In a blow to efforts of Transgender persons seeking parity in opportunity for entry to armed forces, the Central government told the Kerala High Court 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.
In an affidavit filed before the High Court, the Centre and NCC said that as of now, there is provision for enrolling only boy and girl cadets in NCC. Besides, since the aim of NCC is to groom cadets for future with the Armed Forces and the Armed Forces do not have a provision for entry of Transgender persons, the same is absent in NCC as well.
“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.
Any induction of a candidate who is not from male or female gender without due deliberations by the authorities, will have far reaching ramifications, the affidavit added.
The affidavit was filed in a petition by a trans-woman Hina Haneefa, who, moved the Kerala High Court challenging Section 6 of the National Cadet Corps (NCC) Act which allows only males and females to enrol with the Corps.
Filed through advocates CR Sudheesh, Raghul Sudheesh, Lakshmi J, Glaxon KJ and Sanish Sasi Raj, the petition stated that Haneefa is desirous of joining the NCC, stating that she had been a member of the corps earlier as well.
In the petition, it was 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, had 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 also urged the Court’s intervention to allow her to be part of the enrolment process this year as interim relief.
The NCC, in its affidavit, categorically opposed the petition filed by Haneefa and grant of any relief in her favour.
It submitted that it is empowered to enrol only those students as NCC cadets who meet the eligibility criteria as stipulated in Section 6 of the NCC Act, 1948 i.e., male & female gender only. It said that as per Section 6(2) only a student of female sex of any University or school could offer herself for enrolment as a cadet in the girls’ division.
The petitioner in this case exhausted her right to enrol per her self-‘perceived’ gender, that is, as a female because she was enrolled at university as a transgender (female), it was contended. Because she enrolled in her University as a Transgender, she is precluded from applying as a cadet in the girl’s division, the Centre added.
“It is humbly submitted that the Petitioner exhausted right to self-perceived gender identity by choosing the same as Female and has taken admission under the Transgender category (Female). Hence, she now falls under the third gender category i.e., “Transgender”. The petitioner cannot turn around and claim that the Petitioner is to be enrolled as a cadet in the Girls Division enrolment which is open only to female gender,” the affidavit said.
The NCC also flatly opposed the petitioner’s prayer to admit her as third gender stating that creation of third gender is a policy decision that requires resolution through different hierarchical and inter departmental consultations.
Allowing her to enrol her with the cadets would allow the petitioner to appear for the Service Selection Board whereas there is no provision existing for entry of transgender (Female/Male) in the Indian Armed Forces, it was pointed out.
At one of the previous hearings of the matter, the Kerala High Court censured the Central Government for failing to formulate a policy to enrol transpersons with the corps. It had remarked that the world has progressed, and the government cannot afford to remain in the 19th century.
“Certainly, there are three genders, male, female, and transgender. 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”, Justice Devan Ramachandran, who was hearing the plea, had orally remarked.
The Central government had earlier this year opposed grant of permanent commission to women officers in Army and Navy. However, the Supreme Court had, by its landmark verdict allowed the same ordering that Women Short Service Commission officers are entitled to Permanent Commission at par with their male counterparts.
Moreover, the Supreme Court had, in 2014, declared Transgender persons as third gender entitled to all rights and privileges which are available to other citizens.
The court in that path breaking verdict had ruled that Articles 14, 15, 16, 19 and 21 do not exclude transgender persons from its ambit and take into account their rights as well and, hence, discrimination against them on the basis of their gender would be a violation of Constitutional mandate.