NCC Files Appeals To Kerala High Court DB Against Single Judge Ruling Allowing Enrolment For Trans Persons

Today, when a vacation bench of Justices PB Suresh Kumar and K Babu took up the case moved by an intervenor, Counsel for the NCC, Central Government Counsel Daya Sindhu Shree Hari NS informed the Court that the NCC would be preferring an appeal today. 

Last week, when the Bench of CT Ravikumar and Murali Purshothaman took up an appeal filed by one of the intervenors in the case, the NCC's Counsel submitted that it intended to file an appeal in the matter during the vacation, which began on April 10, 2021. Following this submission, the Court ordered that the intervenor's case be listed with the NCC's appeal, as and when the same was filed.

In its appeal, the NCC contends that the Single Judge allowed Haneefa enrolment in the NCC's Senior Division without considering the ramifications. The Judge ignored the serious psychological and physiological implications caused on girl cadets as also the practical concerns expressed during the proceedings, the NCC's appeal memorandum reads. 

It is also submitted that the NCC was primarily aimed at grooming cadets for a future with the Armed Forces whereas there was no provision for entry of Transgender (Female/Male) into the services.

"In case she is permitted to join the NCC, she would entail herself to appear for Service Selection Board through NCC 'C' certificate scheme whereas at present, she remains ineligible to join the Armed Forces", the Appeal reads.

Stating that the NCC Act presently allows enrolment only to males and females, it is argued that no mandamus "can be issued to amend, add or delete any words in a statute since the same comes under the prerogative of legislative (legislature)". Further, the appellant posits that the NCC is governed by the NCC Act and it is not empowered to amend any Acts passed by Parliament.

Taking the stance that the Single Judge's reliance on the Supreme Court's ruling in NALSA v. Union of India is misplaced, the NCC in its appeal avers,

"The Learned Single Judge, under the judgment has sought to extend the scope of the Supreme Court judgment rendered in 'Nalse (NALSA) Vs. Union of India' without referring to the distinctions that the issue of propriety of permitting a transgender to take part in a group activity and community life exclusively meant for girls, solely based on the self-perceived identity, was not an issue either considered nor decided under the said judgment."

The NCC additionally states that the Judge "failed to consider the extra ordinary and peculiar practical issues that would be caused in the present case on such directions.." and says girl cadets would be faced with "community life with a transgender with totally different physical and psychological features from a female."

Pointing out that its activities are patterned on the Indian Armed Forces and not like educational institutions which are 'non-contact', the NCC asserts that the Single Judge's judgment was based on an erroneous presumption that NCC comes under the category of 'educational institutions and services thereto' and mandating compliance under the Transgender (Protections of Rights) Act, 2019.

The NCC does not come under the definition of 'educational institutions or services' thereof as contemplated in the Sections, it is contended.

"Due to nature of contact between peers during camps in NCC and Armed Forces needing cohabitation, which is more than normal conditions of 'education and service', the definition/scope needs to be revisited and re-defined before its implementation", is the stance taken by the NCC.

The NCC, in its appeal memorandum, reiterates averments made in its affidavit filed during the hearing of the first case stressing the gender specific nature of its training modules. "Many a times gender specific due to difference in physical, biological and psychological aspects of various genders as well as exigencies of service", the appeal states.

The NCC also lays out that the camping/long stays of its cadets require the NCC to follow gender specific enrolment to avoid 'untoward incident'.

Pertinently, the Single Judge in her judgment, had noted,

"I am of the opinion, the petitioner is entitled to enrol in the NCC Senior Girls Division. The denial of enrolment is unsustainable. The petitioner will be entitled to participate in the selection process on the basis of her application. If she is successful, the petitioner will be enrolled in NCC Unit"."

The NCC was additionally directed to amend the enrolment criteria prescribed under Section 6 of the NCC Act to include transgender persons and to provide guidelines for enrolling transgender persons with the NCC.

This process was directed to be completed within six months, while Haneefa's application for enrolment was ordered to be processed within one month from the judgment.

The two appeals are expected to be taken up on Friday, April 16, 2021.