Hopeful & Confident Central Govt Will Amend National Cadet Corps Act To Include Third Gender: Kerala High Court

Section 6 of The National Cadet Crops Act, 1948 only permits enrollment in the male and female category and does not extend to the transgender community.

The Division Bench comprising Justice Amit Rawal and Justice C S Sudha stated that they are hopeful and confident that the Central Government would amend Section 6 of the NCC Act to include transgender community since the Constitutional Court cannot direct the legislature to enact a law. 

“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.”

Background

A writ petition was filed on behalf of a transwoman who secured admission to a college under the Kerala University under the special category of transgender. The petitioner was assigned male gender at birth and underwent a sex reassignment surgery from male to female. Pursuant to surgery, the petitioner was issued a transgender identity card by the Social Justice Department. The petitioner applied for enrollment in the National Cadet Corp (NCC) of college which was not favourably considered stating that there was no provision for enrolment of transgender students under the NCC Act.

The petitioner alleged a violation of the fundamental rights and sought a writ of mandamus declaring Section 6 of the Act as illegal and ultra vires of Articles 14, 15 and 21 of the Constitution of India to the extent it excluded transgender community from enrolment in the NCC. The petitioner also sought a writ of mandamus for amending the enrollment criteria in Section 6 of the NCC Act to include transgender community in the NCC.

The single judge allowed the writ petition following the directions of the Apex Court judgment in National Legal Services Authority v. Union of India and others (2014) and the Transgender Persons (Protection of Rights) Act, 2019. The petitioner was thus permitted to participate in the selection process to enrol in the NCC. The Single judge also directed the respondents to amend the enrollment criteria in the NCC Act to include the transgender community in the NCC.

Challenging the judgment in the writ petition, the NCC preferred the writ appeal stating that there was no provision for enrolment of transgender students as per the NCC Act. Their specific submission was that Section 6 of the NCC Act limits enrollment only to male and female students and does not extend to transgender students. They claim that the petitioner who enrolled in the college in the transgender category now cannot enrol in NCC or armed forces showing female category.

Further, it was argued that this was a policy decision and it was within the prerogative of the Central government to amend the NCC Act to include a new category and until then the petitioner being a transgender cannot be enrolled in the NCC.

Observations

Analysing the provisions of the Transgender Persons (Protection of Rights) Act, the Court stated that the transgenders have the right to self-perceived gender identity.

The Court however stated that there was no provision in the NCC Act for the enrollment of transgender community. Referring to the identity card issued to the petitioner, the Court stated that the gender of the petitioner was shown as female. Thus, the Court stated that the petitioner was entitled to enrol in the NCC under the female category.

“It is true that presently there is no provision in the Act to enrol transgenders or persons belonging to the third gender in the NCC. Section 6(2) of the Act says that any student of the female sex of any University or School may offer herself for enrolment as a cadet in the girls division. In the light of Ext.P3, when the petitioner has been given the identity of a female, she is certainly entitled to be enrolled in the NCC under Section 6(2) of the Act; in the light of the aforesaid provisions of the Transgenders Act and also in the light of the dictum laid down by the Apex Court in NLSA (Supra)”, stated the Court.

Regarding the amendment to the NCC Act, the Court stated that the Constitutional Court cannot issue a writ of mandamus directing the legislature to amend the Act. “The Court may, at best, record its opinion or recommendation on the necessity of either amending the existing law or coming out with a new law”, added the Court.

Accordingly, the writ appeal was partly allowed by permitting the petitioner to participate in the selection process for enrolling in the NCC.

Counsel for appellants (NCC): Additional Solicitor General ARL Sundareshan, Advocate N.S.Daya Sindhu Shree Hari

Counsel for petitioner/respondents: Advocates Thomas Abraham, Standing Counsel K.J.Glaxon, Senior Government Pleader T K Vipindas, Advocates Raghul Sudheesh, J.Lakshmi, Sanish Sasi Raj

Citation: 2024 LiveLaw (Ker) 144

Case title: National Cadet Corps v Hina Haneefa @ Muhammed Ashif Ali N

Case number: WA NO. 654 OF 2021

Click Here To Read/Download The Judgment