Findings Dissolve Classifications In NCC Based On Gender: Intervenor Appeals Against Kerala High Court NCC Ruling Allowing Enrolment To Transpersons

A Division Bench of Justices CT Ravikumar and Murali Purushothaman took up for hearing an appeal moved by an intervenor in the original proceedings, one Sreerag S.

In his appeal, the appellant primarily assails the Single Judge's direction that Hina Haneefa be allowed to apply for enrolment in the girls' wing of the NCC.

Sreerag, through his counsel Advocate K Arjun Venugopal asserts in his appeal that Haneefa should be admitted only under the category of "transgender" or "third gender." To allow the entry of the petitioner to the corps on par with "biological girls" would be grossly unfair, the appellant contended.

In Court today, the Division Bench questioned the appellant's interest in the matter and pointed out that the NCC was yet to file an appeal in the case.

At this, the counsel for NCC, Central Government Counsel NS Daya Sindhu Shree Hari informed the Court that the NCC would also be filing an appeal.

Taking note of this submission, the Court proceeded to defer hearing the case, declaring instead that it would take the intervenor's appeal along with the NCC's to prevent any prejudice being caused to the NCC's prospective appeal.

The NCC's counsel submitted in Court that the appeal against the Single Judge judgement would be filed during the vacation.

The Single Judge in her judgment had 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..".

"A transgender person is not recognised by law as belonging to his or her self-perceived gender"

In his appeal, Sreerag has contended, "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." Additionally, the State Policy for Transgenders in Kerala, 2015 also treats transgender persons as the third gender, rather than as belonging to the either of the gender binaries.

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".

If the right to self-perceived gender identity is considered as a legal recognition of a person being self-perceived gender, persons can be treated as belonging to a gender of their choice even without medical intervention, the appellant states, referring to Section 6 of the Transgender Persons (Protection of Rights) Act, 2019.

"If the interpretation of the learned Single Judge is adopted, such a biological man will have to be treated as a female based on his self-perceived identity. Such a biological man will have a right to enter places where only women are permitted...Such a biological man will also then be entitled to all protetion and benefits that the law confers on biological women", the appeal reads. 

In the context of the NCC Act, the Sreerag's appeal posits that the NCC Act contemplates gender-specific modes of training and education. Without the basic structure of the legislation being questioned, and no case that enrolment into the NCC should be made gender neutral, the judgment has "the effect of dissolving the classifications in the NCC based on gender", the appeal petition states.

Any amendment to the NCC enrolment would have to done through an amendment by Parliament, it is stated.

"The said direction in the impugned judgment amounts to directing the legislature to legislate. The said direction is against the basic structure of the Constitution of India viz. the separation of powers. Moreover, the direction may be unimplementable and futile since none of the Respondents can ensure that the Parliament will amend the stature as directed within the time frame fixed in the impugned Judgment", the appeal further lays out.

Therefore attempt to amend the NCC Act was futile, since none of the respondents were competent to amend the legislation, Sreerag's appeal contebd.

Sreerag's appeal also charges the High Court with having issued contrary directions in ordering the enrolment of the petitioner within a month's time on the one hand, while directing the amendment of NCC enrolment criteria within 6 months on the other hand.

It is not possible to enrol Haneefa to the corps without the enrolment criteria being amended, the appellant submits.

A major prong of the appeal plea revolves around the ramifications the Single Judge's ruling could have on other laws.

It is stated that the NCC judgment would effectively affect laws that contain a classification based on gender such as

• The Indian penal code which contains offences that can only be committed by a man against a woman.
• Laws meant for the special protection of women, which would become meaningless since, as per the appellant's case, the term "woman" has been modified by the impugned judgment through an interpretive process.
• Article 19(1)(g) of the constitution, in terms of the right of private businesses like beauty parlours, gyms, spas, hospital wards etc. which exclusively serve female customers. They may be shut down citing discrimination, which would affect Article 19 (1) (g), the appellant argues.
• It would affect religious places that impose gender based restrictions or segregation. Such religious customs and practices will effectively come to an end.

On these among other grounds, Sreerag's appeal urges the High Court to strike down the Single Judge's ruling.