Allowed

Nimshaj K.P v. State of Kerala

Kerala HC2 Jun 2017WP(C)/4403/2017

Case brief

AI extract

What is this about?

This single-judge court issued permission to renal failure patients to advertise their need for organ donors in print media. The court held that the Transplantation of Human Organs and Tissues Act and Rules, 1994 and 2014 do not prohibit such advertisements, provided the Authorization Committee verifies the absence of commercial dealings and existence of special reasons before transplantation.

What did the court decide?

Permission granted to the petitioners to advertise their need for human organs in the print media.

Nimshaj K.P Vs State of Kerala — Constitutional and Fundamental Rights | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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FRIDAY, THE 2ND DAY OF JUNE 2017/12TH JYAISHTA, 1939

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WP(C).No. 4403 of 2017 (A)

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PETITIONER:

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NIMSHAJ K.P, S/O. ABDUL HAMEED, AGED 33 YEARS, KOLLAPARAMBIL (H), CHEMBRAMMAL PULLARA, VALLUVAMBRAM, POOKKOTTUR, MALAPPURAM DISTRICT.

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BY ADVS.SRI.C.M.MOHAMMED IQUABAL SRI.ANILKUMAR V. (VAZHARAMBIL)

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM

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2. THE SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM

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3. THE DISTRICT LEVEL AUTHORIZATION COMMITTEE

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FOR TRANSPLANTATION OF HUMAN ORGANS, THRISSUR, THRISSUR MEDICAL COLLEGE HOSPITAL, POST THRISSUR, PIN-680020, REPRESENTED BY ITS CHAIRMAN

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4. LOCAL APPROVAL COMMITTEE OF ORGAN TRANSPLANTATION WESTFORT -HI-TECH HOSPITAL LTD, PUNKUNNAM, THRISSUR, PIN-680002, REPRESENTED BY ITS CHAIRMAN.

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5. PRESS COUNCIL OF INDIA, SOOCHNA BHAVAN, 8C.G.O. COMPLEX, LODHI ROAD, NEW HELI-110003, REPRESENTED BY ITS SECRETARY

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R1 TO R3 BY SRI.K.V.SOHAN, STATE ATTORNEY

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02-06-2017, ALONG WITH WPC. 4390/2017 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.V.

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WP(C).No. 4403 of 2017 (A) ---------------------------

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1: THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE DEPARTMENT OF NEPHROLOGY, WESTFORT HI-TECH HOSPITAL THRISSUR DATED 3.2.2017 EXHIBIT P2: THE TRUE COPY OF THE ADVERTISEMENT PUBLISHED IN THE MALAYALA MANORAMA DAILY DATED 25.1.2017 EXHIBIT P2(A): THE TRUE COPY OF THE ADVERTISEMENT PUBLISH IN THE MALAYALA MANORAMA DAIYLY DATED 25.1.2017 EXHIBIT P2(B): THE TRUE COPY OF THE ADVERTISEMENT PUBLISHED IN THE MALAYALA MANORAMA DAILY DATED 26.1.2017 EXHIBIT P3: THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 28.1.2017 BEFORE THE 2ND RESPONDENT

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RESPONDENT(S)' EXHIBITS NIL

/TRUE COPY/

P.A.TO JUDGE

K.V.

P.B.SURESH KUMAR, J.

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W.P.(C) Nos.4403, 4404, 4405 & 4390 of 2017

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Dated 2^nd June, 2017.

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J U D G M E N T

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The petitioners in this batch of writ petitions are patients suffering from renal failure. It is stated that all of them have been advised that kidney transplantation is the only alternative available to save their lives.

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The Transplantation of Human Organs and Tissues Act, 1994 (the Act) as also the rules made thereunder, viz, Transplantation of Human Organs and Tissues Rules, 2014 (the Rules) contemplate transplantation of organ from nonrelatives only by reason of affection or attachment towards recipient or for other special reasons. In other words, the Act and the Rules prohibit commercial dealings between donor and recipient for organ.

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Petitioners are persons who are unable to find out donors of organ from among their relatives. As such, as noted above, transplantation is possible in their cases only if

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WPC No.4403 of 2017 & con. cases 2

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somebody is willing to donate their organ for any special reason without involving any commercial dealings. It is stated by the petitioners that there are persons who are willing to donate their organ for special reasons and such persons could be located only if an appropriate advertisement is given in the media for the said purpose. It is the case of the petitioners that the print media is not permitting advertisement inviting donors, who are willing to donate their organs for special reasons. According to the petitioners, there is no prohibition in advertising for donors and the question as to whether there exists a special reason is a matter for the Authorisation committee to decide before the transplantation. The petitioners, in the circumstances, preferred representations before the Government for permission to advertise their requirement and the writ petitions are preferred alleging that the Government is not taking any action on the said representations.

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Heard the learned counsel for the petitioners as also the learned State Attorney.

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WPC No.4403 of 2017 & con. cases

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The learned State Attorney, on instructions, submitted that petitioners can advertise without contravening the provisions contained in the Act and the Rules.

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On a perusal of the provisions contained in the Act and the Rules, I also do not find any impediment in advertising the requirement of the petitioners for, the statute provides for a check, to ascertain whether the donation is in accordance with the provisions contained in the Act and Rules, in the form of a permission by the Authorization Committee, before the transplantation is undertaken.

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In the circumstances, the writ petitions are allowed

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and the petitioners are granted permission to advertise their need for human organ in print media.

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Sd/-

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P.B.SURESH KUMAR, JUDGE.

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tgs

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(true copy)