“The world has progressed, you cannot remain in the nineteenth century”, remarked Justice Devan Ramchandran of the Kerala High Court today while hearing a transwoman’s petition challenging Section 6 of the National Cadet Corps (NCC) Act, 1948.
The petition challenges the legislation for effectively allowing only ‘males’ or ‘females’ to enroll as cadets with National Cadet Corps.
The standing counsel for the Central government, Dayasindhu Shreehari who appeared for the NCC today insisted that refusing enrolment to the petitioner under the NCC Act, “was not discrimination” and sought additional time to place its counter-affidavit on record.
“This is an unfortunate stance the Government of India is taking!”
“Certainly there are three genders, male, female, and transgender“, Justice Ramachandran said.
“In this case the lady, the petitioner herein, has decided to assign to herself her gender as a woman and she has gone through surgery also. Nothing stops you from admitting her even under the NCC Act as a woman”, the Court emphatically stated.
To this, Shreehari responded that the petitioner had been admitted to her University as a transgender and that throughout her pleadings she had described herself as a transgender woman.
Justice Ramachandran vehemently remarked that the Government of India ought to have amended the NCC Act to make provision for transgender persons.
Shreehari additionally submitted that since the date for enrolment with the corps had been deferred pursuant to the Court’s previous order, no prejudice had been caused to the petitioner by the NCC.
This prompted the judge to remark,
“It is not a question of prejudice, it’s the attitude of the authorities that I’m worried about … The world has progressed, you cannot remain in the 19th Century.”
The world has progressed, you cannot remain in the 19th Century.
The Judge additionally opined that it should have been the government that stated that it was allowing enrolment, whatever the law stated.
Reiterating the NCC’s stance that it was not excluding anyone from its enrolment process, the standing counsel sought time to submit the NCC’s counter affidavit.
Recording the counsel’s submission that no prejudice was caused to the petitioner, the Court proceeded to direct the matter to be posted after ten days.
Filed through Advocates Raghul Sudheesh, Lakshmi J, Glaxon KJ and Sanish Sasi Raj, the petitioner has challenged her exclusion from the NCC on account of being transgender as arbitrary.
In the petition, it is emphasized that the inclusion of sexual minorities such as transgender persons is necessary to address the rampant marginalisation and discrimination faced by them.
The petitioner, presently a student at the University College, Thiruvananthapuram, underwent two sex reassignment surgeries and obtained a transgender identity card under the Kerala government’s Transgender Policy, 2015.
Apart from a declaration from the Court that Section 6 of the NCC Act is unconstitutional, the petitioner has also urged the Court’s intervention to allow her to be part of the enrolment process this year as interim relief.
The petitioner has further sought a direction to the NCC to suitably amend their enrolment criteria to allow the enrolment of transpersons.