KIRANLAL Vs. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT DEPARTMENT OF HEALTH & FAMILY WELFARE SERETARIAT THIRUVANANTHAPURAM

JUDGEMENT

(1.) THE clearance to be given by the 5th respondent /State Level Authorisation Committee for Renal Transplantation under the Transplantation of Human Organs Act , 1994 ('Act' in short) and Transplantation of Human Organs Rules, 1995 ('Rules' in short) is the subject matter involved .

(2.) THE challenge stands is more as to the vires of the Rules 4A(4)(v) or/and Rule 6F(d)(iv) and seeks for a declaration that the conviction of 8th respondent/donor in Crime No.258/01 of Payyangadi Police Station in respect of offence under section 55(a) of the Kerala Abkari Act (pending in appeal before the Sessions Court, Thalasserry) is not an impediment for giving clearance for the kidney transplantation surgery to be performed in the 6th respondent's hospital.

(3.) IT is stated that the petitioner has been given to understand that the adverse observation made by the 4th respondent in Ext.P16 certificate, referring to the conviction of the donor in a criminal case under Section 55(a) of the Abkari Act, (which is stated as pending in appeal) stands against the processing of the application and in giving clearance. The petitioner's specific contention is that the relevant rules, particularly Rules 4A(4)(v) and 6F(d)(iv) as aforesaid, stipulating onerous terms are quite alien to the scheme of the 'Act' and are ultra vires. IT is also stated that, even otherwise, the said rules cannot bar the way of the petitioner in availing the benefit conferred under the Act to have the kidney transplantation to save his life. Reference is also made to various judicial pronouncements including that of the Apex Court in "Parmanand Katara v. Union of India [AIR 1989 SC 2039] pointing out that no law or regulation can be permitted to delay or deny the treatment to a patient, who is fighting for his life in the hospital. There is a further contention that the scope of the Rules is also something different and its object is not to debar an accused or convict from being a donor or to deny the benefit of the Act to the patient/recipient. IT is stated that the criminal case under Section 55(a) of the Abkari Act against the 8th respondent/donor itself is a false and fabricated one; that the conviction and sentence is not correct or sustainable either on facts or in law; that the same is pending in appeal and hence not final and that there is every chance for winning the appeal. IT is also pointed out that the life of the petitioner/patient cannot be left in lurch till finalisation of the appeal and seeks for immediate intervention of this Court .