Kerala High Court: In a historic judgment Anu Sivaraman, J., had broken the norm by allowing trans women to appear for enrolment in the National Cadet Corps female wing. The Bench remarked,
“Petitioner who has opted for the female gender and has undergone sex reassignment surgeries for aiding her self perception as a member of the said gender would definitely be entitled to enrolment in the NCC unit reckoning her as a transgender and further as a member of her self perceived gender, that is, the female gender.”
In the instant case, the petitioner, a trans women had approached the Court after being aggrieved by denial to be considered for enrolment in NCC by the respondents. The petitioner had urged the Court to declare Section 6 of the NCC Act, 1948 as illegal and ultra vires of Articles 14, 15 and 21 of the Constitution to the extent it excludes transgender community from enrolment with the NCC and to direct the respondent to amend the enrolment criteria to include Transgender community as well. Also, to direct the respondents to take necessary steps for enrolment of the petitioner in the NCC.
The petitioner was assigned male gender at the time of her birth and later on, at the age of 21, a sex re-assignment surgery was performed. It was stated that further surgery was performed on 27-05-2019 and the petitioner’s name had also been changed as Hina Haneefa. A transgender identity card was also issued to the petitioner showing her gender as female. The grievance of the petitioner was that she was declined admission to the NCC unit by an Associate NCC officer on the ground that there was no provision for enrolment of transgender students.
Reliance was placed by the petitioner on the decision of Supreme Court in National Legal Services Authority v. Union of India, (2014) 5 SCC 438, as also on the provisions of the Transgender Persons (Protection of Rights) Act, 2019 to contend that the petitioner was entitled and eligible for enrolment on the basis of the certificates produced by her. The petitioner submitted that, after the authoritative pronouncement by the Supreme Court with regard to rights of transgender persons to a life with human dignity, and that,
“The continued actions on the part of the respondents in perpetuating discrimination against persons like the petitioner only for the reason that she was born with the characteristic of a gender which did not match her self-perceived gender identity amounts to violation of the petitioner’s valuable rights guaranteed under Article 14, 15, 19 and 21 of the Constitution of India.”
Stand Taken by the State
The claims of the petitioner were vehemently opposed by respondents, it had been argued that the curriculum and training module in Armed Forces is gender-specific and also, in organizations like Armed Forces or NCC close physical contact, confined stay under field conditions, sharing of basic facilities like accommodation, toilets, bathing, sleeping facilities etc. are routine rather than exception, hence, it was argued that there is a need for gender-specific regulations.
“…hypothetically a biological male, who is either Transvestite (Cross-Dresser), Bigender, Demigender or Transsexual not undergone any medical procedure but assumes the gender identity of a female in spite of his sexual orientation as bisexual or heterosexual, is eligible to get enrolled in to a girls NCC unit. …Presence of such a person in common bathroom, sleeping area and in close contact physical training activities etc. will be a violation of privacy and dignity of a girl cadet.”
Section 6 of the NCC Act, 1948 read as:
- Enrolment.-(1) Any student of the male sex of any university may offer himself for enrolment as a cadet in the Senior Division, and any student of the male sex of any school may offer himself for enrolment as a cadet in the Junior Division if he is of the prescribed age or over.
(2) Any student of the female sex of any university or school may offer herself for enrolment as a cadet in the Girls Division.”
Hence, the stand of the respondent was that there is requirement for more detailed categorization of transgender based on their biological features and sexual orientation to assign them which is the prerogative of the Central Government. The respondent also contended that primary aim of NCC is to groom the cadets for a future with the Army Forces whereas there is no provision existing for entry of transgender (Female/Male) in the Indian Armed Forces. It had been further submitted that,
“NCC Act recognizes only persons belonging to the male or female gender and since the petitioner is admittedly a transgender, she cannot be enrolled in the NCC”.
Analysis and Decision
Considering the above mentioned; the Bench opined that the right of a human being to choose sex or gender identity is integral to his or her personality and is one of the most basic aspects of self-determination, dignity and freedom. Criticizing the stand taken by the respondent the Bench remarked,
“We cannot take recourse to the outdated provisions of a 1948 enactment to deal with the realities of life in the year 2021. The situation has to be viewed in the light of the 2019 Act which recognises the right of transgender persons to a life with dignity and prohibits discrimination against them.”
Regarding the argument that the NCC Act did not recognize the third gender or that detailed guidelines were required to be drawn up for the integration of persons of the third gender into the Armed Forces or the National Cadet Corps, the Court stated the same could not be a justification for denying admission to the petitioner to the NCC unit on the basis of the Identity Card obtained by her.
“The petitioner who had opted for the female gender and had undergone sex reassignment surgeries for aiding her self perception as a member of the said gender would definitely be entitled to enrolment in the NCC unit reckoning her as a transgender and further as a member of her self perceived gender, that is, the female gender.”
Hence, it had been held that the petitioner was entitled to enrolment in the NCC senior girls’ division and the rejection of the request of the petitioner for such enrolment was completely unsustainable. Consequently, the petition was disposed of with the directions to the respondents to do the needful shall with regard to the application of the petitioner within a period of one month. Further, the state was directed to amend the enrolment criteria prescribed under Section 6 of the NCC Act, 1948 to include the transgender community and to provide guidelines for enrolling transgender persons also in the NCC.[Hina Haneefa v. State of Kerala, WP(C). No. 23404 of 2020, decided on 15-03-2021]
Kamini Sharma, Editorial Assistant reported this brief.
Appearance before the Court by:
For the Petitioner: Adv. C.R. Sudheesh, Adv. Raghul Sudheesh, Adv. J. Lakshmi, Adv. K. J. Glaxon and Adv. Sanish Sasi Raj
For the Respondents: SC. Thomas Abraham, Adv. N. S. Daya Sindhu Shree Hari and Adv. K. Arjun Venugopal
