MCC-J

CHETTINAD INTER MOOT COURT COMPETITION, JURIS

CHETTINAD SCHOOL OF LAW, KELABAKKAM

IN THE HON’BLE SUPREME COURT

WRIT JURISDICTION

UNDER ARTICLES 32 AND 139A OF THE CONSTITUTION OF INDIA

SHIVANSH

V.

ROSHINI

ON SUBMISSION TO THE REGISTRY OF THE COURT OF THE

HON’BLE SUPREME

MEMORIAL FOR THE RESPONDENT - Union of Ananisthan

MEMORIAL ON BEHALF OF THE

 TABLE OF CONTENTS

INDEX OF AUTHORITIES......................................................................................................3
STATEMENT OF FACTS........................................................................................................7
STATEMENT OF ISSUES......................................................................................................10
SUMMARY OF ARGUMENTS.............................................................................................11
ARGUMENTS ADVANCED.................................................................................................13
PRAYER..................................................................................................................................27

MEMORIAL ON BEHALF OF THE RESPONDENT 2

 INDEX OF AUTHORITIES

A. TABLE OF CASES

Sl. No. Name & Citation of Case

1

8
9
10
11

12
13
14

B. TEXT BOOKS

SL. NAME OF THE AUTHOR PUBLICATION Edn.

BOOK
NO /YEAR

MEMORIAL ON BEHALF OF THE RESPONDENT 3

 4 ADMINISTRATIVE H.W.R. WADE, OXFORD 11TH Edn.
LAW
C.F. FORSYTH
5 THE CONSTITUTION P.M. BAKSHI UNIVERSA LAW 9TH Edn.
OF INDIA PUBLISHING
CO. 2009
6 GUIDE TO MEDICAL LAWMANN’S Edn.
LAWS
2010
7 LECTURES ON C.K. TAKWANI EASTERN BOOK 5TH Edn.
ADMINISTRATIVE COMPANY
LAW 2012

8 CONSTITUTIONAL J.N. PANDEY EASTERN BOOK 2012

LAW COMPANY

9 ORGAN AND Dr. YVON MARTINUS 1ST Edn.

TISSUE ENGLERT NIJHOFF
TRANSPLANTATIO PUBLISHERS 1995
N IN THE
EUROPEAN UNION

10 LAW, ETHICS, AND P.D.G. SKEGG CLARENDON 1ST Edn.

MEDICINE PRESS 1984

C. JOURNALS

Author Title Publication/Journal

Mufti Mohammed Zubair Organ Donation and Institute of Islamic
Butt Transplantation in Islam Jurisprudence
Ngah A.C. Organ Transplantation Formosan Journal of Medical
in Malaysia: A Socio- Humanities
legal
Study

D. DYNAMIC LINKS

www.indiankanoon.org

www.supremecourtofindia.nic.in

MEMORIAL ON BEHALF OF THE RESPONDENT 4

www.notto.gov.in

https://www.bbc.co.uk/religion/religions/hinduism/hinduethics/organdonation.shtml

MEMORIAL ON BEHALF OF THE RESPONDENT 5

 STATEMENT OF JURISDICTION

The respondent humbly submits this memorial before the Hon’ble Supreme Court , in reply
to the petition filed by the petitioners before this Hon’ble Court. This memorial is a reply to
the petition invoking Articles 32 (right to move the Supreme Court for the enforcement of
Fundamental Rights under Part III of the Constitution) and 139A (Transfer of cases pending
before the High Court(s) to the Supreme Court) of the Constitution of , and sets forth the
facts, provisions of law and arguments to establish before this Hon’ble Court that the claims
are not maintainable.

MEMORIAL ON BEHALF OF THE RESPONDENT 6

 STATEMENT OF FACTS

1. Ananisthan is a democratic republic with a federal system in South Asia, having a

population of 1.3 billion. Also known as the Republic of Ananisthan, it is the seventh-
largest country by area, the second-most populous country, and the most populous
democracy in the world. The Constitution, laws, institutions and social ethos of
Ananisthan are substantially similar to that of India.

2. Ananisthan is a developing country and it has shown tremendous growth in every

field, especially healthcare, in the past 3-4 decades. The most notable development in
the field of healthcare can be seen in the facilities the country offers in organ
transplantation. The first kidney transplantation in Ananisthan took place in May
1965. Since then, Ananisthan has been a leading country in the field of transplantation
in the Asian sub-continent.

3. Ananisthan enacted a legislation in the year 1994 (Transplantation of Human Organs

Act) foreseeing the possible commercial exploitation of people for organ harvesting.
The Act prohibited commercial transactions in human organs. The regulations under
the Act, to an extent, resulted in reducing the number of transplantation surgeries in
Ananisthan and it proved to be of no use in facilitating organ transplantations. The
Act was amended in 2011 thereby defining and including ‘brain-stem death’ as a
criterion for organ harvesting. The procedure to be followed in order to ascertain if
the person is brain dead was laid down in the Rules made in pursuance of the said
provisions.

4. Introduction of brain stem death gave a new momentum to the transplantation

surgeries in Ananisthan. The following years witnessed a tremendous increase in the
number of transplantation surgeries taking place in Ananisthan. The success rates of
transplantation surgeries attracted a number of wealthy tourists to Ananisthan for
transplant surgery, which in turn resulted in the inflow of foreign money into
Ananisthan. Along with harvesting of organs from the brain dead persons, the statute
also gave thrust to living donations, with certain regulations prescribed under the Act.

MEMORIAL ON BEHALF OF THE RESPONDENT 7

5. Nyayasthan is a state located in the southwestern coast of Ananisthan. The state is
known for its maximum literacy rates, educational institutions, beautiful beaches and
hill stations. Nyayasthan is also well known for its excellence in modern medicine as
well as other recognized medical systems and indigenous medical practices.

6. Amit, who was a daily wage labourer met with an accident, and was taken to the City
Government Hospital in the commercial capital city of Nyayasthan and was soon
referred to RLVM Super-Speciality hospital. Amit was diagnosed with traumatic
brain injury and needed a surgery which was estimated to cost around INR 5 Lakh
rupees. His family consisted of his old and ailing mother, uneducated and unemployed
wife and two school going kids. A stranger, met at the hospital, after seeing the plight
of the family advised Mrs. Amit that she can meet the expenses of her husband’s
treatment if she is willing to donate a kidney of hers. Mrs. Amit readily agreed to that
offer as she had no other way to raise the required amount. The stranger introduced
her to another man who offered 5L for her kidney. Both the surgery dates were fixed
and an intended recipient was flown to the hospital from a foreign country.

7. NEETHI, an NGO working locally, came to know about the transactions involved in
human organs, approached the High Court of Nyayasthan for a direction for proper
implementation of the statute as it has failed to prevent commercial transactions in
human organs.

8. A Government Neurologist, Dr. Vasundhara Das filed a Writ Petition in the High
Court of Nyayasthan seeking an order to probe into the certification of brain stem
deaths by the private hospitals in the state. While the matter was pending before the
HC of Nyayasthan, the Government of Nyayasthan issued a Govt. order providing
strict guidelines to be followed by hospitals while certification of brain stem death is
carried on.

9. Meanwhile, a famous playback singer Gautham, was diagnosed with kidney failure
and was admitted in the RLVM Hospital. He was advised for immediate kidney
transplantation. His name was also included in the list of recipients prepared by the
Govt. of Nyayasthan, which would take a minimum of 2 years before getting the

MEMORIAL ON BEHALF OF THE RESPONDENT 8

 matching organ for transplantation. In the hospital, he was also approached by a
stranger offering him to provide with the required organ for INR 30 Lakhs. Knowing
about the real situation involved in the transplantation scenario, he approached the
High Court of Nyayasthan stating that his right to health is affected; thereby his right
to life is endangered as the state is unable to facilitate the organ transplantation
surgeries. He pleaded the High Court to issue a direction to the State to protect his
right to health. He also added in his petition that he is approaching the Court because,
being a law abiding citizen, he does not want to violate laws and procure kidney for
himself on payment of money.

10. High Court of Nyayasthan decided to consider all these matters together. Meanwhile,
Union parliament amended the Transplantation Act laying down the procedure to be
followed for the certification of brain stem death. The amendment also added another
provision that the body of the brain stem dead persons can be used by the State to
harvest the transplantable organs in the most effective way.

11. This amendment led to mixed responses in the society. On the one hand it was argued
that, by harvesting organs from the brain dead persons, the state would facilitate
equitable distribution of human organs thereby ensuring equality. It will also increase
the availability of organs for transplantation. On the other side, it was also argued that
the new amendment takes away the personal autonomy and bodily integrity of the
individuals. It also hurt the religious sentiments of various sections of the society.

12. Peoples Union for Health Rights (PUHR), an NGO working in the healthcare sector in
Ananisthan, approached the Supreme Court of Ananisthan challenging the
constitutional validity of the amendment. Supreme Court of Ananisthan took the
matter in file and called for all the cases pending before the High Court on the same
subject matter.

MEMORIAL ON BEHALF OF THE RESPONDENT 9

 STATEMENT OF ISSUES

ISSUE I: Whether the petition filed invoking Articles 32 and under 139A of the
Constitution of Ananisthan is maintainable in the Supreme Court of
Ananisthan?

ISSUE II: Whether the irregularities in the procedure to be followed in organ

transplantation as laid down in the Amendments to the Transplantation of
Human Organs Act, 1994 and its allied rules is in violation of Article 14 of the
Constitution of Ananisthan?

ISSUE III: Whether the State has violated Article 21 of the Constitution of Ananisthan by
amending the Transplantation of Human Organs and Tissues Act, 1994 and by
failing to protect the right to life of patients, especially those suffering from
end-stage organ failure?

ISSUE IV: Whether the Amendments to the Transplantation of Human Organs Act, 1994
and its allied rules are in violation of Article 25 of the Constitution of
Ananisthan?

MEMORIAL ON BEHALF OF THE RESPONDENT 10

 SUMMARY OF ARGUMENTS

I. The petition filed invoking Articles 32 and under 139A of the Constitution of
Ananisthan is not maintainable in the Supreme Court of Ananisthan.

1. Alternate Remedy - The Supreme Court of Ananisthan is not the appropriate

forum in the instant case.
2. Subsequent Developments
3. No violation of any Fundamental Rights

II. There are no irregularities in the procedure to be followed in organ

transplantation as laid down in the Amendments to the Transplantation of
Human Organs Act, 1994 and its allied rules, and hence, are not in violation of
Article 14 of the Constitution of Ananisthan.

1. Stringent Procedure for Organ Transplantation

2. Medical Practitioners are Duty Bound to follow Certain Rules

III. The State has not violated Article 21 of the Constitution of Ananisthan by
amending the Transplantation of Human Organs and Tissues Act, 1994 and has
not failed to protect the right to life of patients including those suffering from
end stage organ failure.

1. Existence of a Just and Reasonable Procedure Established by Law

2. Widening Role of the State from Negative Police State to Modern Welfare
State

IV. The Amendments to the Transplantation of Human Organs Act, 1994 and its
allied rules are not in violation of Article 25 of the Constitution of Ananisthan.

1. Article 25 is Subject to Public Order, Morality and Health

2. No religion Completely Prohibits Organ Transplantation
3. The Concept of ‘Daan’ in Hindu Law

MEMORIAL ON BEHALF OF THE RESPONDENT 11

4. Organ Donation in Muslim Law is not Completely Prohibited by the Qur’an or
Hadith.

MEMORIAL ON BEHALF OF THE RESPONDENT 12

 ARGUMENTS ADVANCED

I. The petition filed invoking Articles 32 and under 139A of the Constitution of
Ananisthan is not maintainable in the Supreme Court of Ananisthan.

Alternate Remedy - The Supreme Court of Ananisthan is not the appropriate

forum in the instant case

The two writ petitions filed by the petitioners NEETHI, an NGO working locally,
claiming that commercial transactions were rampant in the State of Nyayasthan; and
Gautham, the end-stage organ failure patient who had been offered a kidney in return
for Rs. 30 lakhs, both these are not maintainable because the Supreme Court is not the
appropriate forum for entertaining these claims. It was held in the case of Khan v.
State of Rajasthan (1972) 1 , that where a statutory remedy was available to the
aggrieved person, the Supreme Court may decline to interfere. This is because the
valuable judicial time must be spared and used for cases where there is an immediate
relief needed, or in appeals where the lower courts had already conducted the trial.
The alternate remedy for illegal dealings in human organs is laid down under Sections
18 and 19 of the Transplantation of Human Organs and Tissues Act, 1994. Moreover,
Section 22 of the Transplantation of Human Organs and Tissues Act, 1994 goes as
follows:

“22. Cognizance of offences.—(1) No court shall take cognizance of an offence under

this Act except on a complaint made by—
(a) the Appropriate Authority concerned, or any officer authorized in this behalf by
the Central Government or the State Government or, as the case may be, the
Appropriate Authority; or;
(b) a person who has given notice of not less than sixty days, in such manner as may
be prescribed, to the Appropriate Authority concerned, of the alleged offence and of
his intention to make a complaint to the court.
(2) No court other than that of a Metropolitan Magistrate or a Judicial Magistrate of
the first class shall try any offence punishable under this Act.

1 (1972) 2 SCC 327

MEMORIAL ON BEHALF OF THE RESPONDENT 13

(3) Where a complaint has been made under clause (b) of sub-section (1), the court
may, on demand by such person, direct the Appropriate Authority to make available
copies of the relevant records in its possession to such person.”

The objective of imposing restrictions as under Section 22 are to ensure that no

baseless claims are entertained in the Courts of law. The petitioners NEETHI and
Gautham should have filed a case in the Court of the Judicial Magistrate after giving a
notice to the Appropriate Authority. There is an alternate remedy, that of punishing
the offenders, if at all they committed an offence as alleged by the petitioners. Hence
the petitions filed by these two petitioners are not maintainable.

NEETHI approached the High Court of Nyayasthan for proper implementation of the
statute as it believes it to have failed to prevent commercial transactions in human
organs. The prime objective of Transplantation of Human Organs and Tissues Act,
1994 is to prevent commercial transactions in human organs. And it has been success
with regard to that as per the facts. Section 3 of the THOA, 1994 contains the details
regarding the ‘Authority for removal of human organs’, Section 9 lays down the
‘Restrictions on removal and transplantation of human organs’, Section 10 deals with
‘Regulation of hospitals conducting the removal, storage or transplantation of human
organs’, Section 11 states about ‘Prohibition of removal or transplantation of human
organs for any purpose other than therapeutic purposes’, Section 13 lays down the
functions to be carried out by the appropriate authority, details of registration of
hospitals carrying out transplantation are laid down under Sections 14, 15 and 16.
Offences and penalties for violating the provisions laid down under THOA are
contained in Chapter VI. In the presence of such an elaborate Act containing penalty
which can go up to Rs. 1 crore, there is practically zero chance of any commercial
transaction taking place. Hence the allegations of NEETHI are baseless and are not
maintainable.

The facts relating to the allegations relating to commercial transactions of human

organ amounting to a criminal offence have not been tested for evidence. In other
words it should have been the criminal courts which the Petitioners should have
approached instead of approaching the SC. Since no criminal court has conducted

MEMORIAL ON BEHALF OF THE RESPONDENT 14

trial, there is no evidentiary value to the facts, and hence the petitions are not
maintainable.

Subsequent Developments

The writ petition by Dr. Vasundhara Das, a government neurologist, questioning the
procedure of certification of brain-stem deaths followed by the private hospitals of the
State is no more an issue because while the matter was pending before the HC of
Nyayasthan, Government of Nyayasthan issued a Govt order providing strict
guidelines to be followed by hospitals while certification of brain stem death is
carried on. Hence, this petition is also no more maintainable in the Hon’ble Supreme
Court of Ananisthan.

No violation of any Fundamental Rights

PUHR, an NGO working locally in health sector in Ananisthan approached the SC of

Ananisthan challenging the constitutional validity of the Amendment. The
amendment is neither violating the fundamental rights guaranteed under the
Constitution nor is the Amendment Act ultra vires the parent act. Hence PUHR
challenging the constitutional validity is baseless and the petition filed under Article
32 is not maintainable.

MEMORIAL ON BEHALF OF THE RESPONDENT 15

 II. There are no irregularities in the procedure to be followed in organ
transplantation as laid down in the Amendments to the Transplantation of
Human Organs Act, 1994 and its allied rules, and hence, are not in violation of
Article 14 of the Constitution of Ananisthan.

Stringent Procedure for Organ Transplantation

There are stringent procedures laid down under the Transplantation of Human Organs and
Tissues Rules, 2014. Under the Transplantation of Human Organs and Tissues Rules, 2014,
donors and recipients have to be registered on a network which has been termed as Human
Organs and Tissues Removal and Storage Networks. Rule 31 (4) Clauses (d) and (e) lays
down the criteria for prioritizing the recipients, which is as follows:

"(d) all recipients are to be listed for requests of organs from deceased donors, however
priority is to be given in following order, namely:-

(i) those who do not have any suitable living donor among near relatives;

(ii) those who have a suitable living donor available among near relatives but the donor has
refused in writing to donate; and

(iii) those who have a suitable living donor available and who has also not refused to donate
in writing;

(e) sequence of allocation of organs shall be in following order:

State list ---- Regional List ----- National List ---- Person of Indian Origin Foreigner

The State has formulated these rules for ensuring that a reasonable classification is made
based on an intelligible differentia, that of geography, ranging from natives of a State, to
Region, and then the Nation, Persons of Indian Origin and finally, the foreigners. The
objective behind this classification is to protect those potential recipients within the same
territory by giving them required organs on a higher priority basis. It was held in the case of
Purshottom v. Desai (1955)2 that classification on the basis of geography is valid. The fact
that foreigners have been receiving organs by bypassing this sequence3 is unfortunate, yet it
is very rare, as like the averments of the Petitioners, they have been reported in a few

2 2 SCR 887(902); AIR 1956 SC 20

3 Paragraph 4 of the Moot Proposition.

MEMORIAL ON BEHALF OF THE RESPONDENT 16

instances. The facts4 state that wealthy tourists have been visiting Ananisthan for undergoing
organ transplants, and if they have been inducing donors within Ananisthan including the
State of Nyayasthan, they will be punishable under Section 20 of the Transplantation of
Human Organs and Tissues Act, 1994.

The Human Organs and Tissues Removal and Storage Networks in Ananisthan have been set
up at the National Level (NOTTO) 5 , Regional Levels (ROTTO) 6 and the State Levels
(SOTTO)7. These organizations work hand in hand to ensure that the priority list as per Rule
31 is maintained, and that potential recipients who are in demand for organs are able to
achieve their transplant as quickly and as effectively as possible. This ensures equality
although there is a classification which is reasonable (based on geography) as the recipients
will always have a priority in the State, and region in which they belong. Hence the State is
protecting the right under Article 14, that of equality before law, and equal protection of the
law.

Medical Practitioners are Duty Bound to follow Certain Rules

Under Rule 5 of the Transplantation of Human Organs and Tissues Rules, 2014, which lays
down the duties to be followed by medical practitioners in cases where organ transplantation
is to be performed, clauses (e) and (f) are of utmost relevance in the instant case because
these are the duties to be followed when the donors and recipients are not near relatives.

"(e) that in case of a donor who is other than a near relative and has signed Form 3 and
submitted an application in Form 11 jointly with the recipient, the permission from the
Authorisation Committee for the said donation has been obtained;

(f) that if a donor or recipient is a foreign national, the approval of the Authorisation
Committee for the said donation has been obtained;"

Rule 7 deals with the role of the Authorization Committee, sub-sections (2) and (3) are of
utmost relevance here:

"(2) When the proposed donor or recipient or both are not Indian nationals or citizens
whether near relatives or otherwise, the Authorisation Committee shall consider all such

4 Paragraph 4 of the Moot Proposition

5 National Organ and Tissues Transplant Organization
6 Regional Organ and Tissues Transplant Organizations
7 State Organ and Tissues Transplant Organizations

MEMORIAL ON BEHALF OF THE RESPONDENT 17

requests and the transplantation shall not be permitted if the recipient is a foreign national
and donor is an Indian national unless they are near relatives.

(3) When the proposed donor and the recipient are not near relatives, the Authorisation
Committee shall,-

(i) evaluate that there is no commercial transaction between the recipient and the donor and
that no payment has been made to the donor or promised to be made to the donor or any
other person;

(ii) prepare an explanation of the link between them and the circumstances which led to the
offer being made;

(iii) examine the reasons why the donor wishes to donate;

(iv) examine the documentary evidence of the link, e.g. proof that they have lived together,
etc.;

(v) examine old photographs showing the donor and the recipient together;

(vi) evaluate that there is no middleman or tout involved;

(vii) evaluate that financial status of the donor and the recipient by asking them to give
appropriate evidence of their vocation and income for the previous three financial years and
any gross disparity between the status of the two must be evaluated in the backdrop of the
objective of preventing commercial dealing;

(viii) ensure that the donor is not a drug addict;

(ix) ensure that the near relative or if near relative is not available, any adult person related
to donor by blood or marriage of the proposed unrelated donor is interviewed regarding
awareness about his or her intention to donate an organ or tissue, the authenticity of the link
between the donor and the recipient, and the reasons for donation, and any strong views or
disagreement or objection of such kin shall also be recorded and taken note of."

This shows that there are strict rules, which are impermeable and if violated, the discrepancy can be
found from the records. If these rules are violated and organs are transplanted, there is strict
punishment as laid down under Sections 18 and 19, which are follows:

MEMORIAL ON BEHALF OF THE RESPONDENT 18

“18. Punishment for removal of human organ without authority.— (1) Any person who
renders his services to or at any hospital and who, for purposes of transplantation, conducts,
associates with, or helps in any manner in, the removal of any human organ without
authority, shall be punishable with imprisonment for a term which may extend to ten years
and with fine which may extend to twenty lakh rupees.
(2) Where any person convicted under sub-section (1) is a registered medical practitioner,
his name shall be reported by the Appropriate Authority to the respective State Medical
Council for taking necessary action including the removal of his name from the register of
the Council for a period of three years for the first offence and permanently for the
subsequent offence.
(3) Any person who renders his services to or at any hospital and who conducts, or
associates with or helps in any manner in the removal of human tissue without authority,
shall be punishable with imprisonment for a term which may extend to three years and with
fine which may extend to five lakh rupees.

19. Punishment for commercial dealings in human organs.—Whoever—

(a) makes or receives any payment for the supply of, or for an offer to supply, any human
organ;
(b) seeks to find a person willing to supply for payment any human organ;
(c) offers to supply any human organ for payment; or
(d) initiates or negotiates any arrangement involving the making of any payment for the
supply of, or for an offer to supply, any human organ;
(e) takes part in the management or control of a body of persons, whether a society, firm or
company, whose activities consist of or include the initiation or negotiation of any
arrangement referred to in clause (d); or
(f) publishes or distributes or causes to be published or distributed any advertisement,—
(a) inviting persons to supply for payment of any human organ;
(b) offering to supply any human organ for payment; or
(c) indicating that the advertiser is willing to initiate or negotiate any arrangement referred
to in clause (d);
(g) abets in the preparation or submission of false documents including giving false affidavits
to establish that the donor is making the donation of the human organs, as a near relative or
by reason of affection or attachment towards the recipient,

MEMORIAL ON BEHALF OF THE RESPONDENT 19

shall be punishable with imprisonment for a term which shall not be less than five years but
which may extend to ten years and shall be liable to fine which shall not be less than twenty
lakh rupees but may extend to one crore rupees.”

These show that there are no irregularities in the procedure. The procedure is laid down to
ensure equality before law and equal protection of the law as protected under Article 14.

The alleged commercial transactions like in Amit and Gautham’s cases should have been
reported to the Appropriate Authority and cognizance taken. Such instances are illegal and it
is very unfortunate that such transactions have happened. The State will definitely take the
necessary actions to prevent any such commercial transaction from happening in future. Such
illegal activities take place in the State only once in a blue moon and in times of their
occurrence they are reported and legal actions are definitely taken by the State. However,
these cases must be reported to the Appropriate Authority rather than filing baseless writ
petitions such as this instant petition.

MEMORIAL ON BEHALF OF THE RESPONDENT 20

III. The State has not violated Article 21 of the Constitution of Ananisthan by
amending the Transplantation of Human Organs and Tissues Act, 1994 and has
not failed to protect the right to life of patients including those suffering from
end stage organ failure.

Existence of a Just and Reasonable Procedure Established by Law

The fundamental right to life and personal liberty is a negative right under Article 21 of the
Constitution of India which guarantees that no person shall be deprived of her/his right to life
or personal liberty except as per the procedure established by law 8. It was held in the case of
Maneka Gandhi v. Union of India (1978)9 that the right under Article 21 can be vitiated
only if the procedure established by law is just and reasonable.

The latest Amendment to the Transplantation of Human Organs and Tissues Act, 1994 added
provisions governing the procedure to be followed for the certification of brain death. Under
sub-section (6) of Section 3 of the Transplantation of Human Organs and Tissues Act, 1994,
the procedure is laid down, which is as follows:

"Where any human organ or tissue or both 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 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 panel of names approved by the Appropriate Authority:

8 Pandey, J.N. “Constitutional Law”

9 AIR 1978 SC 597

MEMORIAL ON BEHALF OF THE RESPONDENT 21

(Provided that where a neurologist or a neurosurgeon is not available, the registered medical
practitioner may nominate an independent registered medical practitioner, being a surgeon
or a physician and an anaesthetist or intensivist subject to the condition that they are not
members of the transplantation team for the concerned recipient and to such conditions as
may be prescribed);

(iv) the registered medical practitioner treating the person whose brain-stem death has
occurred."

The reason for necessitating the certification of brain-stem death 10 by a Board of Medical
Experts was so that there is no scope of violating with Hence the procedure laid down by the
Amendment is just and reasonable, and does not in any way, violate the right to life under
Article 21.

Widening Role of the State from Negative Police State to Modern Welfare State

In the past, the role of the State was limited to that of a negative police State. The functions
of the State did not extend beyond securing law and order, defence and other essential State
functions. With time, and many other factors including poverty, income inequality and
explosive population growth, the State became gradually responsible for the welfare of the
subjects as well. Health, education and general wellbeing of the citizens became a function of
the State. With respect to health, the State has enacted various statutes and rules with an
object of a procedure established by law.

Gautham, a prospective kidney recipient also present in the list prepared by the government,
pleaded the HC to issue a direction to the State to protect his right to health. ‘Health’ being a
State subject11, the list of recipients prepared by State of Nyayasthan is in furtherance of the
State’s duty to protect the right to health of its people. Rule 31(4)(e) of the Transplantation of
Human Organs and Tissues Rules, 2014 is reiterated once again:

“(e) sequence of allocation of organs shall be in following order:

State list ---- Regional List ----- National List ---- Person of Indian Origin Foreigner”

Gautham is native to the State of Nyayasthan. Therefore his name was added in the State List. The
waiting period was shown to be 2 years. The time taken is reasonable because of the large population

10 Under Section 3(6)

11 Schedule VII to the Constitution of India, 1950

MEMORIAL ON BEHALF OF THE RESPONDENT 22

in the country12. Moreover, it may have also been because the condition of Gautham being a patient
suffering from end-stage organ failure might have not been communicated to the authorities clearly.
Hence there could be an update on the waiting period due to the fact that Gautham immediately
requires a kidney.

Commercial transactions like in Amit and Gautham’s cases are very unfortunate and the State
will definitely take the necessary actions to prevent any such commercial transaction from
happening in future. Such illegal activities take place in the State quite rarely, and in times of
their occurrence they are reported and legal actions are definitely taken by the State.

Hence the role of the State is wide and the State is duty bound to protect the right to health of
the citizens of the country. There is no violation of Article 21 as alleged by the petitioners
because of a well-established procedure by law which is in place and being implemented.

12 Ananisthan is the 2nd most populous country in the World.

MEMORIAL ON BEHALF OF THE RESPONDENT 23

IV. The Amendments to the Transplantation of Human Organs Act, 1994 and its
allied rules are not in violation of Article 25 of the Constitution of Ananisthan.

Article 25 is Subject to Public Order, Morality and Health

Article 25 of the Constitution of India guarantees the right to freedom of conscience and
the right freely to practice, profess and propagate religion. However, it is subject to
certain restrictions in the interests of public order, morality and health. The restrictions
imposed by Article 25 was again reiterated in the case of T.M.A. Pai Foundation v. State
of Karnataka (2003)13. Freedom of religion would not allow a man to commit human
sacrifice14, even though human sacrifice is sanctioned by some religious creeds(i.e. some
of the Tantras); or to commit an act which is a crime under the law 15; or outrage the
religious feelings of another class, with a deliberate intent16.

Moreover, the right under Article 25 is subject to the provisions of Part III of the
Constitution which includes Article 21, as held in the case of Nikhil Soni v. Union of
India & Ors. (2015)17

No religion Completely Prohibits Organ Transplantation

There are several references18 which show that religions support organ transplantation.
The notion that a person’s religion does not support organ donation is merely a
misconception.

No religious law completely prohibits persons from donating their organs and tissues 19.
Life after death is a strong belief of Hindus and is an ongoing process of rebirth. This
could be seen as reflecting positively on the concept of organ donation and
transplantation. According to Shaunaka Rishi Das20, most Hindus take the view that after
the soul has departed, the body is no more than a machine, and there is nothing to stop the
parts being shared with others.

13 AIR 2003 SC 355 (440)

14 Sardar Saifuddin v. State of Bombay, AIR 1962 SC 853:1962 (Supp-2) SCR 496
15 Arver v. U.S., (1918) 245 US 366 ; Reynolds v. U.S., (1878) 98 US 145: (1879) 25 L Ed 244 ; Employment
Division Department of Human Resource v. Smith, (1990) 494 US 872
16 Cf. Ramji Lal v. State of UP., AIR 1957 SC 620 : 1957 SCR 860 : (1957) SCC 214
17 WP No. 7414 of 2006
18 Based on scriptures and opinions, as cited further.
19 BBC, 2015 https://www.bbc.co.uk/religion/religions/hinduism/hinduethics/organdonation.shtml

20Oxford Centre for Vaishnava and Hindu Studies, Great Britain

MEMORIAL ON BEHALF OF THE RESPONDENT 24

 The Concept of ‘Daan’ in Hindu Law

As mentioned above, there are many references that support the concept of organ
donation in Hindu scriptures. In the list of ten Niyamas (or virtuous acts) in the Hindu
scriptures, Daan (or selfless giving) is third, and is held as being very significant within
the Hindu faith. That which sustains is accepted and promoted as Dharma (righteous
living). This could also be seen as supporting the idea of organ donation. But, the only
constraint on the idea of organ donation is imposed by the very nature of Dharma. Every
act or intention of anyone should be dharmik. Therefore, it is right to donate organs, only
if the act of donating an organ has beneficial results. The Transplantation of Human
Organs and Tissues Act 1994 contains offences which prohibit commercial transactions
and dealings in human organs. This can be said to be in support of the concept of
dharmikta, or donation.

In Hindu mythology there are also traditions which support the use of body parts to
benefit others. Scientific papers also form an important part of the Vedas. Sage Sushruta
looks at features of organ and limb transplants, and Sage Charaka deals with internal
medicine. The law of Karma decides which way the soul will go in the next life. The
Bhagavad Gita describes the mortal body and the immortal soul in a simple way like the
relationship of clothes to a body21.

“As a person puts on new garments giving up the old ones, the soul similarly accepts new
material bodies giving up the old and use less ones.” - Bhagavad Gita, chapter 2:22

Organ Donation in Muslim Law

Organ donation is not completely prohibited in Muslim Law. Several Muslim Councils
have supported the idea of organ donation in Muslim Law considering the act as
‘charity.’22

BBC, 2015 https://www.bbc.co.uk/religion/religions/hinduism/hinduethics/organdonation.shtml

21
Ngah AC “Organ Transplantation in Malaysia: A Socio-legal Study; Formosan Journal of Medical
22
Humanities

MEMORIAL ON BEHALF OF THE RESPONDENT 25

 A study and Fatwa issued by Mufti Mohammed Zubair Butt 23, (in page 104), states that
the wishes of the organ donor has to be due importance because some donors have death
wishes in bona fide for the purpose of contributing to those in need.

23 MuftiMohammed Zubair Butt, “Organ Donation and Transplantation in Islam” Institute of Islamic
Jurisprudence

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 PRAYER

Therefore, in the light of the issues raised and arguments advanced, the counsel for the
Respondent humbly prays that the Hon’ble Supreme Court of Ananisthan be pleased to
adjudge, hold and declare:

1) The petition filed invoking Articles 32 and under 139A of the Constitution of
Ananisthan is not maintainable in the Supreme Court of Ananisthan;
2) There are no irregularities in the procedure to be followed in organ transplantation as
laid down in the Amendments to the Transplantation of Human Organs Act, 1994 and
its allied rules, and hence, are not in violation of Article 14 of the Constitution of
Ananisthan;
3) The State has not violated Article 21 of the Constitution of Ananisthan by amending
the Transplantation of Human Organs and Tissues Act, 1994 and has not failed to
protect the right to life of patients including those suffering from end stage organ
failure;
4) The Amendments to the Transplantation of Human Organs Act, 1994 and its allied
rules are not in violation of Article 25 of the Constitution of Ananisthan;

and pass any order that this Hon’ble Court may deem fit in the interest of equity, justice and
good conscience. And for this act of kindness, the Counsel for the Respondent shall duty
bound forever pray.

Sd/-

(Counsel for Respondent)

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