K. Umamahesh vs State of Tamil Nadu and others

This writ petition seeks a mandamus to direct respondents 2 and 3 to receive the petitioner''s body in the event of his death and use the same for

the purpose of anatomical dissections, treatment or medical relief including transplant of vital organs to deserving donees.

As per S. 4 of Tamilnadu Anatomy Act, dead bodies left unclaimed in a hospital could be taken by the relevant authority for anatomical

examination, etc. But, there is no provision in the said enactment or in any other law for such authority to take other dead bodies voluntarily given

since they cannot strictly be classified as ""unclaimed"". But, the petitioner herein is voluntarily offering, on his death, his dead body and since the

respondents are refusing to accept such offer, the petitioner has come forward with this writ petition, seeking the abovesaid mandamus.

In requesting such a mandamus from this Court, the supporting affidavit of the petitioner refers to two earlier precedents of this Court. One is the

decision in W.P. No. 1843 of 1987, which was filed by none other than the present petitioner''s father Dr. P. Krishnan. By order D/- 3-3-1987

therein, Mohan, J., as he then was, granted the mandamus directing respondents 2 and 3 herein to take possession of the said Krishnan''s body, on

his death, and use it for the abovesaid purpose, Another is the decision in W.P. No. 1690 of 1988. By order D/- 19-1-1989 Venkataswami, j., as

he then was, following the earlier order D/- 3-3-1987 in W.P. No. 1843 of 1987, granted the mandamus prayed for by one K. R. Srinivasachari,

directing the 2nd respondent herein and the Director of Medical Education to accept the voluntary donation of the body of the petitioner therein

after his death for the abovesaid purpose. The learned judge, while granting another prayer in the said writ petition, directed the 1st respondent

Government of Tamilnadu ""to initiate within six months ......... proceedings to introduce necessary amendment in the Act or in the Rules"" made

thereunder to enable the officer in charge under the abovesaid Act to accept such voluntary donations of bodies of persons after their death.

Learned Counsel for the petitioner drew my attention to the abovesaid judgments of this Court and submitted that similar order should be

passed in the present writ petition also. But, I am unable to concede to his request for the following reasons :- Admittedly the abovesaid enactment

does not provide for the present situation as already indicated, nor learned Counsel for the petitioner has shown to me any other law by which a

legal duty is cast on the respondents necessarily to receive the dead body of the petitioner, on his death, when it is not an unclaimed dead body. It

is well known that in order to obtain a writ or order in the nature of mandamus, the applicant must show that he has a legal right to the performance

of alegal duty (as distinguished from a discretion) by the party against whom the mandamus is sought and such right must be subsisting on the date

of the petition. (Vide The Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. Vs. Sipahi Singh and Others, , Bombay Union of

Journalists and Others Vs. The State of Bombay and Another, , and Kalyan Singh v. State of U.P. AIR 1962 SC 1183, 1962 All LJ 523 Such a

duty may be one imposed by the Constitution, a statute, common law or by rules or orders having the force of law. In the present case as already

mentioned no such legal right or corresponding legal duty is shown by the petitioner herein.

All that the learned Counsel for the petitioner submits is that the above referred two judgments should be taken as the law laid down in this

regard and that hence the above referred to legal right and the corresponding legal duty are established. Hence, according to him, the mandamus

prayed for should be given.

It is clear that in the writ petitions referred to above and in the present writ petition, there is no law as such (Constitution, statute, common law

or rules or orders having the force of law) which cast the above referred to legal duty on the respondents and consequently gives rise to

corresponding legal right to the petitioner herein. While so, the above referred to decision cannot be cited as precedents or the law which casts the

abovesaid duty on the respondents. Hence in view of the above referred to Supreme Court decisions, I am unable to follow the above referred

decisions of this Court.

That apart, it must also be noted that the first of the abovesaid two decisions of this Court were given since there was no objection by the

respondents in the said case for granting the prayer therein. The relevant observation therein of the learned Judge is as follows :-

The learned Government Pleaded, on instructions, states that should the body be delivered at the mortuary in the Madras Medical College, the

Anatomy Department has no objection to take it as desired by the petitioner. Mr. V. P. Raman, learned Counsel for the petitioner, has no

objection to this course and he says that in the unfortunate event of the death of the petitioner, necessary arrangements will be made for the body

to be delivered at the mortuary.

7A. Learned Counsel for the petitioner herein also submits that despite the direction given by the learned Judge of this Court in the above said

W.P. No. 1690 of 1988 to the 1st respondent Government to initiate within six months proceedings to introduce necessary amendments in the

abovesaid Act or in the rules thereunder to enable the officer concerned under the said Act to accept such voluntary donations of bodies, the 1st

respondent-State herein has not amended the Act or the rules accordingly so far. The said Counsel further submits that in view of the abovesaid

inaction on the part of the 1st respondent, the mandamus prayed for should be given the present case. But, here again, I am unable to accept his

argument. The reason is, the Supreme Court has held in M.B. Majumdar Vs. Union of India, that a writ of mandamus would not be issued to

direct the Government to amend any Act or Rules made thereunder. The relevant observation therein is as follows :- at page 2266

It was rightly not disputed by learned Counsel for the petitioner that the relief specifically claimed in the petition of a direction to amend the

Administrative Tribunals Act, 1985 and the rules framed thereunder to equate the Members of the Tribunal with the Vice-Chairman in the matter

of pay and age of superannuation cannot be granted ............

It is well known that though the Court may suggest an amendment of the law to the Government or give advice regarding the same, it cannot direct

the Government to make any particular law or to make an amendment of the existing law.

All these apart, there is also one other reason for negativing the claim for the mandamus prayed for. As already indicated and as also held in

AIR 1962 SC 1183 (supra), the above referred to legal right must be subsisting on the date of writ petition. In the present case, since the petitioner

is now alive, he cannot claim to have any such subsisting legal right mentioned above. If at all, such a right may accrue only on his death. But, on his

death, it will not accrue to him, since he would be no longer alive then.

Therefore, though I may appreciate the gesture of the petitioner to donate his dead body for the abovesaid purpose. I would be exceeding my

jurisdiction under Art. 226 of the Constitution of India, if I grant the mandamus prayed for. Accordingly the writ petition is dismissed in limine.

Petition dismissed.