Enacting laws is absolutely pointless unless our mindset changes: Kerala High Court on NCC denying admission to Transgender persons

Enacting laws is absolutely pointless unless our mindset changes, the Kerala High Court observed on Thursday taking exception to the inaction of the Central government in making provisions/ arrangements to allow admission of Transgender persons to National Cadet Corps (NCC) [Hina Haneefa @Muhammed Ashif Alin v. State of Kerala]..The delay in making requisite changes invited strong observations from the single-judge, Justice Anu Sivaraman who said that the government is duty bound to comply with the 2014 Supreme Court judgment of NALSA v. Union of India in this regard..“Passing of laws is absolutely of no use so long as our minds remain the same,” the Court said in response to the submission of the NCC counsel that the Centre has enacted the Transgender Persons (Protection of Rights) Act, 2019..Passing of laws is absolutely of no use so long as our minds remain the same.Kerala High Court .The Court was hearing a plea filed by a Transgender person challenging her exclusion from the NCC on account of her gender. The petitioner, presently a student at the University College, Thiruvananthapuram, had undergone two sex reassignment surgeries and obtained a transgender identity card under the Kerala government's Transgender Policy, 2015.The petition filed through advocates CR Sudheesh, Raghul Sudheesh, Lakshmi J, Glaxon KJ and Sanish Sasi Raj emphasized that the inclusion of sexual minorities such as transgender persons is necessary to address the rampant marginalisation and discrimination faced by them..NCC counsel, advocate Daya Sindhu Sreehari highlighted that the NCC Act contemplates an advisory committee and any changes to NCC have to be deliberated and decided by the committee.“We are not saying that Transgender persons will not be included at any time. We say that only after due deliberations we can include them,” he said..“That cannot be contended in the light of the Supreme Court judgment which is the law of the land,” the Bench responded..The Bench also asked NCC whether the advisory committee has in its meetings up until now considered the existence of Transgender persons when taking decisions. The lawyer answered in the negative..“Why not? We have a judgment in 2014. After that every committee of whatever nature has to consider that there are Transgender persons in our society and they are human beings and have rights too. You cannot wish them away,” Justice Sivaraman said..Advocate Sreehari, however, maintained that the Court can at the most direct the committee to consider the issue and take a decision.But the Bench disagreed."Not as an open direction. It has to be considered in accordance with what has been stated in the judgment. They have to be included. If it is your contention that you have to make arrangements changes etc, those should happen,” the Court made it clear..The NCC counsel maintained that it is the prerogative of the NCC to decide when Transgender persons should be allowed admission.“Yes, we want them to be at the forefront to defeat Bhishmacharya but it is our prerogative at what time we have to make our relevant (unclear)” he said..The Central government had earlier filed an affidavit in December 2020 stating that there is no provision in law allowing entry of Transgender persons to Armed Forces and National Cadet Corps (NCC) and it is the prerogative of the Central government to decide whether or not the same should be allowed.."It is the prerogative of the Central government to constitute a new division for third gender. Before constituting a new division for the third gender, the central government and authorities will have to conduct a major exercise in terms of reviewing the infrastructure facilities, modules," the affidavit said..But the Bench reiterated that the government has no prerogative in this regard..“It is not. It not your prerogative in the light of the judgment of the apex court which is binding and has to be complied with and you cannot sit on it. The only question is what effective steps you will take to see that they are also included,” the Court said..It is not your prerogative (to decide when Transgender persons should be allowed admission to NCC)..Counsel for the petitioner, advocate Raghul Sudheesh said that the law laid down by Supreme Court in NALSA is binding and is the law of the land by virtue of Article 141.He further said that NCC need not make any changes to accommodate the petitioner and the petitioner can be admitted as “female” since she has identified herself as female and the NALSA judgment recognises self-perceived gender identity..“The petitioner has undergone sex reassignment surgery and has identified herself as female. She can, therefore, be included in the female category of cadets even without any changes based on self-perceived gender identity as per the Act as well as the judgment. So the contention new requirements have to be made should be rejected,” he said.He also highlighted the case of two Transgender persons who entered the Tamil Nadu Police force as females and successfully completed their training..[BREAKING] No provision for entry of Transgender persons in NCC/Armed Forces; Prerogative of Centre to allow entry: Central govt to Kerala HC.Advocate for intervenor, Arjun Venugopal said that while he is not against the inclusion of Transgender persons in NCC, they have to be included as a third gender and should not be admitted in the category of male or female.The right to self-perceived gender identity, he said, is with respect to the Transgender person calling himself or herself as male or female as he/ she desires but will not extend to availing admissions to NCC wherein a third gender category has to be created for them..The Court after hearing the parties reserved its judgment.