MCC-J

ALL INDIA MOOT COURT COMPETITION, JURIS FIESTA 2019

AL AMEEN LAW COLLEGE, SHORANUR

IN THE HON’BLE SUPREME COURT OF ANANISTHAN

WRIT JURISDICTION

UNDER ARTICLES 32 AND 139A OF THE CONSTITUTION OF INDIA

Peoples Union for Health Rights (PUHR) & Ors.

V.

Union of Ananisthan

ON SUBMISSION TO THE REGISTRY OF THE COURT

OF THE HON’BLE SUPREME COURT OF ANANISTHAN

MEMORIAL FOR THE PETITIONERS - Peoples Union for Health Rights & Ors.
 TABLE OF CONTENTS

INDEX OF AUTHORITIES......................................................................................................3
STATEMENT OF FACTS........................................................................................................7
STATEMENT OF ISSUES......................................................................................................10
SUMMARY OF ARGUMENTS.............................................................................................11
ARGUMENTS ADVANCED.................................................................................................13
PRAYER..................................................................................................................................29

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 INDEX OF AUTHORITIES

A. TABLE OF CASES

Sl. No. Name & Citation of Case

1 Animal Welfare Board of India v. A.N Nagaraja 2014 7 SCC 547

2 Balbir v. Authorization Committee (2004) AIR 2004 Del. 413

3 Chiranjit Lal v. U.O.I 1957 AIR 41,1957 SCR 869

4 Fertilizer Corp. Kamagar Union v. U.O.I 1981 AIR 344, 1981 SCR (2) 52

5 Hemraj & Ors. V. State of Haryana Crl. Revision No. 23 of 2010

6 Indian Medical Association v. V.P. Shantha 1996 AIR 550, 1995 SCC(6) 651

7 Kiranlal v. State of Kerala

8 Kasturi v. State of Jammu & Kashmir (1980) AIR 1980 SC 1992

9 Nagendra Mohan Pattanaik and others v. The Government of Andhra Pradesh

1997 (1) ALT 504
10 National Human Rights Commission v. State of Arunachal Pradesh, AIR 1996 SC
1234
11 Parmanand Katara v. U.O.I. 1989 AIR 2039,1989 SCR (3) 997

12 Paschim Bengal Khet Mazdoor Samiti v. State of West Bengal 1996 SCC (4) 37,
JT 1996 (6) 43
13 People’s Union for Democratic Rights v. U.O.I. 1982 AIR 1473,1983 SCR (1) 456

14 Private Medical Practitioners Association of India v. State of Tamil Nadu W.P.

NO. 9691 OF 2006
15 Purshottom v. Desai (1955) 2 SCR 1887 (902)

16 Ramana v. IAA (1979) AIR 1979 SC 1628

17 Sardar Saifuddin v. State of Bombay AIR 1962 SC 853

18 S.P Gupta and others v. President of India and others AIR 1982 SC 149, 1981
Supp (1) SCC 365, 1982 2 SCR 365
19 S. Samson v. Authorization Committee (2008)

20 W.P. No. 33517 of 2013 v. U.O.I.

MEMORIAL ON BEHALF OF THE 3

 B. TEXT BOOKS

SL. NAME OF THE AUTHOR PUBLICATIO Edn.

BOOK N
NO /YEAR

1 COMMENTARY ON DURGA DAS LEXIS NEXIS 9TH Edn.

THE CONSTITUTION BASU
2014
OF INDIA.

2 INDIAN M.P. JAIN LEXIS NEXIS 6TH Edn.

CONSTITUTIONAL
2010
LAW.

3 ORGAN AND Dr. YVON MARTINUS 1ST Edn.

TISSUE ENGLERT NIJHOFF
TRANSPLANTATIO PUBLISHERS 1995
N IN THE
EUROPEAN UNION
4 LAW, ETHICS, AND P.D.G. SKEGG CLARENDON 1ST Edn.
MEDICINE PRESS 1984

5 THE CONSTITUTION P.M. BAKSHI UNIVERSA 9TH Edn.

OF INDIA LAW
PUBLISHING 2009
CO.
7 LECTURES ON C.K. TAKWANI EASTERN 5TH Edn.
ADMINISTRATIVE BOOK
LAW COMPANY 2012

8 CONSTITUTIONAL J.N. PANDEY EASTERN 2012

LAW BOOK
COMPANY

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 C. JOURNALS

Author Title Publication/Journal

Mufti Mohammed Zubair Organ Donation and Institute of Islamic
Butt Transplantation in Islam Jurisprudence

D. DYNAMIC LINKS

www.indiankanoon.org

www.supremecourtofindia.nic.in

www.notto.gov.in

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 STATEMENT OF JURISDICTION

The petitioners humbly submit this memorial before the Hon’ble Supreme Court of
Ananisthan. This petition invokes 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
Ananisthan, and sets forth the facts & provisions of law on which the claims are instituted.

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 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.

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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

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 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.

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 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?

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 SUMMARY OF ARGUMENTS

I. The petition filed invoking Articles 32 and under 139A of the Constitution of
Ananisthan is maintainable in the Supreme Court of Ananisthan.

1. The Petitioners have the Locus Standi

2. Jurisdiction of the Hon’ble Supreme Court of Ananisthan

II. 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.

1. Violation of the Principles of Organ Allocation under the Law

2. Irregularities in complying with rules relating to Authority Granting Approval
for Organ Transplantation

III. 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.

1. The Composition of Board of Medical Experts is Such that the Members have
Wide and Discretionary Powers which has led to Conflict of Interest
2. Delay in Allocation for Organ Transplantation Violates Article 21
3. The State has Failed to Prevent Commercial Transactions in Organ
Transplantation

IV. 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.

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1. The Amendments hurt the Religious Sentiments of Certain Religious
Communities
2. Brain-Stem Death is Not Recognized in Islam

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 ARGUMENTS ADVANCED

I. The petition filed invoking Articles 32 and under 139A of the Constitution of
Ananisthan is maintainable in the Supreme Court of Ananisthan.

The Petitioners have the Locus Standi

Article 32(1) of the Indian Constitution gives the right to move the Supreme Court by
appropriate proceedings for the enforcement of Fundamental Rights guaranteed under Part
III1. In the present case there is a clear violation of Fundamental Rights guaranteed under
Articles 14, 21 and 252. Hence the Petitioners have invoked Article 32(1).

The modern Indian judiciary permits public interest litigations at the instance of ‘public
spirited citizens’ for enforcement of any constitutional and other legal rights of any person or
group of persons. In Fertilizer Corp. Kamagar Union v. U.O.I3 it has been well established
that where a legal wrong or legal injury is caused to a person or a determinate class of
persons by reason of violation of any constitutional or legal right or any burden is imposed in
contravention of any constitutional or legal provision or without law or any such legal wrong
or legal injury or illegal burden is threatened and such person or determinate class of persons
by reason of poverty, helplessness or disability or socially or economically disadvantaged
position, unable to approach the Court for relief, any member of the public can maintain an
application for an appropriate direction, order or writ in the High Courts under Article 226
and in case of breach of any fundamental right of such person or determinate class of persons
in the Supreme Court under Article 32 seeking judicial redress for the legal wrong or injury
caused to such person or determinate class of persons.

The full scope of PIL vis-à-vis locus standi was enumerated by Bhagwati, J. in the famous
S.P Gupta and others v. President of India and others 4, commonly called Judges Transfer
case held “We would, therefore, hold that any member of the public having sufficient interest
can maintain an action for judicial redress for public injury arising from breach of public
duty or for violation of some provision of the Constitution or the law and seek enforcement of
such public duty and observance of such constitutional or legal provision. This is absolutely

1 Bakshi, P.M. “Constitution of India”

2 Of the Constitution of India, 1950
3 1981 AIR 344, 1981 SCR (2) 52
4 AIR 1982 SC 149, 1981 Supp (1) SCC 365, 1982 2 SCR 365

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necessary for maintaining the rule of law, furthering the cause of justice and accelerating the
pace of realisation of the Constitutional objectives.”

People’s Union for Health Rights (PUHR), an NGO working in the health sector in
Ananisthan, challenging the constitutional validity of the amendment is similar to People’s
Union for Democratic Rights(PUDR), an organisation committed to legally defend civil
liberties and democratic rights of people, questioning the enforcement of various labour laws
in relation to workmen employed in construction work in the case of People’s Union for
Democratic Rights v. U.O.I. 5 Public Interest Litigation filed by an organisation dedicated to
a particular cause is maintainable. Hence the PIL filed by People’s Union for Health
Rights(PUHR) is maintainable.

Article 226 gives to every High Court the power to issue to any person or authority, including
in appropriate cases, any Government, within those territories directions, orders or writs,
including writs in nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and
for any other purpose.

The WP filed invoking Article 226 in the case of Private Medical Practitioners Association
of India v. State of Tamil Nadu6 seeking a writ of mandamus before the Madras High Court
was maintainable. Similarly the WP filed in the High Court of Nyayasthan by NEETHI, an
NGO working locally, for proper implementation of the statute which has failed to prevent
commercial transactions in human organs is maintainable.

A person whose constitutional or legal right is infringed can apply for relief under Article
226. This the famous rule of locus standi. The person who complains of the infringement of a
fundamental right must show that alleged fundamental right belongs to him. This was the
finding of the Supreme Court of India in the case of Chiranjit Lal v. U.O.I.7 In the present
case Gautham has approached the High Court of Nyayasthan stating that his right to health is
affected as the state is unable to facilitate organ transplantation surgeries in the right time.
Hence the WP filed by Gautham is maintainable. In Kiranlal v. State of Kerala, the Petitioner
(a minor boy, suffering from serious renal problems, represented by his father) filed a WP

5 1982 AIR 1473,1983 SCR (1) 456

6 W.P. NO. 9691 OF 2006
7 1957 AIR 41,1950 SCR 869

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before the High Court of Kerala due to delay in issuance of clearance certificate by the
Authorisation Committee which in turn adversely affected his Right to Life.

In W.P. No. 33517 of 2013 v. U.O.I8., the WP filed invoking Article 226 before the Madras
High Court by the Petitioner, Mrs. Mariam Nathira, for issuance of writ of mandamus
directing the Authorisation Committee to accord her permission to undergo Renal Transplant
Operation was maintainable. Similarly, the WPs of Dr. Vasundhara Das and Gautham are
maintainable.

Jurisdiction of the Hon’ble Supreme Court of Ananisthan

NEETHI, an NGO working locally, 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. In Animal Welfare Board of India v. A.N Nagaraja9 the Supreme Court
directed AWBI to take effective and speedy steps to implement the provisions of PCA Act
and if these are not efectively complied with then disciplinary action could be taken. Hence,
Supreme Court has powers to direct implementation of statute, and this is the relief NEETHI
wants.

Dr. Vasundhara, a government neurologist, filed the WP in the High Court of Nyayasthan
seeking an order to probe into certification of brain stem deaths by the private hospitals in the
State. In Nagendra Mohan Pattanaik and others v. The Government of Andhra Pradesh 10 it
was held that 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 as
per Section 3(6) of the THOA, 1994.

The Constitution of WHO states that enjoyment of highest attainable standard of health if one
of the fundamental rights of every human being and it is the Government upon whom lies the
responsibilty for the health of their people which can be fulfiled only by the provision of
adequate health and social measures. The Supreme Court of India has held in Paramanand
Katara v. U.O.I.11 that right to health is an integral part to right to life under Article 21 of the
Constitution. And that preservation of human life is of paramount importance. In India during

8 Mrs. Mariam Nathira was the Petitioner.

9 2014 7 SCC 547
10 1997 (1) ALT 504
11 1989 AIR 2039,1989 SCR (3) 997

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the last four decades the issue of health gained momentum through the judgements delivered
in Parmanand Katara v. U.O.I 12 ., Indian Medical Association v. V.P. Shantha 13 and
Paschim Bengal Khet Mazdoor Samiti v. State of West Bengal 14. Hence the WP of Gautham
is maintainable.

In People’s Union for Democratic Rights v. U.O.I. 15 the constitutional validity of the
amendment to the Act was challenged by the Petitioner. In the present case also the
constitutional validity of the amendment is being challenged in the Supreme Court of
Ananisthan.

12 supra
13 1996 AIR 550, 1995 SCC(6) 651
14 1996 SCC (4) 37, JT 1996 (6) 43
15 supra

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 II. 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.

Article 14 guarantees equality before law and equal protection of law. 16 As discussed in the
Commentaries on the Constitution by Basu, D.D. equality has a wide connotation. Equality
before law and equal protection of the law extends to privileges offered by the State, since the
guarantee of equal protection embraces realm of State action. It would extend not only when
an individual is discriminated against in the matter of exercise of his rights or in the matter of
granting privileges, as decided in the case of Ramana v. IAA (1979)17, and in the case of
Kasturi v. State of Jammu & Kashmir (1980)18

The procedure to be followed for organ and tissue transplantation in India can be understood
with a reading of the Transplantation of Human Organs and Tissues Act, 1994, and the
Transplantation of Human Organs and Tissues Rules, 201419.

Violation of the Principles of Organ Allocation under the Law

It is first important to note that 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. Under sub-rule (4) of Rule
31, 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

16 Jain, M.P. “Indian Constitutional Law”, 6th Edition

17 AIR 1979 SC 1628
18 AIR 1980 SC 1992
19 which superseded the original Transplantation of Human Organs and Tissues Rules of 1995

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(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

It is not known in the case of the recipient of Amit's wife kidney, who was a foreigner, as to
whether the recipient had any near relatives or not, however, she/he received an organ in
violation of the priority sequence as mentioned above. This has resulted in discrimination
against deserving recipients in the other Lists 20. The State had 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. It was held in the case of Purshottom v. Desai (1955)21 that
classification on the basis of geography is valid. The rational objective behind this
classification is to protect those potential recipients within the same territory on a priority
basis. However, as per the facts22, those recipients at the end of the sequence have been
receiving organs. The State has thus failed to ensure equality before law, by committing this
violation of the Rules.

In the case of National Human Rights Commission v. State of Arunachal Pradesh, AIR
1996 SC 123423, it was held that that every person is entitled to equality before law and equal
protection of laws, where the State is bound to protect every human being from inequality.

Irregularities in complying with rules relating to Authority Granting Approval for

Organ Transplantation

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:
20 Maintained by the NOTTO, ROTTO and NOTTO
21 2 SCR 887(902); AIR 1956 SC 20
22 Paragraph 4 of the Moot Proposition
23 AIR 1996 SC 1234

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"(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
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

MEMORIAL ON BEHALF OF THE 1

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."

As pointed out by one of the petitioners NEETHI, in the case of the removal of the kidney
from the patient Amit’s wiife by the registered practitioners in RLVM Hospital, the recipient
was a foreign national who had indirectly offered Rs 5,00,000/- for the transplantation of
Amit's kidney. This clearly amounts to a commercial transaction, punishable under the
Transplantation of Human Organs and Tissues Act, 1994. Here there are two possibilities:

• Consent of the Authorization Committee was not obtained - By bypassing Rule 5(f) of
the Transplantation of Human Organs and Tissues Rules, 2014, the hospital had
facilitated the two surgeries. In this scenario, it must be found out whether any other
surgeries had been facilitated in this manner in the State of Nyayasthan.

• Consent of the Authorization Committee was obtained, but in violation of sub-rule (3)
of Rule 7 of the Transplantation of Human Organs and Tissues Rules, 2014 - This is a
dreadful scenario which would mean that the Authorization Committee formed by the
State (constituted under the provisions of clauses (a) and (b) of sub-section (4) of
section 9 of the Transplantation of Human Organs and Tissues Act, 1994) had either
colluded with the recipient and/or the hospital.

In both scenarios, the State has clearly failed to ensure that the Rules are not flouted, leading
to discrimination in favour of foreign patients as against deserving patients within India.

Rules 19 and 20 of the Transplantation of Human Organs and Tissues Rules, 2014 go as
follows:

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"19. Procedure in case of transplant other than near relatives.— Where the proposed
transplant is between other than near relatives and all cases where the donor or recipient is
foreign national (irrespective of them being near relative or otherwise), the approval will be
granted by the Authorisation Committee of the hospital or if hospital based Authorisation
Committee is not constituted, then by the District or State level Authorisation Committee.

20. Procedure in case of foreigners.— When the proposed donor or the recipient are
foreigners;

(a) a senior Embassy official of the country of origin has to certify the relationship between
the donor and the recipient as per Form 21 and in case a country does not have an Embassy
in India, the certificate of relationship, in the same format, shall be issued by the Government
of that country;

(b) the Authorisation Committee shall examine the cases of all Indian donors consenting to
donate organs to a foreign national (who is a near relative), including a foreign national of
Indian origin, with greater caution and such cases should be considered rarely on case to
case basis:

Provided that the Indian living donors wanting to donate to a foreigner other than near
relative shall not be considered."

Rule 19 mandates that it is the Authorization Committee that must grant the approval for
transplantation procedures where it is between persons other than near relatives and all cases
where the donor or recipient is foreign national It is humbly submitted that Rule 20 has not
been complied with. No caution was exercised in the case of transplantation of the kidney of
Amit to the foreigner recipient, as the donor should have not been considered in the first
place.

Hence, there has been a grave violation of the right to equality before law guaranteed under
Article 14 to the Constitution of India. There are procedural irregularities which are clearly
being flouted by the hospitals and the authorities.

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III. 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.

The Composition of Board of Medical Experts is Such that the Members have Wide and
Discretionary Powers which has led to Conflict of Interest

Article 21 of the Constitution of India guarantees that no person shall be deprived of her/his
right to life or personal liberty except as per the procedure established by law. The
fundamental right to life includes the right to health, as held in the cases of Parmanand
Katara v. Union of India (1989)24, Indian Medical Association v. V.P. Shantha (1996) 25,
and Paschim Banga Khet Mazdoor Samiti v. State of West Bengal (1996) 26 ( In the instant
case, where organ transplantation is the focal issue at hand, it is important to understand the
concept of brain death, as defined by the High Court of Punjab and Haryana at Chandigarh
who held in the case of Hemraj & Ors. V. State of Haryana (2011)27, that the types of brain
death are:

 Cortical or Cerebral Death with an intact brain stem – vegetative state – capable of
spontaneous breathing.
 Brain-stem death – incapable of spontaneous breathing.
 Whole Brain Death – Suspended animation – apparent death – person appears dead
due to low, minimal vital functions.

The 2011 Amendment to the Transplantation of Human Organs and Tissues Act, 1994
defined brain-stem death as follows:

“(d) “brain-stem death” means the stage at which all functions of the brain-stem have
permanently and irreversibly ceased and is so certified under sub-section (6) of section 3;”

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-stem death.

24 (1989) 4 SCC 286

25 AIR 1996 SC 550
26 AIR 1996 SC 2426
27 Crl. Revision No. 23 of 2003

MEMORIAL ON BEHALF OF THE 2

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:

(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."

It can be seen that in order to certify that a person is brain-dead, the Board of Medical
Experts constituted under sub-section (6) of Section 3 has very wide and discretionary
powers. Although it is mentioned that an independent medical practitioner is to be nominated
by the registered medical practitioner in charge of the hospital, the independence is
questionable because an internal member or medical practitioner is the one nominating. There
arises a conflict of interest within the Board of Medical Experts, and it is just why the
transplantation of Mrs. Amit’s kidney to the foreign recipient was facilitated, with or without
the approval of Authorization Committee, which is of a nature of transplantation barred under

MEMORIAL ON BEHALF OF THE 2

sub-section (1A) of Section 9 of the Act. This has led to the violation of the right to life of the
patients.

Delay in Allocation for Organ Transplantation Violates Article 21

As seen in the case of transplant of the kidney of Mrs. Amit to the foreign recipient, the
Board committed irregularities as mentioned earlier. The foreign national should have not
received the organ because foreign nationals stand at the least priority in the Organ
Transplantation Removal and Storage Network. On the other hand there are patients like
Gautham, one of the petitioners in the instant case who are suffering from end-stage organ
failure and have been told that the waiting period is 2 years. Hence, Gautham has approached
the High Court of Nyayasthan stating that his right to health is affected as the state is unable
to facilitate organ transplantation surgeries in the right time. It was held in the case of S.
Samson v. Authorization Committee (2008) 28 that delay in granting approval for organ
transplantation is a violation of the patient’s right to life, particularly the right to health. In
Kiranlal v. State of Kerala29, the Petitioner was a minor boy, suffering from serious renal
problems, (represented by his father) filed a WP before the High Court of Kerala due to
delay in issuance of clearance certificate by the Authorisation Committee which in turn
adversely affected his Right to Life. Hence the delay caused due to flouting of the provisions
of the Transplantation of Human Organs and Tissues Act and Rules, allowing foreign
nationals to receive organ transplantations easily30 is a violation of Article 21.

In the case of Balbir v. Authorization Committee (2004)31, a patient who was suffering from
end stage organ failure was denied a transplant and the inordinate delay resulted in his death.
Hence, the failure of the State to facilitate organ transplants at the right time is a violation of
Article 21.

The State has Failed to Prevent Commercial Transactions in Organ Transplantation

The World Health Organization (WHO) in its statement on the sale of organs clearly states
that it violates the Universal Declaration of Human Rights as well as its own constitution:

28 WP NO. 3584 of 2008 Mad.

29 WP (C) No. 9483 of 2012 (I) Del.
30 Paragraph 4 of the Moot Proposition
31 AIR 2004 Del. 413

MEMORIAL ON BEHALF OF THE 2

“The human body and its parts cannot be the subject of commercial transactions.
Accordingly, giving or receiving payment… for organs should be prohibited.” The WHO
advices physicians not to transplant organs ‘if they have reason to believe’ that the organs
concerned have been the subject of commercial transactions.”

The latest amendment to the Transplantation of Human Organs and Tissues Act, 1994 also
added the provision that the State could harvest the body of brain-dead patients to harvest the
transplantable organs in a supposedly ‘effective’ manner32. What the Amendment seeks to
achieve is the equitable distribution of transplantable organs within its managed network.

As observed by the Delhi High Court in the case of Balbir v. Authorization Committee
(2004)33 para 10 goes as follows:

“The Transplantation of Human Organs Act, 1994 was enacted to meet the need of a
comprehensive legislation for regulating the removal of organs from cadavers and living
persons and prohibiting commercial dealings in human organs. The advances in the field
medicine, science and technology has made it possible to remove organs from living as well
as deceased persons and to transplant such organs to save lives of suffering human beings.
This also brought with it the evil of mal-practices and commercial dealings in human organs.
With a sizable population living below poverty line, the danger of exploitation by sale of
organs due to compelling economic necessity is real in India. It was in this background that a
comprehensive law for regulating the removal and transplant of human organs i.e. the
Transplantation of Human Organs Act, 1994 (hereinafter referred to as the Act) was
enacted.”34

However, it is humbly submitted that the State has already failed to achieve any level of
equitable distribution of organs by being unable to prevent commercial transactions in human
organ transplantation. By extending the power of the State to that of harvesting organs, it is a
further encroachment of the right to life of the patients. Moreover, the State being all the
more powerful, may be susceptible to corruption and mismanagement of the organs due for
transplantation by not following the priority list under clause (e) of sub-rule (4) of Rule 31 of
the Transplantation of Human Organs and Tissues Rules, 2014, as seen in the case of

32 Paragraph 10 of the Moot Proposition

33 AIR 2004 Del. 413
34 Ibid. at para 10

MEMORIAL ON BEHALF OF THE 2

transplantation of Mrs. Amit’s kidney to the foreign recipient. Hence, excess power to the
State is also a violation of the right to life of patients.

MEMORIAL ON BEHALF OF THE 2

IV. 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.

The Amendments hurt the Religious Sentiments of Certain Religious Communities

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. There are certain religious
rights associated with the human body, such as the right to burial or cremation, which was
recognized as an enforceable right in the case of Sardar Saifuddin v. State of Bombay 35. The
latest Amendment to the Transplantation of Human Organs and Tissues Act, which allows
the State wider powers to harvest transplantable organs, is argued to be in violation of the
religious sentiments of various religious sections of the society.

Several studies upon religious sentiments regarding the cadaver, have shown Muslims who
argue against organ donation to believe that Islam forbids transplantation of organs as it was
not mentioned in the Holy Scriptures such as the Qur’an and the Hadith. Muslims believe that
the human body is owned by God and that only God could make decisions about its fate and
had cited sacredness of the body, believing that the deceased’s body must be buried as soon
as possible after death; also expressing the view that the body is resurrected after death and
that it was more desirable for a body to remain whole after death, also believing that disease
would only be cured by God’s will and that they would prefer to wait for a divine cure rather
than accept organ transplantation, and a belief that organs took an independent role as
‘witness’ to an individual’s life on ‘Judgement Day’, and an anxiety that the donor would
have no control of who receives his organ. There are also those who believe that organ
transplantation extended a patient’s life and his suffering.

Although many of these notions may seem a tad in excess and unbelievable, the fact that a
body’s wholesomeness is lost upon transplantation of an organ, cannot be disregarded and it
is a reasonable belief.

Brain-Stem Death is Not Recognized in Islam

The Amendments to the Transplantation of Human Organs and Tissues Act, 1994, that in
2011 and the subsequent one, have defined brain-stem death and the procedure for certifying

35 AIR 1962 SC 853

MEMORIAL ON BEHALF OF THE 2

brain-stem death respectively. However, Islam does not recognize brain stem death. A fatwa
on transplantation of Human Organs by a Mufti was passed which was made after intensive
research into Islamic jurisprudence governing transplantation of human organs. The fatwa
only recognized circulatory death (in other words, cardio-pulmonary death.

Death has not been clearly defined clearly. Section 2(e) defines a deceased person as follows:

“(e) “deceased person” means a person in whom permanent disappearance of all evidence
of life occurs, by reason of brain-stem death or in a cardio-pulmonary sense, at any time
after live birth has taken place However, two situations can be defined as equivalent to death
for legal purposes;”

Hence there are two stages in which a person is considered to have died.

 Cardio-pulmonary death – The stage at which there is entire stoppage of the

respiratory system, the circulation of blood through the heart, and air through the
lungs.
 Brain-stem death – It has been defined under Section 2(d) of the Transplantation of
Human Organs and Tissues Act, 1994, as the stage at which all functions of the brain-
stem have permanently and irreversibly eased and is so certified under sub-section (6)
of Section 3 of the Act.

According to the Fatwa issued by Mufti Mohammed Zubair Butt 36, Islam does not recognize
brain-stem death, but only cardio-pulmonary death. Brain-stem death is not recognized in
Islam as death, and hence the Amendments to the Transplantation of Human Organs and
Tissues Act, 1994 which grant the State the power to harvest organs are in violation of the
right to practice religion guaranteed under Article 25 of the Constitution of India.

36Mufti Mohammed Zubair Butt, “Organ Donation and Transplantation in Islam” Institute of Islamic
Jurisprudence

MEMORIAL ON BEHALF OF THE 2

 PRAYER

Therefore, in the light of the issues raised and arguments advanced, the counsel for the
Petitioners 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 maintainable in the Supreme Court of Ananisthan;
2) 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;
3) 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;
4) 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;

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 Petitioners shall duty
bound forever pray.

Sd/-

(Counsel for Petitioners)

MEMORIAL ON BEHALF OF THE 2