The Kerala High Court had observed that individual belonging to transgender community should be included in National Cadet Corps (NCC) by Amending Section 6 of NCC Act, 1948. Transgender or Third Gender had the rights pursuant to rights available to Male or Female.
"Transgender would definitely be entitled to enrollment in the NCC unit reckoning her as a transgender and further as a member of her self perceived gender, that is, the female gender. The fact that the provisions of the NCC Act do not recognize the third gender or that detailed guidelines are required to be drawn up for the integration of persons of the third gender into the Armed Forces or the National Cadet Corps cannot, according to me, be a justification for denying admission to the petitioner to the NCC unit on the basis of the Identity Card obtained by her."
The above observation was made by the Single-judge bench of Kerala High Court, comprising of the Justice Anu Sivaraman while dealing with the Writ Petition which was related to the issue of Transgender who were denied to got admission in NCC on the basis of their sex.
Contentions of the Petitioner
The Petitioner named Hina Haneefi was a college student who was denied to get admission in NCC because of the Gender. She raised few contentions which were as follows:
(i) That Section 6 of NCC Act 1948 should be declared illegeal and ultra vires of the Article 14, 15 and 21 of the Indian Constitution
(ii) That Transgender Community should be included in Section 6 through amendment.
(iii) That to issue guidelines and policies for the welfare for Transgender community.
Written Statement of the Respondents
The Counsel on the behalf of the Respondents submitted that NCC was raised with an aim to provide a suitable environment to train the youth to take up a career in Armed Forces and that it follows a curriculum and training module following the Armed Forces which is sometimes gender specific due to difference in physical, biological and psychological aspects.
They further contented that the enrolment of the petitioner to the NCC girls unit should not be considered, since it would have wider adverse consequence all over the nation.
Court Reasoning & Judgment
The Court laid emphasis on the case of National Legal Services Authority v. Union of India and others which was passed by Hon’ble Supreme Court that:
“the issue of recognition of self-perceived gender identity and had specifically held that the transgender persons are also entitled to basic human rights including right to life with human dignity and right to privacy and freedom of expression. Apart from declaring that transgender persons have a right to be treated as third gender for the purpose of safeguarding their rights, the Apex Court had also declared that transgender persons have a right to decide their self identified gender and the Central Government was specifically directed to grant legal recognition to their gender identity, be it male, female or transgender.
After considering the provisions of the International Conventions and the extant case law on the point, the Apex Court held that the right of a person to a self-perceived gender identity is a part of his fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India and that a person cannot be discriminated against on the basis of sexual orientations or gender identity different from that assigned at the time of the birth.”
The Court was of the opinion that NCC Act was of 1948 and we are living on 21 st century which is a developing nation. We should move towards a progressive society.
“We cannot take recourse to the outdated provisions of a 1948 enactment to deal with the realities of life in the year 2021.”
The amendment through which girls were also added in senior group was a remarkable step in the egalitarian society. So adding Transgender community to in Section 6 of the NCC Act, 1948 will break the stereotype and safeguard their rights and the enactment was one intended to give effect to the rights guaranteed to such persons under Article 14, 15, 19 and 21 of the Constitution of India is to be borne into mind while considering cases of this nature.
The Court held that:
“I am of the opinion that the petitioner is entitled to enrollment in the NCC senior girls' division and the rejection of the request of the petitioner for such enrollment is completely unsustainable.”
The Bench allowed the Writ petition and directed to the respondents to amend the enrollment criteria prescribed under Section 6 of the NCC Act, 1948 to include transgender community and to provide guidelines for enrolling transgender persons also in the NCC within six months from the date of receipt of a copy of this judgment.
Case Details
Case: WP(C).No.23404 OF 2020(A)
Petitioner: HINA HANEEFA
Respondent: STATE OF KERALA & ORS
Quorum: JUSTICE ANU SIVARAMAN
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