No Provision To Allow Transgenders Into National Cadet Corps (NCC) & Armed Forces: Central Govt. Tells Kerala High Court

This submission has been made by Lieutenant Colonel Prem Chand Jha, Officer Commanding, Kerala Battalion NCC, Thiruvananthapuramway by way of filing an affidavit before the Kerala High Court.

This affidavit has been filed in a petition moved by a trans-woman (Hina Hanifa), challenging Section 6 of the National Cadet Corps Act, 1948 as illegal and ultra vires of Articles 14, 15 and 21 of the Constitution to the extent that it excludes the transgender community from enrolment with the National Cadet Corps.

The Petition had been filed through Advocates C R Sudheesh, Raghul Sudheesh, Sanish Sasi Raj, J. Lakshmi, K. J. Glaxon.

Background

Petitioner Hina Hanifa (earlier Muhammed Ashif Ali) was an NCC Cadet with Junior Division (Boys Division) during the period 2012-2013.

Thereafter, she underwent Sex-Reassignment surgery from male to female on 22 Oct 2018 and has now been issued with Transgender Identity Card by Social Justice Department of Government of Kerala.

Also, she took admission for BA History course in academic year 2020-21with University College Thiruvananthapuram under Transgender category.

The Petitioner, vide her application dated 16 Oct 2020 addressed to Associated NCC Officer of University College applied to join Senior Wing (Girls Wing) of NCC.

The Associated NCC Officer of University College forwarded her application to Commanding Officer, (Kerala) Battalion NCC seeking for clarification on enrollment of transgender in to NCC.

In this backdrop, the Affidavit states that the NCC authorities are empowered to enroll only those students as NCC cadets who meet the eligibility criteria as stipulated in Section 6 of the NCC Act, 1948 i.e. male & Female gender only.

The Centre has further argued since the Petitioner joined the college identifying and claiming to be a transgender and so now, the Petitioner cannot turn around and claim that the Petitioner is to be enrolled as a cadet in the Girls Division enrolment for which is open only to female gender.

It has been contended in the Affidavit that a student can be enrolled in "Girls Division" only if the student is admitted under the Female category in the College.

[NOTE: As per Section 6 (2), any student of the female sex of any University or school may offer herself for enrolment as a cadet in the Girls Division.

Thus, for getting the benefit of the Section 6(2) of the NCC Act 1948, the candidate has to be enrolled under 'female' category by the College.]

In this context, the Affidavit states,

"The Petitioner exhausted right to self-perceived gender identity by choosing the same as 'Female' and has taken admission under the Transgender category (Female). Hence, she now falls under the third gender category i.e. 'transgender (Female)' and not the 'female' sex category, now being claimed by her."

"It is the prerogative of the Central government to constitute a new division for third gender. Before constituting a new division for the third gender, the central government and authorities will have to conduct a major exercise in terms of reviewing the infrastructure facilities, modules," the affidavit submitted by the Central Government states.

The affidavit further read,

"Any induction of a candidate not from male or female gender without due deliberations by the authorities, will have far reaching ramifications. The issue of raising a new division for the third gender being a policy decision is required to be resolved through different hierarchical and inter departmental consultations."

In other words, the affidavit filed by the Centre argues that in the instant case, the petitioner has chosen to be called as a transgender (female) which falls in the third gender category as a transwoman, whereas enrolment in NCC as a cadet is open only to male & female gender.

Importantly, it has also been stated in the Affidavit that there is no provision existing for entry of transgender (Female/Male) in the Indian Armed Forces.

Lastly, the affidavit states that the petitioner is not eligible for any reliefs as prayed for the Writ Petition.

It is important to note that in National Legal Services Authority v. Union of India (AIR 2014 SC 1863), the Apex Court had declared Transgenders as the 'third gender', and had affirmed that the fundamental rights granted under the Constitution of India will be equally applicable to them, and gave them the right to self-identification of their gender as male, female or third gender.