Kidney donar order / Mr.Justice N.ANAND VENKATESH Writ Petition No.31813 of 2025 V.Periasamy …Petitioner Vs

2025:MHC:2132
In the High Court of Judicature at Madras Dated : 29.8.2025
Coram :
The Honourable Mr.Justice N.ANAND VENKATESH
Writ Petition No.31813 of 2025
V.Periasamy …Petitioner Vs
1.The Chairman, Office of the
Chairman Organization
Committee, Directorate of Medical Education, Kilpauk, Chennai-10.
2.The Principal Secretary to
Government, Health & Family
Welfare Department, Government of Tamil Nadu, Fort St.George, Chennai-9.
3.The District Collector, Erode
District, Theeran Chinnamalai
Maaligai, I Floor, Perundurai Road, Erode Collectorate, Erode-638001.
4.The District Collector,
Thanjavur District,
Nagapattinam – Coimbatore Highway, AVP Azhagammal Nagar, Thanjavur-613010.
5.M/s.Bharathiraja Hospital and
Research Centre Pvt. Ltd.,
No.20, G.N.Chetty Road,
T.Nagar, Chennai-17 …Respondents
PETITION under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records on the file of the first respondent herein in relation to its impugned order dated 27.6.2025 in ref.No.54040/H&D11/4/2025 rejecting the application of the petitioner for undergoing transplantation for renal failure on the ground “as per District Collector Report Family Friend Relationship not established”, quash the same and consequentially direct the first respondent herein to reconsider the application submitted by the petitioner dated 03.12.2024 for undergoing kidney transplant and to pass a fresh order accepting approval for undergoing renal transplantation.
For Petitioner : Mr.G.RM.Palaniappan
For R1 : Ms.M.Sneha, Special Counsel
For R2 to R4 : Mr.E.Vijay Anand, AGP
ORDER
This writ petition has been filed challenging the proceedings of
the first respondent dated 27.6.2025 rejecting the application submitted by the petitioner for undergoing transplantation for renal failure and for a consequential direction to the first respondent to reconsider the application submitted by the petitioner on 03.12.2024.
2. Heard both.
3. The case of the petitioner is as follows :
(i) The petitioner is suffering from renal failure and is regularly undergoing dialysis for the last 2 1/2 years i.e. from 31.10.2022. The petitioner is carrying on business in cable TV network. The petitioner found a willing donor, who voluntarily came forward and consented for donating his organ.
(ii) The petitioner filed an application under Form 11 of the Transplantation of Human Organs and Tissues Rules, 2014 (for short, the Rules) on 03.12.2024. On receipt of the same, the first respondent – Committee called the petitioner for an interview on 27.6.2025. The petitioner also attended the interview before the Committee and submitted all the relevant documents. The petitioner substantiated his acquaintance with the donor by means of a certificate issued by the Tahsildar, Kumbakonam dated 22.9.2024. When the first respondent Committee conducted the inquiry, the petitioner also produced the certificate that the donor is his family friend.
(iii) The grievance of the petitioner is that the first respondent – Committee issued the impugned proceedings dated 27.6.2025 rejecting the application of the petitioner dated 03.12.2024 for transplantation only by relying upon the report of the third respondent dated 13.6.2025 wherein it has been stated that the acquaintance of the donor with the petitioner as family friend has not been established. Aggrieved by that, the above writ petition has been filed before this Court.
4. This Court has carefully considered the submissions of the learned counsel on either side and perused the materials available on record and more particularly the impugned communication issued by the first respondent – Committee.
5. The only issue that requires the consideration of this Court is as to whether the first respondent – Committee had independently applied their mind as mandated under Rule 23 of the Rules while rejecting the application submitted by the petitioner for according approval to undergo renal transplantation.
6. In the case in hand, the donor is not related to the petitioner. The petitioner is bringing in the donor in his capacity as a family friend.
7. A learned Single Judge of this Court, in the case of Dr.J.Kaja Moinudeen Vs. Authorization Committee (Transplantation) rep.by its Chairman [W.P.No.27106 of 2023 dated 09.10.2023], had an occasion to deal with the scheme of the Transplantation of Human Organs and Tissues Act, 1994 (for brevity, the Act) and the
Rules wherein the relevant portions read thus :
“4. The Transplantation of Human Organs and Tissues Act, 1994 was enacted in response to the demand from various national bodies, medical and social experts in the backdrop of infiltration of several rackets and unethical practices in dealing with human organs, particularly kidneys. As public health is a State subject under Entry 6 of List II of Schedule VII of the Constitution, Parliament had no power to enact a comprehensive law on the subject for the country. In 1994, the States of Maharashtra, Himachal Pradesh and Goa passed a resolution under Article 252 (1) of the Constitution authorizing Parliament for making a law on transplantation of human organs. In response, Parliament enacted the Transplantation of Human Organs Act, 1994 (henceforth would be referred to as the Act) which has since been rechristened the Transplantation of Human Organs and Tissues Act,
1994 (vide Act 16 of 2011). The State of Tamil
Nadu passed the requisite resolution under Article
252 of the Constitution adopting the unamended Act in this State.
5. Section 9 of the Act, as it originally stood, imposed restrictions on the removal and transplantation of human organs. Section 9(1) stipulates no human organ removed from the body of a donor before his death shall be transplanted into a recipient, unless the donor is a near relative of the recipient except in a case falling under sub~section 3. Sec.9(3) deals with donors who are not near relatives of the recipient of the organ. Section 9, to the extent it is relevant, is reproduced below :
‘9. Restrictions on removal and transplantation of [human organs or tissues or both] –
(1) Save as otherwise provided in SubSection (3), no human organ removed from the body of a donor before his death shall be transplanted into a recipient unless the donor is a near relative of the recipient.
(1-A) …… …… ……. ……. ……. ……. …….
(1-B) …… …… ……. ……. ……. ……. …….
(1-C) …… …… ……. ……. ……. ……. …….
(2) Where any donor authorizes the removal of any of his human organs after his death under Sub-Section (2) of Section 3 of any person competent or empowered to give authority for the removal of any human organ from the body of any deceased person authorizes such removal, the human organ may be removed and transplanted into the body of any recipient who may be in need of such human organ. Restrictions on removal and transplantation of human organs.
(3) If any donor authorizes the removal of any of his human organs before his death under Sub-Section (1) of Section 3 for transplantation into the body of such recipient, not being a near relative, as is specified by the donor by reason of affection or attachment towards the recipient or for any other special reasons, such human organ shall not be removed and transplanted without the prior approval of the Authorisation Committee.’
Sec.9(4) mandates the constitution of
Authorisation Committees by the Central Government for the Union Territories and by the respective State Governments for the States. Sec.9 (5) requires the Authorisation Committee to hold an inquiry to satisfy itself of the compliance with the Act and the Rules, and then grant approval for removal and transplantation of human organs. Refusal to grant permission is covered under Sec.9(6). Now, Sec.9 must be read in conjunction with the Rules framed under the Act.
6. Originally, the Central Government had framed the Transplantation of Human Organs Rules, 1995. These Rules were notified on 04.02.1995. Rule 6 of the 1995 originally read as follows:
‘6. The donor and the recipient shall make jointly an application to grant approval for removal and transplantation of a human organ, to the
Authorisation Committee as specified in Form 10.’
The Rules were amended in 2008. More specifically, Rule 6 was recast and Rules 6A to 6F were inserted. Rule 6 was amended to read as under:
‘6. The donor and the recipient shall make jointly an application to grant approval for removal and transplantation of a human organ, to the concerned competent authority or Authorisation Committee as specified in Form 10. The
Authorisation Committee shall take a decision on such application in accordance with the guidelines in rule 6-A’.
Rule 6A contemplated the constitution of the
Authorisation Committees at the State Level, with additional Authorisation Committees functioning at the Hospital/District Level. In a case where the donor, the recipient and the place of transplant are in different States, an NOC from the respective domicile State Government should be produced as mandated by Rule 6-B.
It reads:
‘The State level committees shall be formed for the purpose of providing approval orno objection certificate to the respective donor and recipient to establish the legal and residential status as a domicile state. It is mandatory that if donor, recipient and place of transplantation are from different states, then the approval or -no objection certificate- from the respective domicile State Government should be necessary. The institution where the transplant is to be undertaken in such case the approval of
Authorisation Committee is mandatory.’
On a close reading of Rule 6-B, it could be seen that it speaks of ‘approval’ or ‘no objection certificate’. The meaning of these two expressions were examined by the High Court of Delhi in Sadhna Bharadwaj v The Department of Health and Family Welfare [WP (C) 6105 of 2011]. It may not be necessary to explore this decision or the distinctions noted above, in view of the subsequent developments.
7.1 The 2008 Rules were repealed and replaced by the Transplantation of Human Organs and Tissues Rules, 2014 (THOT Rules, 2014) with effect from 27.03.2014. It is significant to note that though the Act was amended in 2011, and the 2008 Rules were superseded by the 2014 Rules, neither the 2011 amendment nor the 2014 Rules were enforced in Tamil Nadu till 2020, since the State had not adopted the same in terms of a resolution under Article 252(1) of the Constitution. It is in this setting, on 30.04.2020, the Government issued G.O.Ms.203 which reads as follows:
‘HEALTH AND FAMILY WELFARE
DEPARTMENT
Notification under the Transplantation of Human Organs (Amendment) Act, 2011 [G.O. Ms. No.
203, Health and Family Welfare (Z1), 30th April
2020, No. II(1)/HFW/9/2020 —
WHEREAS, the Transplantation of Human Organs
Act, 1994 (Central Act 42 of 1994) enacted by the Parliament was adopted by the State of Tamil Nadu by passing a resolution by the Tamil Nadu State Legislature under clause (1) of Article 252 of the
Constitution of India;
AND WHEREAS, in pursuance of clause (1) of
Article 252 of the Constitution of India, resolutions have been passed by the Houses of the Legislatures of the States of Goa, Himachal
Pradesh and West Bengal to the effect that the aforesaid Act should be amended by Parliament; AND WHEREAS, in pursuance of the aforesaid resolutions passed by the States of Goa, Himachal Pradesh and West Bengal, the Parliament had enacted the Transplantation of Human Organs (Amendment) Act, 2011 (Central Act 16 of 2011) which provides for the regulation of removal, storage and transplantation of human organs and tissues for therapeutic purposes and for prevention of commercial dealings in human organs and
tissues;
AND WHEREAS, Sub-Section(2) of Section 1 of the aforesaid Amendment Act provides that the said Act shall apply to a State which adopts that Act by resolution passed in that behalf under Clause (1) of
Article 252 of the Constitution;
AND WHEREAS, the Tamil Nadu Legislative
Assembly considered that it is desirable to have a uniform Law throughout India on the subject matter referred to and hence, passed a resolution under Clause (1) of Article 252 of the Constitution on the 24th March 2020 that the Transplantation of Human Organs (Amendment) Act, 2011 (Central
Act 16 of 2011) be adopted by the State of Tamil
Nadu; Now,
THEREFORE, the Transplantation of Human Organs (Amendment) Act, 2011 (Central Act 16 of 2011) has come into force in this State on and from 24th March 2020.
BEELA RAJESH,
Secretary to Government.’
7.2 The 2014 Rules were notified in the State of Tamil Nadu vide G.O. Ms. No. 314, Health and Family Welfare (Z1), 28th August 2020, and ever since 2014 Rules hold the field in this State. It has become necessary to underscore this statutory evolution essentially because certain authorities in Sadhna Bhardwaj Vs The Department of Health & Family Welfare [W.P.(C) No.6105/2011 dated 01.09.2011] referred to supra, M.Anoop Vs State of Tamil Nadu and Others [W.P.No.18657 of 2009 dated 15.09.2009] and Smt.Kamal Devi Vs The Director of Medical Education and Chairman,
Authorization Committee for Organ
Transplantation, Hyderabad and Another [W.P.No.
5618 of 2019 dated 30.03.2009], are cited at the
Bar, which are pronouncements when Rule 6~B of 2008 Rule was in vogue, which to repeat has since been superseded by the 2014 Rules.
8. Turning to the 2014 Rules, it is significant that the equivalent of Rule 6-B of the 2008 Rules does not find a place in the 2014 Rules. Rule 7 sets out the guidelines to be followed by the Authorisation Committee. Rule 7(3) specifically sets out the procedure to be followed, and the factors that are to be examined in a case where the proposed donor and the recipient are not near relatives as in the present case. Rule 14 is another provision providing for verification of residential status in the case of unrelated living donors. Rule 14 reads as follows:
‘Verification of residential status, etc.- When the living donor is unrelated and if donor or recipient belongs to a State or Union territory, other than the State or Union territory where the transplantation is proposed to be undertaken, verification of residential status by Tehsildar or any other authorised officer for the purpose with a copy marked to the Appropriate Authority of the State or Union territory of domicile of donor or recipient for their information shall be required, as per Form 20 and in case of any doubt of organ trafficking, the Appropriate Authority of the State or Union territory of domicile or the Tehsildar or any other authorised officer shall inform police department for investigation and action as per the provisions of the Act.’
It is apparent from the aforesaid Rule that what is now contemplated is only a verification of the residential status by the Tahsildar or other authorised officer of the donor or the recipient, if either of them resides in a State or Union Territory other than the State or UT where the transplantation is proposed to be done. Once this is done, this material can be placed before the Authorisation Committee in terms of Rule 7(3) to take a call as to whether permission ought to be granted in terms of Rule 19 read with Section 9(3) of the Act. Rule 19 reads as follows:
‘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 a 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.’
9. It is very evident that the requirement of a NOC, which was incumbent under Rule 6~B of the 2008 Rules is no longer a requirement under the 2014 Rules. In fact, the requirement of a NOC is seen only in Form 21 which requires an NOC from a Senior Embassy Official in a case under Rule 20(a) of the 2014 Rules where the donor or recipient are foreigners.
10. Now may arise a question as to which Authorisation Committee must grant permission in cases such as the one at hand where the donor and recipient are from one State, and the hospital where the organ transplantation is proposed to happen is in another State. The issue is no longer res integra. Having regard to the scope and purpose of the Act, the Supreme Court in Kuldeep Singh v. State of Tamil Nadu [(2005) 11 SCC 122] has observed as under:
‘The object of the statute is crystal clear that it intends to prevent commercial dealings in human organs. The Authorisation Committee is, therefore, required to satisfy that the real purpose of the donor authorising removal of the organ is by reason of affection or attachment towards the recipient or for any other special reason. Such special reasons can by no stretch of imagination encompass commercial elements. Above being the intent, the inevitable conclusion is that the Authorisation Committee of the State to which the donor and the donee belong have to take the exercise to find out whether approval is to be accorded. Such Committee shall be in a better position to ascertain the true intent and the purpose for the authorisation to remove the organ and whether any commercial element is involved or not. They would be in a better position to lift the veil of projected affection or attachment and the so~called special reasons and focus on the true intent. The burden is on the applicants to establish the real intent by placing relevant materials for consideration of the Authorisation Committee.’
‘It is always open to the Authorisation Committee considering the application to seek information/materials from the Authorisation Committees of other States/State Governments, as the case may be for effective decision in the matter. In case any State is not covered by the operation of the Act or the Rules, the operative executive instructions/government orders will hold the field. As the object is to find out the true intent behind the donor-s willingness to donate the organ, it would not be in line with the legislative intent to require the Authorisation Committee of the State where the recipient is undergoing medical treatment to decide the issue whether approval is to be accorded. Form 1 in terms requires the applicants to indicate the residential details. This indication is required to prima facie determine as to which is the appropriate Authorisation Committee. In the instant case, therefore, it was the Authorisation Committee of the State of Punjab which is required to examine the claim of the petitioners.’
The factual context in which the Hon-ble the
Supreme Court has made the above pronouncement is that a NOC was sought from the Director of Medical Education, Tamil Nadu, by the petitioner who hailed from Punjab, on the premise that the operation was to be performed at a hospital in Chennai. The Supreme Court held that since the donor and the recipient were from the State of Punjab, it is the Authorisation Committee of that State which can issue approval for transplant, which can then be transmitted to the State of Tamil Nadu for necessary action.
11. The case at hand is a converse situationwhere the donor and recipient are from this State and the operation is to be performed in another State ie., the State of Kerala.
12. It is also clear that Rule 14 of the 2014
Rules embodies the principle laid down in Kuldeep
Singh case as it requires the Appropriate Committee of the domicile of the donor/recipient to inform the police in case any organ~trafficking is suspected. Here it is required to be noted that the Appropriate authority is the one notified under Section 13 of the Act and that it should not be confused with the Authorisation Committee under the Rules.
13. Reverting to the facts of this case, admittedly the donor and the recipient are from the State of Tamil Nadu. Thus, applying the decision in Kuldeep Singh v. State of T.N., [(2005) 11 SCC 122], it is the Authorisation Committee in the State of Tamil Nadu which must examine the case of the petitioner with reference to the parameters under Rule 7(3) and decide whether approval can be granted in terms of Rule 19 of the 2014 Rules.
14. It is also the complaint of the petitioner that the hospitals in the State of Tamil Nadu are avoiding transplants if the donors are not relatives, though it was not substantiated. Suffice to say that the transplants from non-relative donors are contemplated under Section 9(3) of the Act, and Rules 14 and 19 of the 2014 prescribed the procedures too. Consequently, refusal by hospitals in the State of Tamil Nadu to perform transplants concerning unrelated donors would be plainly illegal. That apart, in the State of Tamil Nadu guidelines have been laid down for transplants from non~relative donors vide G.O Ms.175 dated 06.06.2008. For better appreciation, the GO runs thus:
‘ABSTRACT Health & Family Welfare
Department – Organ Transplant – Authorization
Committee Procedures – Additional responsibilities
– Detailed instructions – orders issued Health and
Family Welfare (Z1) Department Thiruvalluvar
Aandu, 2039 Vaigasi – 24 G.O. (Ms) No. 175 Dated: 6.6.2008.
Read : 1. G.O. (Ms) No. 287 Health and Family
Welfare Department Dated 5.5.1995. 2. G.O.(Ms) No.341 Health and Family Welfare Department dated 29.10.2003, 3. G.O.(Ms) No.330, Health and Family Welfare Department dated 10.9.2007.
Order:-
In keeping with the Transplantation of Human Organs Act 1994, the authorization committee has been constituted/ expanded in the Government Orders read above. Accordingly, the authorization committee has functioned over the years and is involved in screening the donors who are not near relatives of the recipients. In order to streamline the functioning of the authorization committees and make it more effective, the following orders are issued.
2. (a) In the case of records to be submitted by the donor and the prospective recipient, proof of residence with photograph shall be submitted having been duly certified by local revenue authorities.
(b) In the event of submission of false records, criminal cases should be filed against the donor and/or recipient (in case of minors the parents or guardians signing the forms) submitting it. The authorization committee shall recommend to the appropriate authority to file a criminal case as and when the situation arises of false records being submitted.
(c) The authorization committee is also permitted to refer doubtful cases to the police or revenue department for further enquiry.
3. Considering that some donors/recipients are known to contradict earlier statements made before the authorization committee, all authorization committee sittings shall be video graphed.
4. Considering that doubts are raised about relationship claims made by some foreign nationals (who are not Indian citizens), all such donors/ recipients shall appear before the authorization committee with relevant records.
5. The current practice of the authorization committee permitting a change in the hospital chosen by the recipient for transplant surgery shall continue. Considering that the patient’s convenience is of primary importance, the authorization committee shall issue a fresh permission letter to the second hospital without insisting on No Objection Certificate from the previous hospital. Personal appearance of donor or recipient will not be necessary.
6. The authorization committee shall ensure that clearances and rejections are uploaded on the website maintained for the purpose on the same day on which sitting was held.
7. A donor who is rejected by the Authorization committee shall be considered ineligible to appear again.
8. Considering that transplant hospitals wish to benefit from counseling professionals and the need for professional counseling being provided to live donors, the authorization committee is authorized to give recognition (certification) to counseling institutes in the State to provide additional counseling support to live donors.
9. Any form of paired donor exchange between near relatives shall necessarily be processed by the authorization committee in order to ensure that the arrangement is genuine.
10. In case of living donor who is not a nearrelative of the recipient, the onus of responsibility in determining the motive of the donor to be that of affection or attachment towards the recipient or for any other special reason (Section 9 (3) of the Transplantation of Human Organs Act 1994), shall be solely that of the authorization committee.
(BY ORDER OF THE GOVERNOR) V.K.SUBBURAJ,
SECRETARY TO GOVERNMENT.”
8. It is also relevant to take note of a common order passed by another learned Single Judge of this Court in the case of Sudha
Mathesan & another Vs. Authorisation Committee
(Transplantation) rep.by its Chairman [W.P.No.13918 of 2024 etc. cases dated 30.5.2024] wherein the relevant portions are extracted as hereunder:
“8. Kidney transplantation is done mostly from living donors. Though the Act does not ban donation of kidney in favour of a person who is not a near relative and the only restriction is that transplantation can be done only after prior approval by the State Authorisation Committee, yet the transplant surgeons are hesitant to carry out kidney transplants between unrelated persons.
The learned counsel for the second respondent states that the doctors are in a state of fear as they are not in a position to handle the backlash if something goes wrong. That is why, the hospitals or the doctors do not forward the applications to the Authorisation Committee on their own. This has led to filing of many cases before this Court only for the purpose of securing direction for forwarding the applications for approval by the Authorisation Committee. I endorse the suggestion made by the learned counsel for the second respondent that in future, there is no need to file writ petitions only for this relief. This is because the Act does not contemplate such a course of action. Application in Form – 11 for approval is to be jointly signed and submitted by the prospective donor and prospective recipient directly before the Authorisation Committee. The applications can be submitted in person or through registered post or through online mode. It is for the State Government to issue guidelines regarding the mode of submission. Till such guidelines are issued, it is open to the parties to choose. The application must be submitted along with the completed Forms. I exonerate the hospitals from undertaking the task of forwarding the applications.
9. The duties of the registered medical practitioner have been set out in Rule 5 of Transplantation of Human Organs and Tissues Rules, 2014. The doctor has to sign Form – 4 which certifies the medical fitness of the living donor. The Form employs the expression “informed consent”. What does this mean? Rule 5(3) mandates that the registered medical practitioner shall, before removing any human organ or tissue from a living donor, satisfy himself on the following aspects:
(i) the donor has been explained of all possible side effects, hazards and complications.
(ii) The donor has given his authorisation in the relevant Form.
(iii) The physical and mental evaluation of the donor has been done; he or she is in proper state of health; he or she is not mentally challenged and is fit to donate the organ or tissue. The expression “informed consent” occurring in Form – 4 only means that the doctor has warned the donor about the consequences flowing out of his act of donation and is satisfied regarding the aforesaid aspects. It cannot extend to anything beyond. It would be in the interest of the doctor concerned to videograph the entire session wherein the counselling takes place. The doctor is not supposed to encourage the donor to donate his/her organ. When the donor approaches the doctor and informs the doctor that he/she is willing to donate his/her organ, the doctor has to apprise the donor about the consequences. After the issuance of Form – 4, it is for the donor and the recipient to move the Authorisation Committee.
10. {Rule 5(3) opens thus:
‘The registered medical practitioner shall, before removing any human organ or tissue from a living donor, shall satisfy himself -‘
Rule 5(3) employs ‘shall’ twice. Human beings are endowed with two kidneys though one would suffice. Rule 5(3) also would do well with one ‘shall’. It is for the grammarians to comment on this.}
11. The Authorisation Committees shall not insist that the application must be received from the hospital. There is a term called “through proper channel”. The hospital cannot be treated as the proper channel for the purpose of submission of the application.
12. Section 19 of the Act makes commercial dealings in human organs as punishable offence. The moot question that arises for consideration is the manner of enquiry into the applications when the prospective donor is not a near relative. Rule 7(3) set outs the procedure of enquiry. Rules 7(3) and 19 of the Transplantation of Human Organs and Tissues Rules, 2014 are as follows:’Rule 7 Authorisation Committee.-
(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 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.’
‘Rule 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.’
13. From the language of Form – 18 certificate issued by the Authorisation Committee, one can conclude that permission will be granted, if the donation is out of love and affection and there is no financial transaction between recipient and donor and there is no pressure on / coercion of the donor. The members of the Authorisation Committee are human beings. What goes into their thought process? One factor that is taken into account is the material indicating the length of association between the donor and the recipient. This may not always be a sound approach. There is something called ‘love at first sight’. Love and affection are intangible sentiments. On the other hand, time is a measurable. Something that cannot be measured cannot be determined by a measurable value.
14. I am conscious of the decision of the Hon-ble Division Bench of Bombay High Court reported in 2012 SCC Online Bom 64 (Sonia Ajit Vayklip Vs. Hospital Committee, Lilavati Hospital). It was held that where the donor and the recipient are shown to be near relatives and the case does not fall under any of the three exceptions set out in Section 9(4) of the Act, the Authorisation Committee has no power to make further enquiry about the motive of donation because in such cases there would be no commercial element. After so holding, the learned Judges went on to observe that where the donor is not a near relative, the burden is on the applicants to establish the real intent by placing relevant materials for consideration of the Authorisation Committee and heavy burden lies on them to establish.
15. The Hon-ble Division Bench took note of the decision of the Hon-ble Supreme Court of India reported in (2005) 11 SCC 122 (Kuldeep Singh Vs. State of Tamil Nadu). Paragraph No.12 reads as follows:-
’12. Where the donor is not “near relative“ as defined under the Act, the situation is covered by Sub~Section (3) of Section 9. As the Form I in terms of Rule 3 itself shows the same has to be filed in both the cases where the donor is a near relative and where he is not, so far as the recipient is concerned. In case the donor is not a near relative the requirement is that he must establish that removal of the organ was being authorized for transplantation into the body of the recipient because of affection or attachment or for any special reasons to make donation of his organ. As the purpose of enactment of the Statute itself shows, there cannot be any commercial element involved in the donation. The object of the Statute is crystal clear that it intends to prevent commercial dealings in human organs. The
Authorisation Committee is, therefore, required to satisfy that the real purpose of the donor authorizing removal of the organ is by reason of affection or attachment towards the recipient or for any other special reason. Such special reasons can by no stretch of imagination encompass commercial elements. Above being the intent, the inevitable conclusion is that the Authorisation Committees of the State to which the donor and the donee belong have to take the exercise to find out whether approval is to be accorded. Such Committee shall be in a better position to ascertain
the true intent and the purpose for the authorisation to remove the organ and whether any commercial element is involved or not. They would be in a better position to lift the veil of projected affection or attachment and the so called special reasons and focus on the true intent. The burden is on the applicants to establish the real intent by placing relevant materials for consideration of the Authorisation Committee. Whether there exists any affection or attachment or special reason is within the special knowledge of the applicants, and a heavy burden lies on them to establish it. Several relevant factors like relationship if any (need not be near relationship for which different considerations have been provided for), period of acquaintance, degree of association, reciprocity of feelings, gratitude and similar human factors and bonds can throw light on the issue. It is always open to the Authorisation Committee considering the application to seek information/materials from Authorisation Committees of other States/State Governments as the case may be for effective decision in the matter. In case any State is not covered by the operation of the Act or the Rules, the operative executive instructions/Government orders will hold the field. As the object is to find out the true intent behind the donor-s willingness to donate the organ, it would not be in line with the legislative intent to require the Authorisation Committee of the State where the recipient is undergoing medical treatment to decide the issue whether approval is to be accorded. Form I in terms requires the applicants to indicate the residential details. This indication is required to prima facie determine as to which is the appropriate Authorisation Committee. In the instant case, therefore, it was the Authorisation Committee of the State of Punjab which is required to examine the claim of the petitioners.’
Section 9(3) of the Act envisages donation by reason of affection or attachment towards the recipient or for any other special reasons. In the decision of the Hon-ble Bombay High Court as well as the Hon-ble Supreme Court, the expression ‘special reasons’ was considered and interpreted. The burden would be on the applicant to establish the existence of special reasons. But where the applicants do not plead or project special reasons, the position will be different.
16. In Vijaykumar Hariram Sahu V. State of Maharastra 2012 SCC Online Bom 1430, it was held as follows:-
’11. Where the donor and the donee are not near relatives, as in the present case, the Act mandates an application of mind to whether the proposed transplantation of a human organ or a tissue is motivated by a reason of affection or attachment of the donor to the recipient or by any other special reason. Affection or attachment is hence one, but not the only reason recognized by the Statute. Parliament did contemplate a donation of an organ or tissue for any other special reason. Those reasons have not been catalogued but have to be genuine and weighty. The object and purpose of the Act is to prohibit commercial dealings in the transplantation of human organs and tissues. Parliament was cognizant of the fact that unless the process was regulated, human beings in our society which suffers from poverty, illiteracy and ignorance, could be subjected to exploitation for the purposes of transplantation. Where the proposed transplantation is not between near relatives, the Authorization Committee is specifically under a mandate under Rule 6F(d) to evaluate and ascertain that there is no commercial transaction between the donor and the recipient. The Authorization Committee has, therefore, to consider the explanation which is furnished of the link between the donor and the donee, of the circumstances which led to the offer being made, documentary evidence of the link, reasons why the donor wishes to donate and can even look at old photographs to show the link between the donor and the donee. The Authorization Committee has to ascertain that no middleman or tout is involved.
The financial status of the donor and the recipient has to be probed and in the case of a gross disparity, that has to be taken note of having regard to the object of preventing commercial dealings. Where there is a gross disparity in the financial status of the donor and donee, the legislature was cognizant of the need to ensure that this had not been used to suborn 10 of 14 WP(L).2328.2012 the will of the donor. The views of the next of kin of the proposed unrelated donor are required to be ascertained in order to ensure that such persons are aware about the intention of the donor to donate an organ. Their views are also significant for assessing the authenticity of the link between the donor and the recipient and the reasons for the donation. Any strong views, disagreement or objection of such kin is to be recorded and taken note of. At this point it is necessary to clarify that the Rules do not confer an overriding veto on the next to kin of the donor. The Act balances the autonomy of the individual as a decision maker with the societal interest in protecting the concerns of the family. Both the Act and the Rules, seek to bring about a healthy balance between the need for transplantation of human organs and tissues in order to save lives on the one hand and the public interest in ensuring that this does not become a facade for exploitation or for trafficking in human organs and tissues. The views of the next of kin are entitled to deference but this is not to suggest that the Authorization Committee, once a disagreement is expressed, would have no power to take an independent decision based on the best interest of the donor and the donee. Ultimately, the Authorization Committee has to take a judicious decision after considering all the facts and circumstances.
12. The State and District level Authorization Committees consist, among other persons, of experts from the medical field and members of civil society. Having regard to their broad based experience of medicine, society and life, the Authorization committees have to discharge their duties bearing in mind the social purpose implicit in the transplantation of human organs and tissues, while at the same time ensuring that this does not take place by abusing the bodily integrity of human beings.’
17. Let us put ourselves in the shoes of the applicants. They can only assert that there is no commercial dealing. They cannot be called upon to prove the negative. Rule 17 provides for scrutiny of application. In case of doubt, explanation can be sought from the applicants and there can also be verification done through the officials of the Government. Too much of burden cannot be laid on the shoulders of the applicants. Unless there is definite material to establish that there are financial dealings involving the parties, permission ought not to be withheld or rejected. If the donor states that out of love and affection, he/ she is making the donation, in the absence of any credible reason, the averment should not be doubted. The Government must come out with definite guidelines in this regard. Otherwise, the issue will be left to the arbitrary discretion of the Authorisation Committee. If the recipient is well placed and connected, the decision of the committee will swing in his favour. If the recipient is not all that influential, by passing a template order, permission can be rejected. One must take note of the fact that parliament never intended to rule out donation by non~near relatives. The parliamentary intent ought not to be frustrated by adopting a rigid approach. One need not take a cynical view that a non~near relative will not donate out of altruistic considerations.
18. All religions proclaim that love and charity are the highest virtues. Hundreds and thousands have given up their lives for larger and impersonal causes. It is not necessary that selfish consideration should underlie all human endeavour. Certain statements can be taken at their face value. That is why, I hold that the statement by a donor that he/she is making the donation out of love and affection for the recipient must be taken at its face value. Of course, this averment shall be rejected if there is definite material evidencing passing of consideration. Subject to there being no evidence that money or money-s worth has changed hands, permission should be granted.
19. Altruism is very much present in human beings. Human beings in times of danger and calamity are known to save others even at the costs of their own lives. The Hon-ble Kerala High
Court vide order dated 20.10.2010 in
W.P.(C)No.31925 of 2010 (K.K.Noushad Vs. The District Level Authorisation Committee) remarked that when before the Writ Court, the donor and his family members are also present, there is no reason to suspect the altruism in the offer made by the donor for saving the life of the recipient.
20. In Mano Ranjan Rout, the Hon-ble Orissa High Court held that necessary approval cannot be denied on the ground of mere suspicion and the mere existence of disparity in income of the donor and the recipient by itself could not have been a reason to deny approval by raising suspicion that there would necessarily be a commercial transaction between the parties.
21. The Hon-ble High Court of Kerala declared in Soubiya v. District Level Authorisation Committee for Transplantation of Human Organs,
Ernakulam [2023 (6) KHC 293] that a presumption that a person in financial requirement would only act for monetary gain is an affront to the dignity of an individual and is against the constitutional imperatives. This decision was followed in Deepa PM Vs. State of Kerala (W.P.(C).No.38624 of 2023 dated 19.12.2023).
22. The Madras High Court in S.Samson Vs.
Authorisation Committee 2008 SCC Online Mad 317 held that the Authorisation Committee must give a cogent and convincing reasoning for concluding that there exists financial bonding between the recipient and the donor. The reasons must be valid and acceptable. An opportunity of hearing should be given to the parties concerned. The matter has to be looked into with the avowed object of helping the needy whose life is in danger. The authorities concerned while exercising the power under the Act must look into the issue in a manner so as to save the life of a person and the matter should not be looked into from a technical point of view. It was further declared that since organ donation is aimed to give immediate relief to the needy person whose life is in peril, time is the essence in a matter of this nature. The Authorisation Committees should not sit over the applications. They must decide speedily.”
9. What is apparent from the above two decisions is that there is hesitation on the part of the Authorities to grant approval to carry out kidney transplants between unrelated persons. This is more so since, in the absence of stringent provisions, it will ultimately result in exploitation of the poor and the disadvantaged and that money will become the only criterion for the transplantation of organs. In such a scenario, the very object of the Act and the Rules will be defeated.
10. A combined reading of Rules 7(3) and 19 of the Rules and Form 18 certificate issued by the Authorisation Committee, in no uncertain terms, mandates that permission will be granted if (i) the donation is out of love and affection, (ii) there is no financial transaction between the recipient and the donor and (iii) there is no pressure/coercion exerted on the donor.
11. At this juncture, it will be relevant to take note of the judgment in the case of Kuldeep Singh Vs. State of Tamil Nadu [(2005) 11 SCC 122] wherein the Hon’ble Apex Court held that the Authorisation Committee is required to satisfy that the real purpose of the donor authorising removal of the organ is by reason of affection or attachment towards the recipient or for any other special reason. The term “special reason”, by no stretch of imagination, encompasses commercial elements. As rightly held by this Court in the case of Dr.J.Kaja Moinudeen, Rule 14 of the Rules embodies the principle laid down in the decision of the Hon’ble Supreme Court in Kuldeep Singh.
12. The tricky question that is involved is as to who must establish that there is no commercial dealing in a case of the donor and the donee not being near relatives.
13. The learned Single Judge of this Court in the common order dated 30.5.2024 in the case of Sudha Mathesan, dealt with this particular issue and held that the parties can only assert that there is no commercial dealing and that beyond it, the burden cannot be laid on their shoulders unless there is definite material to establish that there are financial dealings involving the parties. In other words, the first respondent – Committee is not expected to approach the case with suspicion unless the materials collected sound otherwise.
14. In the case in hand, the first respondent – Committee has placed reliance upon only the report from the third respondent dated 13.6.2025, the relevant portions of which are extracted as hereunder:
“NkYk; jpU.fNzrd; j/ng re;jpuNrfh; vdg;th; jpU.nghparhkp j/ng NtYrhkp vd;gth; eljj;p te;j Nfgps; fk;ngdpapy; fle;j 2014 Mk; Mzb;y; Collectioner Mf Ntiy nra;J te;jjhfTk;> mtuJ kidtp jpUkjp.mUzh vdg;th; jpU.nghparhkp vdg;thpd; tlPb;y; tPl;L Ntiy nra;J te;jjhfTk; ,jd%; yk; FLk;g ez;guhf gofp tUtjhfTk; tprhuizapy; njhptpjJ;s;shh.; ,e;Neh;tpy; jpU.fNzrd; vdg;tUk; jpU.nghparhkp vd;gtUk; FLkg; ez;gh; vd;gjw;F vtt;pj Mtzq;fSk; rkhg;g;pf;fgg;ltpy;iy. Fk;gNfhzk; tll;hl;rpauhy; toq;fg;gll; X.K.5017/2014/m7 ehs; : 24.09.2024 rhd;wpd; mbg;gilapy; kl;LNk ,UtUk; FLkg; ezg;hf;s; vdj; njhpa tUfpwJ. vdNt> Nkwg;b egh;fs; FLkg; ezg;h;fs; vd;w cwTKiwapid cWjp nra;a ,aytpy;iy vdj;
njhptpjJ;s;shh.; vdNt> rpWePuf jhdk; mspfF;k>; mfpy;NkL Kjy; tPjp> NrlL; fhydp> fjT vz; 7V vd;w Kfthpapy; trpjJ; te;j> jw;NghJ ehkff;y; khtll;k;> gs;spghisak; 15 v];gpgp fhydpapy; FbapUe;JtUk; jpU.fNzrd; j/ng re;jpuNrfh; vdg;tUk>; rpWePuf jhdk; ngWk; jQr;ht+h; khtll;k;> Fk;gNfhzk;> %q;fpy; nfhy;iy njU> fjT vz;.61 vd;w Kfthpapy; trpj;J tUk; jpU.nghparhkp j/ng NtYrhkp vdg;tUk; FLkg; ez;ghf;s; vd;gjw;F NghJkhd Mjhu
Mtzq;fs; VJk; rkhg;;gpf;fgg;lhjjhYk;> NkYk; rpWePufk; jhdk; ngWk; jpU.nghparhkp j/ng NtYrhkp vdg;tu; jQr;ht+h; khtll;j;ijr; Nrhe;;jjhy>; Nkw;gb egiu tprhuiz nra;a ,aytpy;iy vd;gjhYk;> Nkwg;b ,UtUk; FLkg; ezg;hf;s; vd;gij cWjp nra;a ,aytpy;iy vd;gijAk;> njhlh;Gila Mtzq;fis ,j;Jld;
,izj;jDg;gpAs;Nsd; vd;gijAk; njhptpj;Jf; nfhs;fpNwd;.”
15. A careful reading of the above report dated 13.6.2025 would show that the donor was working under the petitioner and that their family became close to the family of the petitioner. Therefore, it was claimed that they are family friends. However, the third respondent has given a finding to the effect that no documents have been filed to establish that the family of the donor and the family of the recipient namely the petitioner are family friends. The third respondent is expecting the petitioner to prove the negative.
 
16. It is incomprehensible as to how the family friends can establish their relationship through documents. Emotion plays a part in a relationship involving friends and it is not determined through documentation. Hence, the very basis, on which, the report has been given by the third respondent, lacks sound reasoning.
17. It is also seen from the records that all the other relevant forms have been filed along with the certificate and the only ground that has been put against the petitioner is that the third respondent has come to the conclusion that the donor and the recipient did not establish through the documents that they are family friends. The decision taken by the first respondent – Committee purely on the basis of the report of the third respondent – Committee does not satisfy the mandatory requirements under Rule 23 of the Rules. There is no independent application of mind and the decision taken by the first respondent – Committee suffers from error of law apparent on the face of the impugned order.
18. In the light of the above discussions, the writ petition is allowed and the impugned proceedings of the first respondent dated
27.6.2025 is hereby set aside. There shall be a direction to the family of the donor and the family of the recipient to be present before the first respondent – Committee on 04.9.2025. On such appearance, the first respondent – Committee shall scrutinize the application and the forms already submitted and shall satisfy themselves that the organ donation is out of love and affection, that there is no financial transaction between the recipient and the donor and that there is no pressure or coercion exerted on the donor. On satisfaction of these requirements and the completion of procedure prescribed under the Rules, a final decision shall be taken by the first respondent within a period of four weeks from the date of inquiry. No costs.
29.8.2025
Index : Yes Neutral Citation : Yes
To
1.The Chairman, Office of the
Chairman Organization
Committee, Directorate of Medical Education, Kilpauk, Chennai-10.
2.The Principal Secretary to
Government, Health & Family
Welfare Department,
Government of Tamil Nadu, Fort St.George, Chennai-9.
3.The District Collector, Erode
District, Theeran Chinnamalai
Maaligai, I Floor, Perundurai Road, Erode Collectorate, Erode-638001.
4.The District Collector, Thanjavur District,
Nagapattinam – Coimbatore Highway, AVP Azhagammal Nagar, Thanjavur-613010.
RS 
N.ANAND VENKATESH,J
RS
W.P.No.31813 of 2025
29.8.2025