Kerala High Court: In an intra court appeal against judgment dated 15-03-2021 allowing a transwoman to participate in the selection process for enrolment in the National Cadet Corps (‘NCC’) at her college and directing the authorities to amend the enrollment criteria prescribed in Section 6 of the NCC Act to include transgenders, the Division Bench of Amit Rawal and CS Sudha, JJ. partly allowed the same allowing the transwoman but set aside the part of the order directing the authorities to amend the provision.
Factual Background
The respondent in the instant matter was a transwoman who was assigned male gender at the time of birth but underwent sex reassignment surgery from male to female at the age of 21 years and was also issued transgender identity certificate by the Social Justice Department on 8-02-2019. They secured admission for B.A. History course in the college under special category of transgender. They applied for enrolment in the National Cadet Corps at the college, however, the same was not considered favourably, stating that the enrolment criteria were limited to male and female students.
The High Court Single Judge permitted the petitioner to participate in the selection process and for enrolment in NCC unit in case she is successful in the selection process. The respondents were also directed to amend the enrollment criteria prescribed under Section 6 of the NCC Act, 1948 for including transgender community, and take appropriate steps in this direction within 6 months.
Court’s Analysis
The Court perused Sections 2(d), 2(k), 4, 5, 6 and 7 of the Transgenders Act surrounding ‘inclusive education’, ‘transgender person’, right of recognition, right to self-perceived gender identity, issuance of certificate of identity, etc. The Court took note of the fact in the instant matter that “she had undergone sex reassignment surgery to change her gender from male to female, as evidenced by Ext.P1 certificate, is not disputed. In Ext.P2 affidavit the petitioner has affirmed and declared that she had been subjected to sex reassignment surgery and that she now belongs to the female gender. Ext.P3 identity card issued by the Social Justice Department has shown the gender of the petitioner as ‘female’.”
The Court acknowledged the lack of provision in the Act to enroll transgenders or persons belonging to the third gender in the NCC. It further highlighted that since the petitioner was given the identity as a female, she was entitled for enrolment in NCC under Section 6(2) of the Act and in light of Supreme Court’s decision in National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
Coming to the mandamus directing authorities to amend the Act, the Court cited catena of cases to hint that it was already held that no Constitutional Court could issue a mandate to a legislature to enact a particular law or a law on a particular subject in a particular manner, and may at best record its opinion/recommendation on necessity of either amending the existing law or bringing a new law.
Therefore, the Court partly allowed the appeal allowing petitioners participation in the selection process for enrolment in NCC unit and set aside the directions to amend the enrollment criteria prescribed in Section 6 of the Act to include transgenders. The Court concluded with the remarks that “We are hopeful and confident that the Central Government would rise to the occasion in the light of the dictum of the Apex Court in National Legal Services Authority (supra) and the provisions of the Transgenders Act and take steps expeditiously to include the third gender also within the scope of Section 6 of the Act.”
[National Cadet Corps v. Hina Haneefa, 2024 SCC OnLine Ker 931, decided on 22-02-2024]
Judgment by: Justice CS Sudha
Advocates who appeared in this case :
For Appellants: Advocate NS Daya Sindhu Shree Hari
For Respondents: Advocate Thomas Abraham, Advocate KJ Glaxon, Advocate Raghul Sudheesh, Advocate J. Lakshmi, Advocate Sanish Sasi Raj, Senior Government Pleader TK Vipindas
