Govt & Establishments Obliged To Provide Full & Effective Participation Of Transgender Persons & Their Inclusion In Society : Kerala High Court In NCC Case

The pronouncement in a petition filed by transwoman Hina Haneefa, who was denied permission to apply for enrolment in her University's unit of the NCC.

In the full copy of the judgment which was uploaded today, Justice Anu Sivaraman observed:

"I am of the opinion that the 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 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..", Justice Sivaraman had said.

Justice Anu Sivaraman's detailed judgment has now been released, which details how the Court arrived at the pathbreaking decision.

The operation of provisions of the NCC Act, 1948 vis-à-vis the mandates of the Transgender (Protection of Rights) Act, 2019

One of the issues raised when Haneefa's petition was being heard was with respect to Section 6 of the NCC Act, 1948.

Section 5 and 6 of the Act effectively allow only members of the male sex and the female sex to enrol as cadets in the various divisions of the NCC.

Sections 5 and 6 provisions read as below:

5. Division of Corps into Divisions.- There shall be three Divisions of
the Corps, namely :-
(i) the Senior Division, recruitment to which shall be from amongst the students of the male sex of any university;
(ii) the Junior Division, recruitment to which shall be from amongst the students of the male sex of any school; and
(iii) the Girls' Division, recruitment to which shall be from amongst the
students of the female sex of any university or school.

6. 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: Provided that in the latter case she is of the prescribed age or over.

Referring the history of the NCC and the enactment of the 1948 legislation, Justice Sivaraman pointed out that the legislation originally allowed enrolment only to members of the male gender. After amendments, a senior division for women cadets was created as well.

Stressing the need to account for the march of the times, the declaration by the Apex Court and statutory enactments recognising the rights of transgender persons, Justice Sivaraman states,

"We cannot take recourse to the outdated provisions of a 1948 enactment to deal with the realities of life in the year 2021."

Interestingly, this remark echoes one made by Justice Devan Ramachandran, the Judge who was initially hearing Haneefa's case.

While hearing the Central Government's Counsel raise objections on behalf of the NCC, he remarked "the world has progressed, you cannot remain in the 19th Century!".

The Court additionally holds that the case was to be viewed in the light of the Transgender (Protection of Rights) Act, 2019.

Therefore, Justice Sivaraman asserts that when deciding a cases such as the one at hand, one had to consider the objectives of the 2019 legislation.

"That 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 Judgment states.

Referring the legislation, the Court emphasized that appropriate governments and establishments are "obliged to provide full and effective participation of transgender persons and their inclusion in society in a nonstigmatizing and non-discriminatory manner."

How the Court drew from the NALSA ruling

Justice Sivaraman in her judgment references the Supreme Court's ruling in NALSA v. Union of India wherein the Apex Court declared that transgender persons had the right to be treated as a third gender to safeguard their rights.

Moreover, rights of persons to basic human rights including right to life with human dignity and right to privacy and freedom of expression was also upheld by the Court.

Apart from this, the Court had also asserted that a person who was a transgender had the right to decide their self identified gender and that the Central Government was directed to grant legal recognition to such identity, whether the identity was male, female, or transgender. The right of a human being to choose his 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, it had been held.

In light of this, the Kerala High Court reasoned

"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."

Directing the respondents to amend the enrolment criteria to include members of the transgender community and provide guidelines for the same, the petition was disposed.