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[NCC Act] "Person Cannot Be Denied A Legitimate Right Only Because She is A Transgender", Observes Kerala High Court

Radhika Roy
12 Nov 2020 8:23 AM GMT
[NCC Act] Person Cannot Be Denied A Legitimate Right Only Because She is A Transgender, Observes Kerala High Court

"Person cannot be denied a legitimate right only because she is a transgender", noted Justice Devan Ramachandran while hearing a plea filed by a transwoman, challenging Section 6 of the National Cadet Corps Act, 1948 as illegal and ultra vires of Articles 14, 15 and 21 of the Constitution of India.

The Act has been challenged to the extent that it excludes the transgender community from enrolment with the National Cadet Corps.

In today's hearing, the Central Government Standing Counsel (CGSC), appearing on behalf of NCC, submitted to the Court that NCC has only units for "male" and "female" cadets and that the transwoman's application could not be accepted as she was neither "male" nor "female".

The CGSC stated that the same was not discrimination, but reasonable classification as per Article 14 of the Constitution of India.

At this juncture, Justice Ramachandran directed NCC to file a written statement and was informed by Advocate Raghul Sudheesh, appearing for the Petitioner, that the last date for the enrolment is November 15.

Accordingly, the Court passed an interim order stating that he could not accede to the submission of the CGSC and that the Transgender Policy in Kerala applied to all statutes. Therefore, a person could not be denied a legitimate right only because she is a transgender.

In light of the above, the NCC Unit at the University has been directed to keep the seat vacant.

The Petition had been filed by Hina Haneefa, through Advocates Raghul Sudheesh, Lakshmi J., Glaxon K. J. and Sanish Sasi Raj.

The Plea has arrayed State of Kerala, University of Kerala, Thiruvananthapuram, University College, Thiruvananthapuram, National Cadet Corps, Associate NCC Officer, University College,Thiruvananthapuram, Commanding Officer NCC, Union of India as party respondents.

It may be noted that the petitioner was assigned the male gender at the time of birth and at the age of 21, thereafter, he underwent sex reassignment surgery from male to female on 22nd October 2018.

The Petitioner is presently a student of the University College, Thiruvananthapuram, and is interested in joining the Unit of the National Cadet Corps (hereinafter referred to as NCC).

However, in her plea, the Petitioner states that the fourth Respondent (National Cadet Corps), at the College, the fifth respondent (Associate NCC Officer) of the third respondent College (University College, Thiruvananthapuram), informed her that there was no provision for enrolment of transgender students in the NCC at present and therefore the petitioner cannot participate in the enrolment process scheduled to be held on November 10, 2020 tentatively.

She has submitted in her plea that in spite of her repeated requests, her representations have not been acted upon.

The plea also mentions the fact that the petitioner was an active member of NCC during her school days. She was an NCC Cadet in the school level and has attained 'A' certificate.

The plea further states, "As per Section 6 of the National Cadet Corps Act, 1948, the enrolment criteria are limited to male and female students and do not mention transgender students. This is highly discriminatory insofar as it excludes the transgender community."

Importantly, the plea highlights the fact that the University of Kerala has formulated a policy to help students belonging to the transgender community to pursue their education without any social discrimination.

Further, the plea argues that the policy states that the transgender category shall be included in the Application Forms and in all types of certificates for courses in all the educational institutions under the University and policy has been formulated to help the transgender students to help them gain confidence, acceptance, and acknowledgement in society.

In this context, the Plea contends, "the petitioner's request to join the NCC has not been taken into consideration in spite of this policy and all the social transformation that has been happening for the past several years in this sphere".

The plea further states that the two-judge bench of the Supreme Court in National Legal Services Authority v. Union of India (AIR 2014 SC 1863) declared Transgenders as the 'third gender', and affirmed that the fundamental rights granted under the Constitution of India will be equally applicable to them, and gave them the right to self-identification of their gender as male, female or third gender.

"The State of Kerala was the first to follow up on the ruling, introducing a Transgender Policy in 2015", mentions the plea.

Significantly, the Plea submits that the Transgender Persons (Protection of Rights) Act, 2019 bans unfair discrimination against transgender people in educational establishment and services, employment, healthcare services, access to the "use of any goods, accommodation, service, facility, benefit, privilege or opportunity dedicated to the use of the general public or customarily available to the public", the right to movement, the right to "reside, purchase, rent or otherwise occupy any property", the opportunity to stand for or hold public or private office, and in government or private establishments.

The matter will now be heard after two weeks.

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