the legislative powers are

distributed between the Union and the States (which is a common

feature of federal constitutions) with a bias in favour of the Union. The

Union Parliament has exclusive legislative power as regards matters in

List I, the State Legislatures have exclusive legislative power regarding

matters in List II, and as regards matters in List III the legislative power

of the Union vis-à-vis the State is governed by the provisions of Art 254.
 -7-

6. The States have exclusive power of legislation over every

item in List II; however, there are a couple of exceptions to the general

rule- Arts 249 and 250. But they have their limitations. Art 249 requires

the Rajya Sabha to pass resolution by 2/3rd majority to enable Parliament

to make a law with respect to a matter in the State list and that

resolution would be valid for one year in the absence of any further

resolution passed by the Rajya Sabha. Otherwise, the Parliamentary law

will cease to be operative after six months after the resolution ceases to

be in force. Under Art 250 Parliament is empowered to make laws with

respect to any matter in the State list when there is a proclamation of

Emergency. Such a law would be operative during the period of

Emergency and for six months thereafter. These are two occasions,

limited in time and operation, when the Union on its own initiative

extends its legislative power to the State’s legislative domain.

7. The topic of Transplantation of Human Organs falls under

entry 6, List-II (State List) of 7th Schedule to the Constitution of India

which reads “Public Health and Sanitation, Hospitals and Dispensaries”.

It is therefore clear that it is the Legislature of the State that has

legislative competence to enact a law regulating Transplantation of

Human Organs and not the Parliament.

 -8-

8. Article 252 of the Constitution which confers power on the

parliament to legislate for two or more States by consent or by adoption

of such legislation by any other State reads as follows:

“Article 252 - Power of Parliament to legislate for

two or more States by consent and adoption of such

legislation by any other State-

(1) If it appears to the Legislatures of two or more

States to be desirable that any of the matters with respect

to which Parliament has no power to make laws for the

States except as provided in articles 249 and 250 should

be regulated in such States by Parliament by law, and if

resolutions to that effect are passed by all the Houses of

the Legislatures of those States, it shall be lawful for

Parliament to pass an Act for regulating that matter

accordingly, and any Act so passed shall apply to such

States and to any other State by which it is adopted

afterwards by resolution passed in that behalf by the

House or, where there are two Houses, by each of the

Houses of the Legislature of that State.

 -9-

(2) Any Act so passed by Parliament may be

amended or repealed by an Act of Parliament passed or

adopted in like manner but shall not, as respects any State

to which it applies, be amended or repealed by an Act of

the Legislature of that State”.

9. Article 252 is a special provision which enables

Parliament to make laws with respect to State subjects in certain

circumstances. The basis of Union legislation with respect to the State

List under Article 252 is an agreement between two or more States to

that effect. According to this article, if the Legislatures of two or more

States pass resolutions to the effect that it is desirable to have a

parliamentary law regulating any of the matters included in the State list,

it would be lawful then for Parliament to make laws regulating that

matter. Such laws can be extended to any other State as and when the

Legislature of that State passes a resolution to that effect. If any such

law is to be amended or repealed, it can be done by Parliament alone.

10. Other federal Constitutions do not have such provisions

except the Australian Constitution where Sec 51 (xxxviii) is similar to

 - 10 -

Article 252. It authorizes Parliament to enact laws with respect to

matters referred to it by the Parliament (s) of any State(s) ‘so that the

law shall extend only to States by whose Parliament the matter is

referred, or which otherwise adopt the law.’ That provision has not been

invoked at all in Australia so far while in India Article 252 has been

invoked and applied on quite a few occasions.

11. It is invoking provisions of Article 252 that the

Legislatures of Goa, Maharashtra and Himachal Pradesh requested the

Parliament to enact a law on Transplantation of Human Organs.

Accordingly, the Parliament has enacted the Transplantation of Human

Organs Act, 1994 (42 of 1994) (hereinafter referred to as the Act). The

copy of the Act has been annexed as Appendix-2. Sub-Section (2) of

Section 1 of the Act provides that it applies in the first instance to the

whole States of Goa, Himachal Pradesh and Maharashtra and to all

Union Territories and also to such other States which adopt this Act by

resolutions passed in that behalf under Article 252 (1) of the

Constitution by all the Houses of Legislature of that State.

 - 11 -

12. As Article 252 (1) enables the Legislature of any State to

adopt the Act passed by the Parliament under Article 252 (1) the State

of Karnataka decided to adopt the Act. Accordingly, the Karnataka

Legislative Assembly passed a resolution on 03/04/1995 to adopt the

Act in the State of Karnataka which reads as under.

“NOW THEREFORE, in exercise of the powers

conferred by clause (1) of Article 252 of the Constitution

of India this House resolves that the Transplantation of

Human Organs Act, 1994 should be adopted in the State

of Karnataka”.

The copy of the said resolution is annexed as Appendix-3.

13. On 04/04/1995 the Karnataka Legislative Council also

passed a resolution to adopt the Act as follows:

“NOW THEREFORE, in exercise of the

powers conferred by clause (1) of Article 252 of the

Constitution of India, this House hereby resolves

that the Transplantation of Human Organs Act,

1994 should be adopted in the State of Karnataka”.

 - 12 -

The copy of the resolution is annexed as Appendix-4.

Accordingly the Act adopted by the State of Karnataka came into force

on 04/04/1995.

14. For convenient ready reference relevant provisions of the

Act namely Section 2 (i), Section 3 and Section 9 of the Act are

extracted below:

“2. Definitions.- In this Act, unless the context

otherwise requires:

(i) “near-relative” means spouse, son, daughter, father,

mother, brother or sister;

3. Authority for 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

 - 13 -

is a near relative of such person), unequivocally

authorized 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 person 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 decease person’s human

 - 14 -

organs being used for therapeutic purposes, authorize 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, that life is

extinct in such body or, where it appears to be a case of

brain-stem death, that such death has been certified

under sub-section (6).

 - 15 -

(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 specialist, to be

nominated by the registered medical

practitioner specified in cause (i), from the

panel of names approved by the

Appropriate authority;

(iii) a neurologist or a neurosurgeon to be

nominated by the registered medical

 - 16 -

practitioner specified in clause (i), from the

panel 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

subsection (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.

9. Restriction 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.
 - 17 -

(2). Where any donor authorizes the removal of

any of his human organs after his death under sub-

section (2) of section 3 of any person competent or

empowered to give authority for the removal of any

human organ from the body of any deceased person

authroises 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 authorizes 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

recipient 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

 - 18 -

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 thereunder, grant to the

applicants approval for the removal and transplantation

of the human organs.

 - 19 -

(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.

15. Sub-Section (1) of Section 3 provides that any donor may,

in such manner and subject to such conditions as may be prescribed,

authorize removal before his death, of any human organ of his body for

therapeutic purposes. Sub-Section (3) of Section 9 provides that if any

donor authorizes 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 recipient or for any

other special reasons, such human organ shall not be removed and

transplanted without the prior approval of the Authorization Committee.

The expression “near-relative” means spouse, son, daughter, father,

mother, brother or sister. It is clear from this provision that the person
 - 20 -

who is in need of kidney for transplantation cannot purchase a kidney

from any person who is willing to sell it for consideration subject of

course to the condition that he is fit to donate his kidney without danger

to his life. Right to life is a very precious fundamental right. If there is

no relative who is willing to donate the kidney and there is a non-

relative who is willing to sell his kidney for consideration, the act comes

in the way of saving the life of the person. When the seller is fit to spare

a kidney without detriment to his life and voluntarily offers to sell his

kidney for reasonable consideration one fails to understand the reason

for the Act to prohibit purchasing of kidney.

16. One can appreciate prescribing a proper procedure to

ensure that the giver of the kidney is in such good health and that he will

not suffer by giving one of his kidneys. One can understand taking care

of future health of the giver. One can understand prescribing proper

procedure to ensure that the consideration for the kidney is just and

reasonable and is given to the donor well before removal of the kidney

and to prevent middlemen and others from cheating the giver and the

receiver. Law must ensure that the givers monetary and health interests
 - 21 -

are properly safeguarded. Once these concerns are taken care of there is

no good reason to prevent the needy patient from purchasing the kidney

to save his life. There is nothing wrong if even near relatives are paid

the price for the kidney he gives to compensate his own pain, suffering,

loss of time, loss of income and the inconvenience of various kinds he

has to suffer from. Law must help to protect life and should not come in

the way of saving life unless there are justifiable reasons. As laid down

by the Supreme Court in AIR 1978 SC 248 Articles 14, 19 and 21 of the

Constitution mandate that any law which is not just, fair and reasonable

is void. The restrictions imposed by the Act discussed above which

prohibit bonafide sale of kidney to save the life of another person are not

just, fair and reasonable. Therefore, the said provisions would be void as

offending Articles 14, 19 and 21 of the Constitution.

17. It is in this context that the Law Commission of Karnataka

proposes to examine advisability of the State invoking Article 252 (1) of

the Constitution instead of exercising of its own legislative power and

enacting an appropriate legislation of its choice according to the needs

and requirement of the State. The Law Commission feels concerned

 - 22 -

about the advisability of the State in invoking Article 252 (1) of the

Constitution. Therefore, the Commission shall examine the advantages

and disadvantages of the State invoking Article 252 (1) of the

Constitution.

18. The effect of passing a resolution under Art 252(1) is that

Parliament which has otherwise no power to legislate with respect to a

matter (in the State list which is the subject of the resolution) except as

provided under Arts 249 and 250, becomes entitled to legislate with

respect to it and the State legislature ceases to have power to make a law

relating to that matter, such matter being left entirely to Parliament to

legislate. It is as if such matter is lifted out of List II and placed in List I.

In Union of India v. Valluri Basaviah 1979 (3) SCC 324 the Supreme

Court has observed in para No.31 as follows:

“31. It is but axiomatic that once the

legislature of two or more States, by a resolution in

terms of Article 252(1), abdicate or surrender the area,

i.e., their power of legislation on a State subject, the

Parliament is competent to make a law relating to the

 - 23 -

subject. It would indeed be contrary to the terms of

Article 252(1) to read the resolution passed by the

State Legislature subject to any restriction. The

resolution, contemplated under Article 252(1) is not

hedged in with conditions.”

19. Resolutions of the State legislature are to the effect that a

particular matter in List II should be regulated by Parliament by law.

Hence the State’s power to legislate with respect to that matter is

surrendered to Parliament. Passing of a resolution on those lines is a

condition precedent for investing Parliament with legislative

competence to make a law on that matter. That is done when the

legislature thinks that it is desirable to have a parliamentary enactment

on that subject. Then pursuant to the resolution it is for the Parliament to

make the law in such manner as it deems fit, of course it has to be with

respect to that subject.

20. The State legislature would not indicate or propose the

terms of the legislation. It would only resolves that Parliament may

enact the law on the particular topic. The legislative policy and the
 - 24 -

legislation are then with Parliament. It is for Parliament to enact the law.

The question of Parliament enacting or making a law contrary to the

recommendation made in the resolution of the State legislature would

not arise. It would indeed be contrary to the terms of Art 252 (1) to read

the resolution as imposing any restriction. The resolution would not be

hedged in with any conditions. In making the law, Parliament is not

bound to exhaust the whole field of legislation. By virtue of the

resolution passed under Art 252(1) Parliament has plenary power to

make suitable legislation. Such legislation may be so structured as to be

capable of being effectively adopted by other States. cf. Valluri

Basaviah 1979 (3) SCC 324.

21. Any subject in the particular entry in List II not covered by

the resolution will continue to be within the legislative competence of

the State. It is significant to note that it is not with respect to the entire

content of an entry in the State list but only with respect to the subject

matter of the resolution under Article 252 (1) that Parliament is

empowered to legislate. What is surrendered would only be the subject

matter of the resolution which may be only a part of the entry. In

 - 25 -

respect of the remaining content of the entry the State Legislature would

retain its legislative competence. [See: Thumathi Venkaiah v. State of

AP (AIR 1980 SC 1568); Krishna Bhimarao Deshpande v. Land

Tribunal, Dharwad (AIR 1993 SC 883)]. For eg. Entry 18 of List II is

‘land ‘. The subject matter of resolutions pursuant to which the Urban

Land Ceiling Act was enacted was imposition of ceiling on urban

immovable property and acquisition of such property in excess of the

ceiling, but the Act was only in respect of vacant land in urban

agglomeration.

22. As the Supreme Court observed in M/s. R.M.D.C.

(Mysore) Pvt. Ltd v. The State of Mysore (AIR 1962 SC 594). “The

result ….. such Act, if passed by the Parliament, becomes applicable to

the States passing the resolution or adopting that Act. Sub clause (2) of

that Article provides that any such Act may be amended or repealed by

an Act of Parliament in the like manner, i.e, in the manner provided in

Clause (1) and it cannot be amended or repealed by the Legislature of

the State or States passing the resolution.” That such is the position

also flows from the recommendations of the Sarkaria Commission

 - 26 -

suggesting appropriate amendments to Article 252(2) which would

enable the State legislature to amend the Parliamentary law under

Article 252 provided the assent of the President is received thereto.

23. Article 252 confers power on the Parliament to legislate

for two or more States by consent and adoption of such legislation by

other States in regard to topics or subjects within the exclusive

competence of the State Legislature. Under entry 6 of State List II of

the Seventh Schedule to the Constitution, the State Legislature has

exclusive power to legislate on “Public Health and Sanitation –

Hospitals and Dispensaries”. The Parliament does not have any

legislative competence to enact a law on this subject over which only the

State Legislatures have legislative competence. Article 252 empowers

the Parliament to make a law on any of the matters in the State list if two

or more States request the Parliament through resolution passed by their

Legislature to enact a law. The law so passed by the Parliament will

apply to only those States which have passed resolutions requesting the

Parliament to enact such a law. If accordingly a law is enacted by the

Parliament such law may be adopted by any other State by passing

appropriate resolution in their Legislatures in that behalf. The law so

 - 27 -

passed by the Parliament cannot be amended or repealed by the

Legislatures of the State. In other words the States which request the

Parliament to enact a law loses the legislative competence in respect of

that particular topic.

24. Article 252 can be invoked to vest power in the Parliament

to enact a law on a subject over which it has no competence to legislate

and in respect of which only the State Legislatures have power to enact.

The only condition to be satisfied for transferring legislative power to

Parliament is passing of resolutions to that effect by the Legislatures of

two or more States. Any two or more States can invoke Article 252 (1).

The States need not even be contiguous. Mutual interest or benefit is

also not a necessary condition. There is no need for the requesting

States to agree on the object or wordings of the Act. It is enough to

agree on the subject or topic and not on the content of the Act.

Parliament is also not bound to enact a statute in tune with the wishes of

the State. The requesting State or States cannot get back the legislative

competence once given to the Parliament by passing resolutions in

accordance with Article 252.

 - 28 -

25. Article 252 is fairly similar to Section 103 of the

Government of India Act, 1935 and reads as follows:

“103. Power of Federal Legislature to

legislate for two or more Provinces by consent:

If it appears to the Legislatures of two or more

Provinces to be desirable that any of the matters

enumerated in the Provincial Legislative List should

be regulated in those Provinces by Act of the Federal

Legislature, and if resolutions to that effect are passed

by all the Chambers of those Provincial Legislatures,

it shall be lawful for the Federal Legislature to pass an

Act for regulating that matter accordingly, but any Act

so passed may, as respects any Province to which it

applies, be amended or repealed by an Act of the

Legislature of that Province”.

26. However, there is one important difference between

Article 252 of the Constitution and Section 103 of the Government of

India Act. Under Article 252 of the Constitution States cannot amend or
 - 29 -

repeal the Act passed by the Parliament under Article 252 (1) of the

Constitution, whereas, under Section 103 of the Government of India

Act, the Act passed by the federal Legislature can be amended or

repealed by an Act of State legislature.

27. The Supreme Court of India in the case of Union of India

and Ors. vs. Valluri Basavaiah Chowdhary & Ors reported in 1979 3

SCC 324 explained the scope and ambit of Article 252 as follows:

“The effect of the passing of a resolution under

clause (1) of Article 252 is that Parliament, which has no

power to legislate with respect to the matter which is the

subject of the resolution, becomes entitled to legislate with

respect to it. On the other hand, the State legislature

ceases to have a power to make a law relating to that

matter. While Article 263 provides for the creating of an

Inter-State Council for effecting administrative co-

ordination between the States in matters of common

interest, Article 252 provides the legislative means to

attain that object. After the enactment of a law by the

Parliament under this article, it is open to any of the other

 - 30 -

States to adopt the Act in such State cannot be from a date

earlier than the date of the resolution passed in the

legislature adopting the Act. The question as to whether

or not there is surrender by the State legislature of its

power to legislate, and if so, to what extent, must depend

on the language of the resolution passed under Article 252

(1): M/s. R.M.D. C. (Mysore) Private Ltd. V. State of

Mysore. Clause (2) specifically lays down that after

Parliament makes an Act in pursuance of the resolution,

such Act cannot be amended or repealed by the State

legislature even though the matter to which the Act of

Parliament relates was included in List II of the Seventh

Schedule of the Constitution”.

28. Thus the Supreme Court has clearly laid down that Parliament is

free to enact a law according to its own wisdom and is not bound to

enact a law precisely in terms expressed by the Legislatures of the States.

Parliament is a sovereign legislature and cannot be expected to act as a

rubber stamp of the State Legislatures.

 - 31 -

29. There is one great disadvantage in the State Legislature

invoking Article 252 (1) of the Constitution to empower the Parliament

to enact a law on a particular topic which is entirely within the

legislative competence of the State Legislature. The State may like to

have a law on a particular topic with a specific content. But the

Parliament may enact a law on the subject with a different content as it

is free to enact a law according to its own wisdom and is not bound by

the views of the State Legislature in regard to the actual content of the

legislation.

30. Once the Legislatures of the States pass resolutions under

Article 252 (1) they lose the power to legislate on that topic and cannot

retrieve that power. This is clear from the pronouncement of the

Supreme Court in the case of Thumati Ventaiah and Others vs. State

of Andhra Pradesh and others reported in 1980 (4) SCC 295, wherein

it is laid down as follows:

“The effect of passing of resolutions by the

Houses of Legislature of two or more States under this
constitutional provision is that Parliament which has
otherwise no power to legislate with respect to a
 - 32 -

matter, except as provided in Articles 249 and 250,

becomes entitled to legislate with respect to such
matter and the State Legislatures passing the
resolutions cease to have power to make law relating
to that matter. The resolutions operate as abdication
or surrender of the powers of the State Legislatures
with respect to the matter which is the subject of the
resolutions and such matter is placed entirely in the
hands of Parliament and Parliament alone can then
legislate with respect to it. It is as if such matter is
lifted out of List II and placed in List I of the Seventh
Schedule to the Constitution. This would seem to be
quite clear on a plain natural construction of the
language of Clauses (1) and (2) of Article 252 and no
authority is necessary in support of it, but if any was
wanted, it may be found in the decision of a Full Bench
of five Judges of this Court in Union of India v. V.V.
Chaudhary MANU/SC/0539/1979 : [1979]3SCR802 in
fact the same Bench as the present one-where an
identical view has been taken.”

This is the second disadvantage.

 - 33 -

31. If the conditions in the State change after passing of the

resolution and the State needs different kind of law, it can only make a

request to the Parliament to amend the law. The Parliament may accede

to such a request or refuse to accede to the request. Thus the State

would be at the mercy of the Parliament. This is the third disadvantage

from which the State would suffer by empowering the Parliament to

legislate under Article 252 (1). In the opinion of the Law Commission

the corresponding Section 103 of the Government of India Act better

safeguarded the interest of the State as it enabled the State Legislature to

amend or repeal the Act passed by the federal Legislature.

32. Once the State legislatures passed appropriate resolutions

under Article 252 (1) it has the effect of transferring the topic from the

State list to the Union List and the Parliament can amend or repeal the

Act in such manner as the Parliament deems fit and the State

Legislatures have no control over it whatsoever. Sub-Article (2) of

Article 252 provides that any Act so passed by the Parliament may be

amended or repealed only by an Act of Parliament or adopted in like

manner but shall not, as respects any State to which it applies, be

 - 34 -

amended or repealed by an Act of the Legislature of that State. The

expression “in like manner” has been interpreted by the Speaker of Lok

Sabha as could be seen from the Lok Sabha Speaker’s ruling extracted

in the book “Commentary on the Constitution of India” by M.P. Jain

which reads as follows:

“The parliamentary law passed under

Art.252 (1) may be amended or repealed by an Act

of Parliament passed or adopted in like manner

and not by the State Legislature. The speaker of

the Lok Sabha has held that the previous

permission of the States would be necessary to

amend the Central Act because, according to

Art.252 (2) amending legislation was to be passed

in “like manner” as the original legislation which

meant that authorization from the State for the

amendment was also necessary. The Speaker

overruled the Government’s view that once the

State Legislatures authorised Parliament to

 - 35 -

legislate on a subject, and a law was passed by

Parliament, it was authorised to amend the law

without seeking States, authority again. The

Speaker held that the jurisdiction vested in

Parliament expired where once Act was passed in

pursuance of the State authorization, and fresh

consent of the State would be necessary for

amending the original Act. This means that if the

State Legislature do not give the necessary consent

to amend or repeal the earlier Act, in the same

manner laid down in clause (1) neither Parliament

nor the State Legislature have power to amend or

repeal the Act under clause (2)”.

33. It is difficult to accept this view of the Speaker as it is

clearly in conflict with the law laid down by the Supreme Court that the

Parliament gets exclusive power to pass any law on that topic which

includes power to amend or repeal such law according to its own

discretion. The view of the Speaker is opposed to the law laid down by

the Supreme Court and cannot therefore be accepted. The expression

 - 36 -

“in like manner” does not mean that fresh resolutions are needed to

amend or repeal the Act.

34. It is also difficult to agree that the Parliament is bound to

pass legislations in accordance with the resolutions of the State

Legislature. The Parliament is a sovereign body and cannot be expected

to act as a rubber stamp and enact a law precisely on the lines indicated

in the resolutions of the State Legislature. Once the State Legislatures

pass resolutions under Article 252 (1) of the Constitution and confer

power on the Parliament on the particular subject they abdicate their

power in favour of the Parliament. They lose their power to enact a law

on that topic once and for all.

35. Therefore, it is obvious that there are more disadvantages

than advantages in the State surrendering its Legislative power in favour

of parliament by invoking Article 252 (1) of the Constitution. The Law

Commission therefore recommends that the disadvantages discussed

above being quite serious they should be taken into consideration by the

State Legislatures before surrendering its sovereign legislative power in

favour of the Parliament under Article 252 (1) of the Constitution.

 - 37 -

36. So far as the Act is concerned it was not enacted on the

basis of resolutions passed by the Legislature of Karnataka. The

Karnataka State Legislature only passed resolutions adopting the Act

that was already passed by the Parliament on the request of other States.

Karnataka State has only adopted the Act.

37. On passing of the resolutions by all the Houses of the

Legislatures of States of Goa, Himachal Pradesh and West Bengal in

accordance with clause (1) of Article 252 of the Constitution seeking

amendment of the Transplantation of Human Organs Act, 1994, the

Parliament has enacted the Transplantation of Human Organs

(Amendment) Act, 2011 (Act No.16 of 2011) making several

amendments to the original Act, copy of which is appended as

Appendix-5. The amending Act however would not be applicable to

the State of Karnataka unless it is adopted by the State of Karnataka in

accordance with Article 252 of the Constitution.

38. Inspite of diligent research, the Law Commission could

not find any materials to show that the amending Act 16 of 2011 has

been adopted by the State of Karnataka in accordance with Article 252

 - 38 -

of the Constitution. When the Law Commission wrote to the Secretary,

Dept. of Parliamentary Affairs and Legislature, Government of

Karnataka on 23rd October, 2013 enquiring if the amending Act has

been adopted by the State of Karnataka it has not received any response

in writing. The Commission however was orally informed by the

concerned officials that they have not been able to find any materials to

indicate that the amending Act has been adopted by the State of

Karnataka. In these circumstances, it appears that the amending Act has

not been adopted by the State of Karnataka. However, our opinion in

this report about adopting the original Act would govern the amending

Act also.

39. We shall now examine the effect of adoption of the Act

already passed by the Parliament invoking Article 252 (1) of the

Constitution. The first part of Article 252 speaks of empowering the

Parliament to legislate on matters which are within the competence of

the State Legislature on passing of resolutions by all the Houses of the

Legislatures of two or more States requesting the Parliament to enact an

appropriate law on the specified matters. The second aspect dealt with
 - 39 -

relates to adoption of the law so enacted by other States. It provides for

adoption of such laws by passing resolutions to that effect by all the

Houses of the Legislatures of that State. We have discussed above, the

disadvantages from which the State would suffer in cases where

Parliament enacts a law on the subject in respect of which it has no

legislative competence but on the request made by the legislatures of

two or more States as provided under Article 252 (1) of the Constitution.

As a matter of fact the Legislature of the State of Karnataka did not pass

any resolution requesting the Parliament to enact a law on the subject of

Transplantation of Human Organs Act. The Act as already noted was

enacted by the Parliament on the passing of the resolutions by the

Legislatures of the States of Goa, Maharashtra and Himachal Pradesh.

After such an Act was passed, both the Houses of the State of Karnataka

passed resolutions in accordance with Article 252 and adopted the said

Act. The above discussion is only for the future and in the nature of

advisory, cautioning the State about the disadvantages of invoking

Article 252 to request the Parliament to enact a law on a subject

exclusive within the competence of State Legislatures. So far as the

 - 40 -

State of Karnataka is concerned the Act became applicable only by the

process of adoption as per Article 252 (1) of the Constitution.

40. Therefore, we shall now examine the scope and effect of

adoption of the act under Article 252 (1) of the Constitution which is

relevant for the present purpose of providing a better law to regulate

Human organ transplantation with the object of saving the lives of those

needing human organ transplantation and at the same time protecting the

interests of the giver of the organ in every way health wise, money wise

and ethics wise.

41. Article 252(2) says that any Act so passed by the

Parliament may be amended or repealed by the Act of Parliament passed

or adopted in like manner but shall not in respect of any State to which

it applies be amended or repealed by an Act of the Legislature of that

State. So far as the adopting State is concerned if the adopted Act is

amended or repealed by the Parliament after adoption, subsequent

amendment or repeal shall not apply to the adopting State. If the State

wants to adopt the subsequent amendment or repeal made by the

Parliament, Legislatures of the State have to pass fresh resolutions for

 - 41 -

that purpose. The reason for this is obvious. The adopting State does

not transfer its legislative competence to the Parliament. The meaning

of the word ‘adopt’ in the context according to Major Law Lexicon by P.

Ramanatha Iyer, 4th Edition, “Adopt” means “Distinguished from

‘enact’. To enact implies the creating of a new law which did not exist

before; but, ‘adopt’ no doubt implies the making that their own which

was created by another”. Therefore, it is clear that when the legislature

merely adopts a provision found in another enactment it does not lose its

legislative competence to enact a law on the topic on which it has

adopted another law. The adoption is made not by an Act of Legislature

but by resolutions passed by all the Houses of the Legislature. By

adoption the legislature does not transfer its power of legislation on that

topic to the Parliament. It is significant that assent of the Governor

which is essential for the process of enactment is not necessary for the

purpose of adoption. By using the expression “in like manner” in

Article 252(2) it is made clear that the procedure prescribed for adoption

has to be followed again if the State decides to adopt the subsequent

amendment or repeal of the Act made by Parliament.

 - 42 -

42. Article 367 (1) of the Constitution provides that unless the

context otherwise requires, the General Clauses Act, 1897, shall, apply

for interpretation of this Constitution. Therefore, Section 21 of the

General Clauses Act gets attracted. Section 21 of the General Clauses

Act provides that where, by any (Central Act) or Regulation, a power to

(issue notifications) orders, rules, or bye-laws is conferred, then that

power includes a power, exercisable in the like manner and subject to

the like sanction and condition (if any), to add to, amend, vary or rescind

any (notifications), orders, rules or bye-laws so (issued). Section 21 of

the General Clauses Act prescribes a rule of construction and would be

applicable to enactments. Therefore, the power conferred on the State

by Article 252 to adopt the Central Act includes the power to rescind the

adoption by following the very procedure that is required to be followed

for adoption. Therefore, if the Central Act could be adopted by passing

of resolutions by all Houses of the legislature to that effect the adoption

can be revoked by following a similar procedure that is by passing

appropriate resolutions by all the Houses of the Legislatures to withdraw

the adoption. Once that is done the State would be free to enact a law of

its choice to regulate transplantation of Human Organs.

 - 43 -

43. There are three aspects which are dealt with by Sub-

Article (1) of Article 252. The first is that an Act can be passed by the

Parliament only in pursuance of the resolutions passed by all the Houses

of the Legislatures of two or more States requesting it to pass an Act on

the particular topic which is exclusively within the States competence.

The second is that it can be amended or repealed only by the Parliament

passing an Act in that behalf. The third is that the amendment or repeal

of the Act by the Parliament does not automatically apply to the

adopting State. It can be adopted by the adopting State in the same

manner in which they adopted the Act.

44. When the law made by the Parliament under Article 252 is

adopted by the State it cannot be amended or repealed by the

Legislatures of the adopting State. The question then arises is as to what

the adopting State can do if subsequently the adopting State finds its

necessary to amend the Act or repeal the Act in so far as the adopting

State is concerned. So far as the States which have requested the

Parliament to enact a law are concerned they lose the power to legislate

on that particular topic and therefore they cannot complain about the Act
 - 44 -

or its amendment even if they don’t like it. So far as the adopting State

is concerned it retains legislative competence as it has not made request

to the Parliament to enact a law in regard to matters over which

exclusive competence to enact a law. What the adopting State does is

only to look into the provisions of the Act passed by the Parliament

under Article 252 (1) and if it feels satisfied with the Act it can take a

decision to adopt the Act made by the Parliament. Of course the State

has the choice to pass an Act in terms of the enactment passed by the

Parliament or to adopt the Act. In either case the adopting State will not

lose its Legislative competence to enact any law of its choice. The

effect of Article 252 is that it cannot exercise the power to amend or

repeal only during the period when the adopted Act is in force.

Sub-Article (2) of Article 252 provides that the adopting State cannot amend

or repeal the parliamentary enactment. It must be remembered that the

adopting State continues to have legislative competence to enact an

appropriate Act as that power is not conferred on the parliament except

that it cannot exercise that the Legislature power as long as the adoption

by the State remains in force. The question then arises as to how the

State can in the circumstances exercise its power of legislation if it finds

 - 45 -

it necessary to do so. The legislative power of the State which is not lost

by adoption cannot be frustrated. It only remains suspended during

subsistence of the adoption. It must be remembered that the process of

adoption is a unilateral Act and does not depend upon the permission,

consent or approval of the parliament. As a matter of fact the State

Legislature is not even required to inform that it has adopted the

parliamentary enactment. Only by way of courtesy and appropriateness

that it may do so. As the adopting Act is a unilateral Act of the State

Legislature it doesn’t lose the power to retrace its steps and de-adopt or

revoke the adoption. There is nothing in Article 252 that comes in the

way of withdrawing adoption. As the adoption made by passing

resolution by all the Houses of the Legislature in that behalf it is obvious

that the withdrawal of adoption can also be made by all the Houses of

the Legislature similarly passing resolutions to that effect. Once such

step is taken the adopting State would be free to pass any Act of its

choice within limits of its Legislative competence under the relevant

entry. As the Karnataka Legislature is the adopting State, the Law

Commission is of the opinion that it can take steps as suggested above to

revoke the adoption.

 - 46 -

45. Therefore, the Commission is of the considered view that

first step to be taken would be to revoke adoption of the Act by

following the procedure indicated above. This has to be followed by

enactment of a very satisfactory and comprehensive law to regulate

human organ transplantation. Naturally there would be some time gap

between the date of revocation of adoption of the Act and enactment of a

comprehensive law on the subject. As there would be no law to regulate

human organ transplantation during the ‘gap period’ it would give scope

for malpractices in the matter of transplantation. To prevent the same

the Law Commission recommends that a proper executive order to

regulate organ transplantation during the interregnum should be kept

ready and promulgated immediately on revocation of adoption of the

Act which should be in force until the State enacts a law on the subject.

46. The Commission has in the earlier paragraphs pointed out

how the Act adopted by the State of Karnataka denies the right to life of

persons suffering from serious kidney disease and needing kidney

transplantation as it prevents receiving kidneys from willing strangers

 - 47 -

for proper consideration and is therefore arbitrary and discriminatory

violating Article 14, 19 and 21 of the Constitution.

47. Besides, the Act is defective in many other ways and does

not even provide adequate machinery to protect the interest of the givers,

health wise and money wise. The most important aspect of providing an

effective procedure and machinery for cadaver transplant etc., has also

not received due attention. Therefore, there is an urgent need for the

State to examine the entire matter quite comprehensively and enact a

suitable law to regulate transplant of Human Organs to protect the

precious fundamental right to life after due consultation with expert

professionals and other stake holders.

RECOMMENDATIONS

48. For the reasons stated above, the Law Commission of

Karnataka makes the following recommendations.

I. That the Legislature of the State should take into

consideration the several disadvantages in

invoking Article 252 (1) of the Constitution

discussed in para Nos.29 to 35 of this report before

 - 48 -

deciding whether to request or not the Parliament

to enact a law on any topic within the exclusive

competence of the State Legislature under State

List II of VII Schedule to the Constitution.

II. As the adopted Act is not just, fair and reasonable

to protect the interest of persons suffering from

Kidney failure and needing kidneys for

transplantation, the Law Commission recommends

to withdraw adoption of the Act by both the

legislatures of the State passing resolutions to that

effect.

III. The Law Commission further recommends that

after withdrawing the adoption of the Act the State

shall take steps to enact a comprehensive and

satisfactory law to regulate transplant of Human

Organs after proper consultation with experts and

all stake holders.

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APPENDIX-
APPENDIX-5

Page No. XXI

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Page No. XXII

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Page No. XXIII

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Page
Page No. XXIV
XXIV
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Page No. XXV

XXV
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XXVI
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Page No. XXVI

XXVII
VII
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Page No. XXV

XXVIII
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Page No. XXIX

XXIX

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