The Gujarat High Court recently held that the law giving preference to persons who are domiciled in the State for cadaveric organ transplant (transplant after death of donor) is illegal and arbitrary. [Vidya Ramesh Chand Shah v. State of Gujarat].
The practice was based on the Gujarat Deceased Donor Organ and Tissue Transplantation Guidelines formulated by the State. Two instructions in the guidelines mandated a domicile certificate for registering on the State list for organ transplant. This meant that on the organ transplant list, patients domiciled in Gujarat would be given priority.
Justice Biren Vaishnav said that the main purpose of the Transplantation of Human Organs and Tissues Act, 1994 is to prevent commercial dealings in human organs and tissues and also to regulate transplantation of human organs for therapeutic use. Its purpose was never to restrain medical treatment to those domiciled in a state.
“While interpreting Article 21 of the Constitution of India, the Apex Court has held that the ‘Right to Health’ is an integral part of the ‘Right to Life’ and the State has a constitutional obligation to provide health facilities. Denial of medical treatment to the petitioners who are not domiciles of Gujarat is illegal and unconstitutional,” the judge said in his 119-page judgment.
The Court also noted that the State had tried to introduce a new requirement of a domicile certificate, even though the law nowhere provided for such criterion.
“The introduction of such criteria by a guideline, in the nature of executive instructions is in colourable exercise of powers,” the judge held.
The order was issued on three petitions challenging the guideline mandating a domicile certificate for organ transplant.
Among the three petitioners, one was an Overseas Citizen of India (OCI), who had been living in Gujarat for 10 years. Another petitioner was from Madhya Pradesh, but a Gujarati by descent. The third one was a general manager of Adani Ports.
While the first and the third petitioners were suffering from severe kidney disorders and in need of a kidney transplant, the second one required a liver transplant. All of them were refused registration on the ground that they did not possess a domicile certificate.
“For the purposes of the Act, the powers to curb such transactions cannot be extended to formulate executive instructions giving only a domicile of a State to be able to register himself or herself for organ donation, as a recipient as there is no nexus sought to be achieved,” the Court observed.
It was also noted that he Citizenship Act grants certain rights to only Indian citizens. Even though such rights are not available to an OCI, they rights cannot be read to restrict the availability of rights to a ‘person’ under Articles 14 and Article 21 of the Constitution of India.
“The whole object of making of the Act is to stem the propensity of commercialization of organ transplantation and by bringing in a requisite of being a domicile of a State cannot in any manner foster the purposes of the Act and therefore, on the touchstone of this test such a requirement by the State violate the constitutional guarantee enshrined to any person under Article 14 of the Constitution of India,” the Bench opined.
Therefore, the Court directed the State to register the petitioners and such other recipients for cadaveric transplant of organs without the condition of submitting a domicile certificate.
Senior Advocate GM Joshi along with Advocates IG Joshi and Vyom Shah appeared for the first and third petitioners.
Advocate Kunan B Naik appeared for the second petitioner.
Senior Advocate Manisha Lavkumar, along with additional government pleader Ronak Shah and Advocates SS Pathak, Vaibhav Vyas, GH Virk and Rajesh Kanani represented the State and other authorities.