Gujarat High Court: While deciding the instant bunch of petitions wherein the need to have a domicile certificate in order to be registered as a recipient on the State list for cadaveric transplant of an organ in Gujarat was challenged and prayer was made to declare Paragraph 13.1 and 13.10(C) of Gujarat Deceased Donor Organ and Tissue Transplantation (G-DOT) Guidelines as arbitrary, illegal and in violation of fundamental rights of the petitioners as well as citizens of India; the Bench of Biren Vaishnav J., held the impugned Paragraphs of the Guidelines to be unconstitutional, unreasonable and in violation of fundamental rights under Arts. 14 and 21 of the Constitution. The Court held that the need to have a domicile certificate in order to be registered as a recipient on the State list for cadaveric transplant of an organ is illegal and unconstitutional and directed the State of Gujarat to register the petitioners and such other recipients for cadaveric transplant of organs without the conditions of submitting a domicile certificate.
Facts of the Case: One petitioner is a Canadian citizen and an Overseas Citizen of India. Having diagnosed with limited functioning kidney, she was advised to undergo organ transplant. To undergo such transplant, the petitioner has to be registered as a recipient under the Transplantation of Human Organs and Tissues Act, 1994 and the Regulations thereunder. However, her request for registration was denied on the ground that she would require a domicile certificate. A request made for such certificate has been rejected by the impugned communication by the police authorities on the ground that the petitioner is a Canadian citizen and not an Indian citizen.
Similar plight was highlighted by other petitioners-
One resident of Madhya Pradesh and Gujarati by descent whose registration under the 1994 Act was rejected as she was registered in the non-domicile list citing paragraphs 13.1 and 13.10(C)(2) of the G-DOT Guidelines. The resolution dated 14-03-2019 provides that priority will be given to domicile residents and only after that list is exhausted, the organ will be offered to non-domicile list.
Another petitioner, a permanent resident of Gujarat since 2015, whose application for domicile certificate was rejected by the competent authorities on the ground that that since the petitioner belongs to the State of Jharkhand and is in Ahmedabad since 2015, having not completed 10 years, is not entitled to a domicile certificate.
Contentions: The counsels for the petitioners contended that Transplantation of Human Organs and Tissues Act, 1994 and the Rules thereunder do not specify any requirement of a domicile certificate. It was submitted that Art. 21 of the Constitution which deals with ‘Right to Life’, guarantees and includes the right to live with human dignity and receive medical care. It was submitted that State has a constitutional obligation to guarantee right to health which is an integral part of the ‘Right to Life’.
The petitioners challenged the clauses of the G-DOT Guidelines and submitted that they are beyond the rule making powers conferred under the 1994 Act. Relying on State of Telangana v. B. Subbarayudu, 2022 SCC OnLine SC 1220, by which the Supreme Court has held that every part of every state is an integral part of India. The Rules and Regulations have to be in consonance with the fundamental rights guaranteed under Part-III.
It was argued that the State’s insistence on domicile certificate would lead to making of two lists- one non-domicile and the other domicile and it is not the case where the petitioner wants any priority, thus the stand of the State strikes at the very root of Art. 21.
Per contra, the counsels for State Organ and Tissue Transplant Organization and the Advisory Committee submitted that Act of 1994 had been enacted as there was a large-scale propensity of commercialization of human organs. It was further submitted that human organ between a donor and a foreign national is not permitted and therefore, one of the petitioners cannot be permitted to undertake the process as the only possible way that she can apply is through cadaveric donation and the restrictions in place are just and proper.
The rationale behind the requirement of a domicile certificate was explained by submitting that in India as also in the State of Gujarat, there is a huge gap between recipients of organs and organ donors. The patients in need of organs outnumber the cadaver donors. It is therefore that the Guidelines prescribed various criteria like donor for types of hospitals and the sole purpose behind the criteria is to ensure that domiciles of State have access to medical health and infrastructure. It was submitted that the marginal and poor people of the State of Gujarat who do not have the capacity to travel outside Gujarat for transplantation would benefit by clause 13.1 and 13.10 and therefore the same should not be set aside.
Analysis and Findings by the Court: The Court upon perusing the facts, contentions and relevant provisions, did a detailed analysis of the grounds upon which the impugned Guidelines was challenged-
Vis-à-vis the Guidelines being violative of Art. 21, it was noted that in essence, the petitioners are suffering from a handicap due to a malfunction of an organ viz. kidney and liver in the respective cases, need a transplant, for which, the recipient petitioners will have to have a corresponding donor. It was pointed out that the 1994 Act regulates the transplantation of human organs and tissues by placing certain obligations and duties on the actors involved in the process.
It was observed that when a donor wants to donate after death, he/she can authorize the removal of organs after death. Living donors who want to donate before death can do so by a donation to a near relative and/or to a near relative who is a foreign national. This has to be done after prior approval of the Authorisation Committee. It was further noted that Gujarat Deceased Donor Organ and Tissue Transplantation Guidelines are in connection to cadaver transplantations.
The Court stated that argument to support the requisite of domicile certificate to correlate a complete embargo on organ donation to a foreign national by an India donor is of no help as even otherwise the guidelines of a prerequisite possession of domicile certificate is not related to the concept of a living donor.
Regarding denial of registration under the 1994 Act to an Overseas Citizen of India, the Court observed that Section 7-B(2) of Citizenship Act, 1955 provides or enlists such rights which an Overseas Citizen of India cardholder shall not be entitled to vis-a-vis the rights conferred on an Indian Citizen. However, such rights cannot be read to restrict the availability of rights to a ‘person’ under Arts. 14 and 21 of the Constitution. It is therefore misconceived for the State authorities to contend that only such rights other than specified under Section 7B (2) will be available only if so notified. This cannot be sustained when it comes to “Right to Life” under Art. 21.
Under the statutory scheme vis-à-vis organ donations, the Court observed the sequence of allocation of organs will be in the order -> state list -> regional list -> national list -> Person of Indian Origin -> Foreigner. Therefore, even when it comes to allocation, the Person of Indian Origin and Foreigner fall back in queue.
The Court found that the idea to bring in the concept of a domicile certificate by way of a guideline by the State, under the pretext of protecting the needs of the needy fails the test on two counts– Firstly an executive instruction cannot supplant a Rule and Secondly such an instruction has no reasonable nexus with the object sought to be achieved. “The whole object of making of the Act and the Rules 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, as set out in Paragraph 13(1) and 13(C)(2) of the G-DOT Guidelines by the State violate the constitutional guarantee enshrined to any person under Article 14 of the Constitution”.
State Guidelines, which is in the nature of executive instructions cannot be made to operate in absence of any such sanction under the Act and the Rules and also, when such a guideline of having a domicile certificate of the State has no nexus to the object sought to be achieved i.e. to prevent commercialization of organ trade and misuse of the machinery under the set for such purposes.
The Court observed that Art. 21 is at the heart of the Constitution, a Fundamental Right, available to all persons. Referring to the landmark cases dealing with importance of Art 21 and its availability to all persons, the Court stated that, while interpreting Article 21 the Supreme 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. By way of Paragraph 13(1) and 13(10)(C), the State has tried to introduce a new criterion of requirement of a domicile certificate for registration of a patient for enrolling them on the State List for organ transplant. The introduction of such criteria by a guideline, in the nature of executive instructions is in colourable exercise of powers.
[Vidya Ramesh Chand Shah v. State of Gujarat, 2022 SCC OnLine Guj 2021, decided on 21-11-2022]
Advocates who appeared in this case :
GM JOSHI, SR COUNSEL assisted by MR IG JOSHI, MR VYOM SHAH, ADVOCATES (8726) for the Petitioner(s) No. 1 in SCA Nos.14029/2022 and 18056/2022;
KUNAN B. NAIK, ADVOCATE for the Petitioner(s) No. 1 in SCA Nos.8602/2022;
MR G H VIRK (7392) for the Respondent(s) No. 4 for the Respondent(s) No. 4 in SCA No.14029/2022;
MANISHA LAVKUMAR, SENIOR ADVOCATE assisted by S.S. PATHAK, ADVOCATE for the Respondent(s) No. 2 & 3 in all the Petitions;
ROHAN N. SHAH, AGP for the Respondent(s) No. 1 – STATE in all the Petitions;
VAIBHAV VYAS, ADVOCATE for the Respondent(s) No. 4 in SCA No.18056/2022;
RAJESH K KANANI, ADVOCATE for the Respondent(s) No. 4 in SCA No.8602/2022.
*Sucheta Sarkar, Editorial Assistant has prepared this brief.