A Bench of Justices Surya Kant and N Kotiswar Singh
Introduction
The case pertains to a challenge against the "Guidelines on Blood Donor Selection and Blood Donor Referral, 2017" issued by the National Blood Transfusion Council (NBTC) and the National AIDS Control Organization (NACO) under the Ministry of Health and Family Welfare. These guidelines prohibit transgender persons, men who have sex with men (MSM), and female sex workers from donating blood, branding them as “high-risk” groups. The petitioners, belonging to the LGBTQ+ community, have alleged that such exclusion is discriminatory, unscientific, and violates their fundamental rights under the Indian Constitution.
- Article 14 – Right to Equality: Prohibits arbitrary classification and ensures equal protection of laws.
- Article 15(1) – Prohibition of discrimination on grounds of sex or any of them.
- Article 21 – Right to Life and Personal Liberty: Includes the right to dignity, bodily autonomy, and privacy.
- Article 19(1)(a) – Freedom of expression and identity.
- Judicial precedents:
- Navtej Singh Johar v. Union of India (2018) – Decriminalization of homosexuality and recognition of LGBTQ+ rights.
- National Legal Services Authority (NALSA) v. Union of India (2014) – Recognition of transgender identity and rights.
Facts of the Case
The NBTC Guidelines of 2017, specifically Clauses 12 and 51, classify certain communities—transgender persons, MSM, and female sex workers—as high-risk groups for HIV/AIDS and other infections. Based on this classification, blanket bans were imposed on members of these groups from donating blood. Three writ petitions were filed in the Supreme Court by Sharif D Rangnekar (author), Thangjam Santa Singh (activist), and Harish Iyer (activist) challenging these guidelines. Petitioners argue that the categorical exclusion violates Articles 14 (equality), 15 (non-discrimination), 19 (freedom), and 21 (right to life and dignity) of the Constitution. The case is being heard by a bench of Justices Surya Kant and N. Kotiswar Singh.
You can also read the Judgement of Independent Thought V. Union of India and Anr. Case.
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Issues
- Whether the exclusion of transgender persons, MSM, and sex workers from donating blood is arbitrary and violative of their fundamental rights under Articles 14, 15, and 21 of the Constitution?
- Whether the NBTC Guidelines, by creating a blanket prohibition based on gender identity and sexual orientation, amount to stigmatization and discrimination?
- Whether the exclusion can be justified on grounds of public health and safety in the absence of individualized risk assessment?
Contentions of the Petitioners
The guidelines unreasonably stereotype entire communities as being high-risk, without any individualized medical screening or scientific backing for such generalization. The blanket ban violates the right to equality, dignity, and life of LGBTQ+ persons and sex workers. It is argued that modern screening technologies have made it possible to detect HIV and other blood-borne diseases, making such blanket exclusions outdated and unnecessary. The guidelines rely on prejudiced and outdated notions from the 1980s when AIDS-related fears were at their peak. Several international jurisdictions, including the United States, United Kingdom, and Canada, have updated their blood donation policies to allow members of the LGBTQ+ community to donate under regulated conditions. The guidelines ignore the reality that heterosexual individuals can also engage in high-risk behavior, yet are not excluded in a blanket manner.
Petitioners propose reasonable restrictions and educational reforms, such as:
- Reframing the medical curriculum to be more inclusive.
- Conducting public awareness campaigns.
- Encouraging individual risk-based assessments rather than identity-based exclusions.
Contentions of the Respondents
The Union, in its affidavit, defended the 2017 guidelines stating that the categorization is based on scientific evidence and public health concerns. It cited that transgender persons, MSM, and female sex workers statistically have a higher prevalence of HIV, Hepatitis B, and C infections, thus justifying their classification as high-risk donors. The NBTC is a scientific and medical body, and its guidelines are based on expert inputs and global standards aimed at ensuring safety of blood recipients. The decision is a matter of public health policy, falling within the domain of the executive, and not suitable for judicial interference unless shown to be manifestly arbitrary. It further asserted that the classification is not identity-based but behavior-based, reflecting epidemiological evidence rather than social discrimination.
Court’s Analysis
Justice Surya Kant expressed concern about the discriminatory nature of the guidelines, asking:
“Are we going to brand all transgenders as risky and thus indirectly stigmatize these communities?”
He stressed that unless concrete medical evidence links transgender identity or sexual orientation inherently to higher risk, blanket bans are unjustified. The Court warned that such guidelines reinforce stigma, prejudice, and societal bias, thereby infringing upon the dignity and rights of the affected communities. The bench suggested that the Union consults with medical experts to revise the guidelines in a way that:
- Preserves medical safety and screening protocols, but
- Removes inherent discriminatory elements targeting specific identities.
The Court made it clear that stereotyping entire communities without individual assessment amounts to unconstitutional discrimination. Justice Kant directed the Additional Solicitor General to hold further consultations with experts and explore less restrictive alternatives.
Conclusion
The matter is currently pending and has not been conclusively decided yet. However, the Supreme Court has shown a progressive and rights-based approach, emphasizing the need to balance public health concerns with constitutional guarantees of equality, dignity, and non-discrimination.
The bench has asked the government to consult experts and file a response proposing a way forward that both:
- Ensures safe blood donation, and
- Removes unconstitutional and stigmatizing provisions from the guidelines.
