The Kerala High Court on Friday refused to hear two appeals filed by the Central Government along with the National Cadet Corps and a private party against the Verdict of a single judge allowing transwoman Hina Haneefa to enrol with the National Cadet Corps in accordance with her self-perceived gender identity.
A vacation bench of Justices P.B. Suresh Kumar and K. Babu adjourned the appeals after vacation while refusing to stay the Judgement.
The Court expressed that the case was an important matter and that it was not keen on rushing with hearing the case.
Daya Sindhu Shree Hari, Counsel for the Central Government and Counsel for the NCC, 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 Court 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.
The Petition stated that 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 recognized by law as belonging to his or her self-perceived gender”. Referring to 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”.
Earlier, the Kerala High Court allowed a Petition moved by transwoman Hina Haneefa seeking her admission into the National Cadet Corps (NCC).
The bench of Justice Anu Sivaraman delivered the judgment based on a plea challenging section 6 of the National Cadet Corps Act 1948.
“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 recognises 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 recognized not only as a transgender but also a right to self-perceived gender identity”,
-the Court said.
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.