Kerala High Court DB Refuses To Stay Judgment Which Allowed NCC Enrolment Of Transwoman

Refusing to stay the judgment, a vacation bench of Justices PB Suresh Kumar and K Babu adjourned the appeals after vacation.

When the two cases came up for hearing, the Court expressed that the case was an important matter and that it was not keen on rushing with hearing the case.

The Counsel for the NCC, Central Government Counsel Daya Sindhu Shree Hari, pressed for a stay of judgment, submitting that possible contempt could ensue if the judgment's operation continued

Even if a contempt petition is filed, it can be considered only after the vacation, the Court remarked in response to this submission, stating that no action was likely to be taken upon a contempt petition, if so filed.

The Bench additionally pointed out that the Single Judge who pronounced judgment in the case was presently not sitting and proceeded to adjourn the matter till after the vacation.

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 is presently no provision for entry of Transgender (Female/Male) into the services.

The private party, one Sreerag S, was an intervenor in the original proceedings. His appeal claims, "a transgender person is not recognised by law as belonging to his or her self-perceived gender". Referring the NALSA ruling, he states that Hijras, Eunuchs, apart from binary gender, are treated as 'third gender' for the purpose of safeguarding their rights under Part III of our Constitution and laws made by the Parliament and the State Legislature."

He goes on to state,

"The learned Single Judge failed to appreciate that even if a transwoman is treated as belonging to the third gender and permitted to participating in the NCC, the purpose of the NCC for training/education will be served. A trans-girl has no right to insist that she wants to participate in the NCC as a girl along with biological girls and not as a trans girl. Hence there was no necessity to declare the 1st Respondent is entitled to enrolment into the Girls' Wing of the NCC"

The appeal petition goes on to argue that any recognition of transpersons by their self-perceived gender identities will be "grossly unfair to biological women", will lead to "chaos in society".

CASE NAME: Sreerag S. v. Hina Haneefa, NCC v. Hina Haneefa

COUNSEL: Central Government Counsel NS Daya Sindhu Shree Hari represented the NCC, Advocate K Arjun Venugopal for the appellant/intervenor. Advocates CR Sudheesh, Raghul Sudheesh, KJ Glaxon, J Lakshmi, Sanish Sasi Raj and Amal Jees Alex for Hina Haneefa.