Kerala High Court allows transwoman to enroll as female cadet in NCC but says it can't order amendment of NCC Act

The Kerala High Court recently upheld a single-judge decision to allow a transgender person to enrol as a female cadet in National Cadet Corps (NCC) in accordance with her self-perceived gender identity [National Cadet Corps & Ors. v. Hina Haneefa & Ors.]..A division bench of Justices Amit Rawal and CS Sudha held that since the National Cadet Corps Act (NCC Act) allows entry of 'females' and the transgender woman in question had been issued an identity card with 'female' gender, she is entitled to be enrolled in the NCC."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 (NCC) 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 NALSA", the bench held. .The bench, however, set aside part of the single-judge's order directing the Central government to amend the NCC Act to allow transgender persons to enrol in NCC. The division bench said that the Court cannot pass such an order directing the government to amend the law. At the same time, it expressed hope that the Centre would amend the NCC Act to expressly allow the entry of transgender candidates to the NCC. "We are hopeful and confident that the Central government would rise to the occasion in the light of the dictim of the Apex Court in NALSA 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," the judgment stated. .The case concerned Hina Haneefa, a transwoman who had applied for enrolment in NCC after undergoing gender-affirming medical procedures and getting her identity card. She was denied enrolment on account of Section 6 of the National Cadet Corps Act, 1948 that allowed only 'males' or 'females' to enroll as cadets with NCC, and which was interpreted by the NCC to not include transgender candidates. Haneefa, therefore, moved the High Court challenging Section 6 of the NCC Act. She also contended that the refusal of the authorities concerned to admit her to the NCC went against the law laid down by the Supreme Court in the NALSA judgment. .In March 2021, a single-judge of the Court allowed Haneefa's petition by directing that she be allowed to participate in the selection process on the basis of the application she had already submitted. The single-judge also directed the Centre to amend its enrolment criteria under Section 6 of the NCC Act and to enable the entry of transgender persons..Within a few weeks of this order, the Central government and NCC moved an appeal reiterating that Haneefa cannot be admitted to NCC as she falls within the third gender category, that is 'transgender (female)' and not in the 'female' category. It was argued that if Haneefa is permitted to join NCC, it would allow her to appeal to the Armed Forces Service Selection Board through NCC certification, even though there is no provision for the entry of transgender persons in the Indian Armed Forces. It was also contended that the Court could not have issued a mandamus directing the Central government to amend Section 6 of the NCC Act as it is a policy decision..The division bench went through various provisions of the Transgender Persons (Protection of Rights) Act, 2019, especially Sections 2(d), 2(k), 4, 5, 6, and 7.It noted that the identity card issued to Haneefa by the Social Justice Department showed her gender as 'female'.It concluded that since Section 6(2) of the NCC Act says that any student of female sex of any university or school may offer herself for enrolment in the girls division, the bench said that Haneefa is also entitled to be enrolled in the NCC as a female cadet..However, the bench concurred with the contention by the Central government that the Court ought not to have directed it to amend the NCC Act. Accordingly, the bench allowed the appeal in part by setting aside the direction to amend the NCC Act. However, the authorities were ordered to permit Haneefa to participate in the selection process as a female candidate. .Haneefa was represented by advocates KJ Glaxon, Raghul Sudheesh, J Lakshmi and Sanish Sasi Raj.The appellants (Central government, NCC) were represented by advocate NS Daya Sindhu Shree Hari.The Kerala University was represented by advocate Thomas Abraham.Senior government pleader TP Vipindas appeared for the State government..[Read Judgment]