A writ petition filed by a transgender woman, Heena Hanifa, sought direction to enroll her in the NCC unit of her college.
In a landmark judgment, the Kerala High Court on Monday directed the National Cadet Corps (NCC) to amend Section 6 of the National Cadet Corps Act in six months and include transgender persons for enrollment in the NCC.
While allowing a writ petition filed by Heena Hanifa, Justice Anu Sivaraman sought to direct a transgender woman to enroll her in the NCC unit of her college, she observed that in the Transgender Persons (Protection of Rights) Act 2019 Transgenders’ right to life was recognized with dignity and prohibited discrimination against them. In fact, the provisions of the NCC Act “cannot prevent the operation of the Transgender Rights Act, 2019”.
The purpose of the Act was to give effect to the rights of transgenders under Articles 14, 15, 19 and 21 of the Constitution. The court said that in view of the specific provisions of the 2019 Act, “a transgender person not only has the right to be recognized as a transgender, but is also considered”
The court had directed the NCC unit of University College, Thiruvananthapuram to keep one seat vacant when the petition filed by the transgender person against the transgender person accepting it by the NCC was last tabled in the university college unit. The petitioner alleged that the nomination was refused due to his gender only. The petition also challenged Section 6 of the NCC Act which allows only men and women to be admitted to the NCC.
The court said that the petitioner “who has opted for the female gender and has undergone two SRS [sex reassignment surgery] To support her self-perception as a member of the said gender would certainly be entitled to enrollment in the NCC Unit, which would allow her as a transgender and as a member of her own gender and as a female gender. I will explain further
Stating that the denial of nomination was unavoidable, the court clarified that it would be entitled to participate in the selection process on the basis of its application. “If she succeeds, the petitioner will be nominated to the NCC Unit”.
Opposing the petitioner’s petition, the NCC had submitted that as per the existing policy, there was no provision to allow transgender students to enroll themselves in the NCC. It was the prerogative of the central government to set up a new department for the third gender. Now only male and female genders were allowed to enroll in NCC. In fact, before creating a new division for the third gender, the center had to conduct a major exercise in terms of reviewing the infrastructure, modules and facilities for such a division. Any candidate from the transgender community will have far-reaching impact without deliberation by the authorities. The issue of raising a new division was a policy decision taken by the Center.
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