DATE OF JUDGMENT: 5th March, 2021.
JUDGES: S.A. Bobde, A.S. Bopanna, V. Ramasubramanian.
PARTIES
Thangjam Santa Singh (Appellant)
Union of India (Respondent)
SUMMARY: The following case deals with the provisions of the blood donor guidelines of the Union Health Ministry which is said to have prohibited transgenders and gay men from donating blood and receiving donations.
OVERVIEW
- The present case deals with the provisions of Clauses 12 and 51 of the general criteria under the Guidelines on Blood Donor Selection and Blood Donor Referral, 2017, (Guidelines) which permanently defers or prohibits transgender persons, men having sex with men, and female sex workers from donating blood.
- The guidelines consider these people to be in the high-risk category for HIV/AIDS infection.
- A plea was filed in the Supreme Court challenging these provisions. The plea claims that such exclusion on the basis of gender identity and sexual orientation is "completely arbitrary, unreasonable, and discriminatory and also unscientific."
- The plea goes on to state that during the COVID-19 pandemic, many members of the transgender community who needed blood were unable to get it from their trans relatives or loved ones, as a result of the Guidelines.
- The plea, therefore, contends that the provisions of the Guidelines are violative of the provisions of Articles 14, 15 and 21 of the Constitution.
- The matter is now before the Supreme Court.
ISSUES
The following are the issues analyzed by the Supreme Court:
- Whether the guidelines are violative of the provisions of Articles 14, 15 and 21 of the Constitution.
- Whether the guidelines warrant an examination by the court.
IMPORTANT PROVISIONS
- Art. 14 of the Constitution: Equality before law.
- Art. 15 of the Constitution: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
- Art. 21 of the Constitution: Protection of life and personal liberty.
- Clause 12 of the general criteria under the Guidelines on Blood Donor Selection and Blood Donor Referral, 2017: Consideration of transgenders, men having sex with men, female sex workers as “at risk” person for HIV, Hepatitis B or C infection.
- Clause 51 of the general criteria under the Guidelines on Blood Donor Selection and Blood Donor Referral, 2017: Permanent deferment of “at risk” individuals (transgenders, men having sex with men, female sex workers).
ANALYSIS OF THE JUDGMENT
1. The appellants brought a plea before the court citing that the guidelines are violative of the provisions of Articles 14, 15 and 21 of the Constitution. By denying transgenders and gay men of the ability to donate blood and receive blood, the guidelines are a clear violation of the aforementioned provisions of the Constitution.
2. The plea goes on to state that during the COVID-19 pandemic, many members of the transgender community who needed blood were unable to get it from their trans relatives or loved ones, as a result of the guidelines. It was further urged by the appellants that blood donor guidelines need to be based on actual and not perceived risk, and should not be based on identities.
3. The appellants argue that the present impugned guidelines are stigmatizing as they are not based on how HIV transmission actually works, nor are they based on the actual risks involved in specific activities but are based only on identities of donors such as, whether they are transgender, gay or bisexual men or female sex workers.
4. The appellants placed reliance to their arguments in the case of Navtej Singh Johar &Ors. v. Union of India1, which decriminalized the provisions of Sec. 377 of the Indian Penal Code. The Court held that Section 377 insofar as it criminalizes consensual sexual acts between adult human beings, is unconstitutional and liable to be struck down.
5. The appellants also relied on the judgment given in the case of NALSA v. Union of India2, which stated that transgender persons are to be recognized as a third gender and are entitled to the same Constitutional and legal rights as any other citizen.
6. The court in the aforementioned case held that Articles 14, 15, 16, 19 and 21 do not exclude transgender persons from its ambit and take into account rights of “hijras” as well and hence, discrimination against them on the basis of their gender would be a violation of Constitutional mandate.
7. The counsel for the appellants also argued that given the COVID-19 crisis, where blood transfusions are needed more than ever for emergency and elective surgeries and treatments, it is more critical than ever for members of the transgender community to rely on the generosity of their family and community members to meet the demands for getting life-saving blood to those affected by the pandemic.
8. The court has sought a response to the petition from the Central Government.
CONCLUSION
The crux of the present case is the provisions of the Guidelines on Blood Donor Selection and Blood Donor Referral, 2017 and whether or not they are discriminatory to the transgenders, gay men and female sex workers.
The court has issued a notice to the Central Government seeking a response to the petition filed by the appellants. However, on analysis of the aforementioned guidelines, it can be determined that these provisions are clearly a violation of the provisions of articles 14, 15 and 21 of the Constitution. Art. 14 provides for the right to equality before law. Therefore, the contention of the appellants that the guidelines are violative of Art. 14 seem to be valid.
The provisions of Art. 15 provide of a prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth. The contention of the appellants with regards to this provision is that the guidelines are violative as they are discriminative towards the transgender community, gay men and sex workers by terming them as “at risk” people who are ineligible to donate blood. Therefore, on analysis, this contention also seems to be a valid one.
And finally, the provisions of Art. 21 of the Constitution provide for a right to life and personal liberty. In the present case, the contention of the appellants is that during the COVID-19 pandemic, many members of the transgender community who needed blood were unable to get it from their trans relatives or loved ones, as a result of the guidelines, thereby denying them the aforementioned right.
Based on the above contentions, the court has issued a notice to the Central Government seeking a response. The said response is awaited.
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