R.M. Borde, J.
1. Rule. Rule made returnable forthwith.
2. Heard finally with the consent of learned counsel for the respective parties.
3. The question that needs to be answered in the instant petition is, whether petitioner no. 3, who is mentally challenged and represented by natural guardians father and mother i.e. petitioner nos. 1 and 2, can be a donor for removal of his organs or tissues within meaning to section 2(f) of the Transplantation of Human Organs and Tissues Act, 1994 and, whether he can be permitted to donate human organs for transplantation in favour of petitioner no. 4, his real brother, inspite of bar provided under section 9(1C) of the Act.
4. Petitioners 1 and 2 are the parents of petitioners 3 and 4. Another daughter of petitioners 1 and 2 by name Ashwini was suffering from kidney failure and required transplantation of kidney at the age of six years. Petitioner no. 2 donated her kidney to Ashwini some 15 years back. As a result of which, she could survive till this date. Unfortunately, the only kidney which supported Ashiwini to survive has also failed and at present she is on support of artificial kidney i.e. undergoing dialysis and needs transplantation of kidney. Adding agony to the family, another son of petitioners 1 and 2, i.e. petitioner no. 4 Dr. Atul, is also suffering from kidney failure and also needs to undergo kidney transplantation operation.
5. Petitioner no. 4 has recently completed M.B.B.S. studies. It is the contention of petitioners that the blood group of petitioner no. 3, who is the real brother of petitioner no. 4 and son of petitioners 1 and 2, matches with petitioner no. 4 and he can be a possible kidney donor for petitioner no. 4. Since petitioner no. 3 is suffering from mental retardation, in view of restriction imposed under section 9(1C) of the Act, he cannot be a donor for transplantation of human organ or tissue within meaning of section 2(f) of the Act of 1994. Section 2(f) of the Act defines donor as any person, not less than eighteen years of age, who voluntarily authorises the removal of any of his [human organs or tissues or both] for therapeutic purposes under subsection (1) or sub-section (2) of section 3. Since petitioner no. 3 is suffering from mental retardation, it has to be examined whether he is in a position to voluntarily authorise removal of his organ or tissues. Petitioner no. 3 is adjudged as mentally challenged and, in view of section 9(1C) there is prohibition for removal of organs or tissues. Section 9(1C) of the Act reads thus:
9. Restrictions on removal and transplantation of [human organs or tissues or both]
(1-C) No human organs or tissues or both shall be removed from the body of a mentally challenged person before his death for the purpose of transplantation.
Explanation For the purpose of this subsection,
(i) the expression "mentally challenged person" includes a person with mental illness or mental retardation, as the case may be;
(ii) the expression "mental illness" includes dementia, schizophrenia and such other mental condition that makes a person intellectually disabled;
(iii) the expression "mental retardation" shall have the same meaning as assigned to it in clause(r) of section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996)]
6. Petitioner no. 3 was examined by Consultant Psychiatrist Dr. Vinay Barhale at Kamalnayan Bajaj Hospital, Aurangabad on 25.07.2017 and it is reported that he is mild mentally retarded. It is certified by the Psychiatrist that he is not fit for kidney donation from psychiatric point of view. Petitioner no. 3 has been issued a certificate of mentally retardation for securing benefits under Government policy which is signed by a Committee of three doctors consisting of Assistant Professor of Psychiatry, Associate Professor in Forensic Medicine and Professor of ENT. It is certified that petitioner no. 3 has a disability which is categorised as moderate mental retardation. It is certified that the disability is permanent, non-progressive and not likely to improve.
7. Learned counsel for petitioners urged that the bar contained in section 9(1C) of the Act of 1994 is not total and distinction shall have to be made between mental illness and mental retardation. In view of explanation to subsection (1C) of section 9 of the Act, the expression "mentally challenged person" includes mental illness or mental retardation. It is contended that mental illness is distinguishable from mental retardation and, in the event of donor suffering from condition of mild or moderate mental retardation, it can be adjudged as to whether he is in a position to take decision for himself or is mindful of his own acts or that whether he is in a position to give informed consent. Reliance is placed on a judgment in the matter of Sonia Ajit Vayklip and another Vs. Hospital-Committee, Lilavati Hospital and Research Centre and others reported in 2012(3) Mh.L.J. 351. In the matter before the Division Bench at Mumbai, the donor, a tribal lady from Chhattisgarh was stated to be suffering from mild mental retardation. She was denied permission for transplantation of her kidney to the body of her younger brother. The Court observed that the Committees have not alleged any mental illness but have specifically considered the petitioner as mentally retarded person. The Court further proceeded to examine this aspect by putting relevant questions to petitioner. It was also observed that petitioner always remained present before the Court on all previous hearings and the Court recorded finding that her condition is of a arrested or incomplete development of mind of a person with subnormality of intelligence. In paragraph no.16 of the judgment, the Court observed that after considering the answers given by petitioner no.1 to the questions put by the Court and after considering the fact that petitioner no. 1 is a tribal lady who has studied upto sixth standard, it is not possible to consider petitioner no.1 as mentally retarded person. Father of both petitioners has presented affidavit before the Hospital Committee and the Court, recording consent for donation of kidney of petitioner no.1 for transplantation to petitioner no.2. The Division Bench as such proceeded to grant permission in favour of petitioner no. 1 to donate her kidney to petitioner no.2. Similar exercise was undertaken by learned Single Judge of Madhya Pradesh High Court in Writ Petition No. 5259/2013 in the matter of Himanshu Bamoria Vs. Principal Secretary State of M.P. and others decided on 05.07.2013.
8. Subsection (1C)( ii) of section 9 of the Act provides definition of mental illness which includes dementia, schizophrenia and such other mental condition that makes a person intellectually disabled. The term "lunatic" which finds place in Medical Termination of Pregnancy Act has been replaced by expression "mentally ill person". Section 2(b) of Medical Termination of Pregnancy Act defines mentally ill person as a person who is in need of treatment by reason of mental disorder other than mental retardation. Subsection (1C)( ii) of section 9 of the Act provides that the expression "mental retardation" shall have the same meaning as assigned to it in clause (r) of section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Rights an Full Participation) Act,1995. The term "mental illness" is also defined in section 2(q) of the Persons with Disabilities (Equal Opportunities, Protection of Rights an Full Participation) Act, 1995 to mean any mental disorder or mental retardation whereas the term "mental retardation" is defined in Clause (r) of section 2 of the Act to mean "a condition of arrested or incomplete development of mind of a person which is specially characterised by sub-normality of intelligence." The same definition of mental retardation has been incorporated in section 2(g) of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999. The above-referred legislative provisions clearly show that the persons who are under condition of "mental retardation" be treated differently from those who are found to be mentally ill. While a guardian can make a decision on behalf of a mentally ill person as per section 3(4)(a) of the Medical Termination of Pregnancy Act, the same cannot be done on behalf of a person who is in a condition of "mental retardation".
9. In the matter of Suchita Srivastava and another Vs. Chandigarh Administration reported in (2009) 9 Supreme Court Cases 1 an orphan woman of the age 1920 years suffering from mental retardation was found to be pregnant. She was staying in Government run Welfare Institution. Respondent-Administration approached High Court seeking order of termination of pregnancy. The High Court on consideration of the Expert Committee report, ordered termination of victim's pregnancy. The issues before the Honourable Supreme Court were (i) whether it was legally permissible to terminate victim's pregnancy even though she had not given consent for it and, (ii) whether it was in the best interest of the victim to terminate her pregnancy or continue it. The condition of the victim was described as mild mental retardation. The Honourable Supreme Court observed in paragraphs 40 and 41 of the judgment thus:
40. We must also be mindful of the varying degrees of mental retardation, namely, those described as borderline, mild, moderate, severe and profound instances of the same. Persons suffering from severe and profound mental retardation usually require intensive care and supervision and a perusal of academic materials suggests that there is a strong preference for placing such persons in an institutionalised environment. However, persons with borderline, mild or moderate mental retardation are capable of living in normal social conditions even though they may need some supervision and assistance from time to time.
41. A developmental delay in mental intelligence should not be equated with mental incapacity and as far as possible the law should respect the decisions made by persons who are found to be in a state of mind to moderate "mental retardation".
In the matter before the Honourable Supreme Court, the victim expressed her willingness to carry the pregnancy till its full term and bear a child. The Court also considered the principles contained in United Nations Declaration on the Rights of Mentally Retarded Persons, 1971 which have been reproduced in paragraph no. 50 of the judgment and those are:
"1. The mentally retarded person has, to the maximum degree of feasibility, the same rights as other human beings.
2. The mentally retarded person has a right to proper medical care and physical therapy and to such education, training, rehabilitation and guidance as will enable him to develop his ability and maximum potential.
3. The mentally retarded person has a right to economic security and to a decent standard of living. He has a right to perform productive work or to engage in any other meaningful occupation to the fullest possible extent of his capabilities.
4. Whenever possible, the mentally retarded person should live with his own family or with foster parents and participate in different forms of community life. The family with which he lives should receive assistance. If care in an institution becomes necessary, it should be provided in surroundings and other circumstances close as possible to those of normal life.
5. The mentally retarded person has a right to a qualified guardian when this is required to protect his personal wellbeing and interests.
6. The mentally retarded person has a right to protection from exploitation, abuse and degrading treatment. If prosecuted for any offence, he shall have a right to due process of law with full recognition being given to his degree of mental responsibility.
7. Whenever mentally retarded persons are unable, because of the severity of their handicap, to exercise all their rights in a meaningful way or it should become necessary to restrict or deny some or all of these rights, the procedure used for that restriction or denial of rights must contain proper legal safeguards against every form of abuse. This procedure must be based on an evaluation of the social capability of the mentally retarded person by qualified experts and must be subject to periodic review and to the right of appeal to higher authorities."
The Honourable Supreme Court, respecting the reproductive choice of continuing or terminating pregnancy and considering the convention of 'right of a person with disability', proceeded to set aside the order of the High Court. The Supreme Court also took into consideration the fact that by the time the matter reached Supreme Court for consideration, the pregnant lady who was mentally retarded had entered 20th week of pregnancy. The Honourable Supreme Court as such, while quashing the order of the High Court permitted the mentally retarded orphan woman to continue her pregnancy.
10. The doctrine of Parens-Partiae has been originated in Common Law and is applied in situation where the State must make decisions in order to protect the interest of those persons who are unable to take care of themselves. Traditionally, this doctrine has been applied in cases involving rights of minor and those persons who have been found to be mentally incapable of making informed decision for themselves. The Courts in Common Law jurisdiction have developed two standards while exercising ParensPartiae jurisdiction for the purpose of making reproductive decisions on behalf of mentally retarded persons. Those two standards are "best interest test" and "substituted judgment test".
11. The "best interest test" requires the Court to ascertain the course of action which would serve the best interest of the person in question. It is urged that applying this principle, since it is in the best interest of the mentally retarded donor as well as petitioner no. 4 who is suffering from kidney disease, petitioner no. 3 be accorded permission to donate his kidney. In this context, judgment delivered by the Court of Appeal of Kentucky in the matter of Jerry Strunk Vs. Ava Strunk has been referred. Petition was presented by mother of incompetent, as a committee, for authority to proceed with kidney transplantation. The Circuit Court, adopted finding of County Court which held that the operation was necessary, and appeal was taken. The Court of Appeal held that court of equity had power to permit a kidney to be removed from incompetent ward of the state upon petition of his committee, who was also his mother, for purpose of being transplanted into body of his brother who was dying of fatal kidney disease. Jerry Strunk aged 27 years of age was incompetent. He had an I.Q. of approximately 35, which corresponds with the mental age of approximately six years. He was further handicapped by a speech defect, which made it difficult for him to communicate with persons who are not well acquainted with him. Tommy, his brother was suffering from kidney problem and, as a possible donor, tissues of Jerry were tested and he was found to be the best possible donor. The mother of Jerry Strunk presented a petition on his behalf for removal of kidney. It was contended that it would be in the best interest of Jerry who has emotional bond with his brother and who would be looked after by his brother since his parents were in their 50s. While dealing with the matter, it is observed by the Court of Appeal thus:
"It is a universal rule of equity that where a person is not equal to protecting himself in a particular case, the Court will protect him. As part of the inherent power of equity, a court of equity has full and complete jurisdiction over the persons of those who labor under any legal disability and also over their property. While the general control over such persons has very generally been transferred by statute to probate courts, it does not follow, unless the equity court has been definitely shorn of power, that equity jurisdiction thereover may no longer be exercised. Where legal disability of the individual is shown, the jurisdiction of the court is plenary and potent to afford whatever relief may be necessary to protect his interests and preserve his estates. The court's action in such a case is not limited by any narrow bounds, but it is empowered to stretch forth its arm in whatever direction its aid and protection may be needed. While this is indeed a special exercise of equity jurisdiction, it is beyond question that by virtue thereof the court may pass upon purely personal rights.
It is further observed that the right to act for incompetent in all cases has become recognised as a doctrine of substituted judgment and is broad enough not only to cover property but also to cover all matters touching on the wellbeing of the ward. The doctrine has been recognized in American courts since 1844. Petitioners urge that the aforesaid doctrine of "best interest" and "substituted judgment" be made applicable in the instant case and petitioner no. 3 shall be permitted to donate his kidney.
12. In the case of Re Y. (Mental Ptient : Bone Marrow Donation) reported in (1997) 2 W.L.R.556, the question arose as regards donation of Bone Marrow by a donor who had been severely mentally and physically handicapped from birth and was living in a community home. The donor, on account of illness, was unable to record consent to the test and surgical operation. The defendant (donor's elder sister) was suffering from preleukaemic bone marrow disorder and needed bone marrow transplantation from healthy competent donor. While according permission, the Court applied the best interest test and concluded that it is in the best interest of the donor who is mentally incapable.
13. The tests those are applied in the Common Law jurisdiction may not be applicable to Indian Law. The best interest test requires the Court to ascertain the course of action which would serve the best interest of the person in question. In the instant case, it is urged that the parents i.e. petitioners 1 and 2 are of advanced age and survival of petitioner no.4 who is suffering from kidney disease would be beneficial for petitioner no.3 who is mentally retarded since he i.e. petitioner no.3 would be looked after properly by petitioner no.4. The application of substituted judgment test requires the Court to step into the shoes of a person who is considered to be mentally incapable and, attempt to make a decision which, the said person would have made if, he was competent to do.
14. In the instant case, since it was pointed out that petitioner no.3 is suffering from mild mental retardation, in order to find out as to whether he is entirely incapable of making decision for himself, he was referred to a Psychiatrist. A detailed order was recorded by us on 08.12.2017 and petitioner no. 3 was directed to be examined by Dr. Vijay Barhale, Consultant Psychiatrist. Petitioner no. 3 has been examined by the Consultant Psychiatrist who has reported thus:
"I have examined the client i.e. petitioner number 3 (Mr. Amol Ganpatrao Pawar). He was referred to me for evaluation of his mental fitness for donating his kidney to his brother i.e. petitioner number 4 (Dr. Atul Ganpatrao Pawar).
He was evaluated at Shanti Nursing Home on 14th and 15th December 2017. It was found that clinically and on the basis of psychological testing he is a case of Moderate Mental Retardation with few psychotic symptoms.
His mental condition is quite sever and hence his insight and judgement is impaired.
He is not aware of the purpose for which his evaluation was going on. He is unable to understand the consequences of his act and why he is getting evaluated.
Looking at his mental state, in my opinion he cannot give informed consent and hence is not mentally fit for kidney donation.
From the report of the Consultant Psychiatrist it is clear that petitioner no.3 is having moderate mental retardation with psychotic symptoms. It is opined by the Psychiatrist that looking to his mental state, he cannot give informed consent and is not mentally fit to donate kidney.
15. As has been recorded above, the principles in Common Law jurisdiction based upon "best interest test" cannot be made applicable in view of specific provisions in Transplantation of Human Organs and Tissues Act, 1994. Section 2(f) of the Act defines donor as the person not less than eighteen years of age, who voluntarily authorises removal of his organ or tissues. In the instant matter, petitioner no. 3 is not an individual who is in a position to voluntarily authorise removal of his organ or tissues. Apart from this, section 9(1C) puts bar on removal of human organ or tissues or both from body of a mentally challenged person. In the instant matter, petitioner no.3 is adjudged as suffering from mental retardation and he is reported to be a person not capable of making decision for himself. We, with a view to find out whether petitioner no.3 has a minimum level of understanding, interviewed him by calling him in chamber in presence of the counsel of both the sides. We have noticed that petitioner no. 3 even was not in a position to understand the questions put to him and is incapable of understanding the consequences of his act. His decision making power is severely impaired and we do not doubt the opinion of the Consultant Psychiatrist.
16. The restriction on removal and transplantation of human organs or tissues or both contained in subsection (1C) of section 9 of the Act in respect of mentally challenged person is an absolute prohibition. The Statutory provision is couched in negative language and as such shall have to be construed mandatory. In this connection reference can be made to the judgment of the Honourable Supreme Court in the matter of Vijay Narayan Thatte and others Vs. State of Maharashtra and others reported in (2009) 9 Supreme Court Cases 92. The proviso to section 6 of the Land Acquisition Act which puts prohibition for making a declaration under section 6 after expiry of one year from the date of publication of notification was a matter of consideration before the Court. The Honourable Supreme Court recorded that since the statute is couched in negative language, it is referred as peremptory and mandatory in nature. While interpreting the negative prohibition, in paragraphs 5 to 16 of the judgment, the Honourable Supreme Court has observed thus :
"5. As stated by Crawford:
"263. Affirmative, negative, prohibitory and exclusive words. -
Prohibitive or negative words can rarely, if ever, be directory.... And this is so, even though the statute provides no penalty for disobedience."
(See Crawford: Statutory Construction, p. 523; see also in this connection Haridwar Singh v. Bagun Sumbrui, SCC p. 895, para 13, Lachmi Narain v.Union of India, Mannalal Khetan v. Kedar Nath Khetan, etc.)
6. In this connection we may also refer to the mimansa rules of interpretation, which were our traditional principles of interpretation for over 2500 years, but which are unfortunately ignored in our courts of law today. It is deeply regrettable that in our courts of law lawyers quote Maxwell and Craies but nobody refers to the mimansa principles of interpretation. Most lawyers would not have even heard of their existence. Today our socalled educated people are largely ignorant about the great intellectual achievements of our ancestors and the intellectual treasury which they have bequeathed us. The Mimansa principles of interpretation is part of that great intellectual treasury, but it is distressing to note that apart from the reference to these principles in the judgment of Sir John Edge, the then Chief Justice of the Allahabad High Court in Beni Prasad v. Hardai Bibi, a hundred years ago and is some judgments of one of us (M.Katju,J.) there has been almost no utilisation of these principles even in our own country.
7. Most of the Mimansa principles are rational and scientific and can be utilised in the legal field (see in this connection K.L. Sarkar's Mimansa Rules of Interpretation which is a collection of Tagore Law Lectures delivered in 1905 and which contains the best exposition of these principles.)
8. The Mimansa principles of interpretation, as laid down by Jaimini in his sutras around 6th century B.C. and as explained by Sabar, Kumarila Bhatta, Prabhakar, Mandan Mishra, etc. were regularly used by our renowed jurists like Vijnaneshwara (author of Mitakshara), Jimutvahana (author of Dayabhaga), Nanda Pandit (author of Dattaka Mimansa) etc. Whenever there was any conflict between two Smritis e.g.Manusmriti and Yajnavalkya Smriti, or ambiguity or absurdity in any Smriti these principles were utilised.
9. Thus, the Mimansa principles were our traditional system of interpretation of legal texts. Although originally they were created for interpreting religious texts pertaining to the yagya (sacrifice), gradually they came tobe utilised for interpreting legal texts also (see in this connection P.V. Kane's History of the Dharmashastra, Vol. V, Part II, Ch. 29 and Ch. 30, pp. 12821351), and also for interpreting texts on philosophy, grammar, etc. i.e. they became of universal application. Thus, Shankaracharya has used the Mimansa adhikaranas in his bhaskhya on the Vedanta sutras.
10. While the first edition of Maxwell's book was published in 1875, in India we have been doing interpretation for over 2500 years, as already stated above. There were hundreds of books (all in Sanskrit) written on the subject, though only a few dozens have survived the ravages of time, but even these show how deep our ancestors went into the subject of interpretation.
11. To give an example the mimansakas examine the subject of negative vidhis (negative injunctions such as the one in the proviso to Section 6) very searchingly and exhaustively. First of all, they distinguish between what may be called prohibitions against the whole world, and those against particular persons only. This distinction resembles that between judgments or rights in rem and judgments or rights in personam. The former prohibitions are called Pratishedha and the latter Paryudasa. For example, the prohibitory clause 'Do not eat fermented (stale) food' (na kalanjam bhakshayet) is a Pratishedha; while the prohibition 'those who have taken the prajapati vow must not see the rising sun' is a Paryudasa.
12. In the second place, Pratishedhas are divided practically into two subclauses viz. Those which prohibit a thing without any reference to the manner in which it may be used, and those which prohibit it only as regards a particular mode of using. For instance, 'Do not eat fermented food' prohibits the use of it under all circumstances, while 'Do not use the sorasi vessel at dead of night' forbids the use of the vessel only at the dead of night.
13. Then Paryudasa is also of two kinds. In one case, it relates to a person performing some special act which is not enjoined by a vidhi, as in the case of Prajapati vow. In the other, it relates to a person engaged in performing a vidhi; as for instance, when one is to do shradh during the full moon by virtue of a vidhi but not in the night of the full moon. In this case, the prohibition of doing shradh in the night is a Paryudasa, which is the same as an exception or proviso as we understand these terms. For, the clause 'not in the night: is an exception to the rule 'Perform the shradh during the full moon'.
14. These are the four classes of negative clauses. The first class, of which the kalanja (fermented food) clause is an example, may well be called a condemnatory prohibition. The second class consists also of absolute prohibitions of things under certain circumstances, as in the cas of the sorasi vessel. The third class consi
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sts of prohibitions in relation to persons in a given situation, a in the case of the Prajapati vow. The fourth class restricts the scope of action of persons engaged in fulfilling an injunction, as regards the time, place or manner of carrying out the substantive element of the injunction. 15. Thus we see that in the Mimansa system as regards negative injunctions (such as the one contained in the proviso to Section 6 of the Land Acquisition Act) there is a much deeper discussion on the subject than that done by Western jurists. The Western writers on the subject of interpretation (like Maxwell, Craies, etc.) only say that ordinarily negative words are mandtory, but there is no deeper discussion on the subject, no classification of the kinds of negative injunctions and their effects. 16. In the Mimansa system illustrations of many principles of interpretation are given in the form of maxims (myayas). The negative injunction is illustrated by the kalanja nyaya or kalanja maxim. The kalanja maxim (na kalanjam bhakshayet) states that 'a general condemnatory text is to be understood not only as prohibiting an act, but also the tendency including the intention and attempt to do it'. It is thus mandatory. As has been referred above, there are four classes of negative clauses; first class of which Kalanja clause is an example and it is called a condemnatory prohibition. The second class consists of absolute prohibition of things under certain circumstances, third class consists of prohibition in relation to persons in given situation and the fourth clause restricts the scope of action of persons engaged in fulfilling an injunction. In the instant matter, subsection (1C) of section 9 is a general prohibition against the whole world and not directed against a particular individual or is not made applicable under certain circumstances. Since the language of Statute is plain and clear, the literal interpretation is to be applied and there is ordinarily no scope for consideration of equity, public interest or seeking the intention of the legislature. It is only when the language of the statute is not clear or ambiguous or there is some conflict or the plain language leads to some absurdity than one can depart from the literal rule of interpretation. When there is a conflict between the law and equity it is the law which must prevail. As stated in the Latin maxim dura lex sed lex which means "the law is hard but it is the law". The kalanja principle as referred to above, mandates that a general condemnatory text is to be understood not only as prohibiting act but also the tendency including the intention and attempt to do it. It is thus mandatory. In the instant matter, the principle of kalanja nyaya is to be applied which shall be recorded as mandatory. 17. For the reasons recorded above, no interference is called for in the petition. Petition stands rejected. Rule discharged. No costs. 18. Responding to our request, Shri P.M. Shah, learned Senior Counsel has rendered able assistance for disposal of instant petition. We place on record our appreciation for his valuable contribution.