The Kerala High Court on Monday allowed a petition moved by transwoman Hina Haneefa seeking admission into the National Cadet Corps (NCC).
A Single-Judge Bench of Justice Anu Sivaraman passed this order while hearing Haneefa’s petition filed in October 2020. She had filed the petition challenging Section 6 of the National Cadet Corps Act 1948.
The petitioner, a student of University College, Thiruvananthapuram, moved court aggrieved at not being allowed to apply for enrolment with the NCC on account of her gender. Her representations in this regard were not acted upon, her petition said.
The petition termed the exclusion arbitrary and called upon the intervention of the Court to direct the NCC to suitably amend their enrolment criteria to allow transgender persons.
Additionally, her petition averred that the inclusion of sexual minorities such as transgender persons is necessary to address the rampant marginalization and discrimination faced by them.
“The petitioner shall be allowed to apply for enrolment into NCC in the senior girls division, as per her self-perceived gender identity”, the Court ordered.
The Court stated that the provisions of the NCC Act cannot preclude the operations of the provisions of Transgender Persons (Protection of Rights) Act, 2019 Act and the situation has to be viewed in the light of 2019 Act which recognizes the right of transgender persons to a life with dignity and prohibits discrimination against them.
“The enactment was one intended to give effect to the rights guaranteed to such persons u/Arts 14, 15, 19, and 21 of the Constitution, has to be borne in mind when considering cases of this nature. In view of the specific provisions of the 2019 Act, a transgender person has the right to be recognised not only as a transgender but also a right to self-perceived gender identity,” the Court said.
“I am of the opinion the petition who has opted for female gender and has undergone two SRS surgeries for aiding her self-perception as a member of the said gender will definitely be entitled to enrolment in the NCC Unit reckoning her as a transgender and further as a member of her self -perceived gender, ie female gender.
The fact that NCC Act does not recognize the third gender or that detailed guidelines are required to be drawn up for integration of persons of the third gender into the armed forces or the NCC, cannot, according to me, be a justification to deny entry to the petitioner into NCC.
I’m 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 bench observed.
The bench directed the NCC to amend the enrolment criteria prescribed u/s 6 of the NCC Act to include transgender persons and to provide guidelines for enrolling transgender persons also in the NCC. The Court has directed respondents to make such changes without delay within six months.
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