A Petition filed by Hina Haneefa through Advocates Raghul Sudheesh, Lakshmi J., Glaxon K. J. and Sanish Sasi Raj in the Kerala High Court challenging the Section 6 of the National Cadet Corps Act, 1948 as illegal and ultra vires of Articles 14, 15 and 21 of the Constitution to the extent that it exclude enrolment of transgender community with the National Cadet Corps.
As a part Respondents, the plea arrayed, State of Kerala, University of Kerala, Thiruvananthapuram, University College, Thiruvananthapuram, National Cadet Corps, Associate NCC Officer, University College, Thiruvananthapuram, Commanding Officer NCC, and Union of India.
The petitioner was male at the time of birth, and at the age of 21 he underwent sex reassignment surgery from male to female and got converted into female on 22nd October 2018. The petitioner is presently a student at the University College, Thiruvananthapuram and is interest in joining the Unit of National Cadet Corps (NCC).In her plea she mentioned that she was an active member of NCC during her school days. She was an NCC cadet and has attained ‘A’ certificate.
In her plea, the petitioner stated that it was informed to her there was no provision for the enrolment of the transgender students in the NCC at present and cannot participate in the enrolment process scheduled on November 20,2020 tentatively, by the respondents National Cadet Corps, Associate NCC officer and University college, Thiruvananthapuram.
The plea further states that, “As per Section 6 of the National Cadet Corps Act, 1948, the enrolment criteria are limited to male and female students and do not mention transgender students. This is highly discriminatory insofar as it excludes the transgender community.”
The plea highlights that University of Kerala have made the policy to help students belonging to the transgender community to pursue their education without any social discrimination.
In this context, plea contends, “the petitioner’s request to join the NCC has not been taken into consideration in spite of this policy and all the social transformation that has been happening for the past several years in this sphere”.
In National Legal Services Authority v. Union of India (AIR 2014 SC 1863) ,the two judge bench of the Supreme Court declared that Transgender as the ‘third gender’, and affirmed that the fundamental rights granted under the Constitution of India will be equally applicable to the them, and gave them the right to self-identification of their gender as male, female or third gender.
The plea mentions that, “The State of Kerala was the first to follow up on the ruling, introducing a Transgender Policy in 2015”,
Sections 13 of the act provide that “Every educational institution funded or recognised by the appropriate government shall provide inclusive education and opportunities for sports, recreation and leisure activities to transgender persons without any discrimination on an equal basis with others”. The plea argues.
The plea says,
“Measures like the inclusion of transgender within NCC are necessary to address the rampant marginalisation and discrimination faced by them on a day to day basis. This will empower transgender students to conquer many heights. Often, they are forced to discontinue their studies midway owing to discrimination and unfair treatment. Exclusion of the petitioner from joining the NCC for being from the transgender community is highly unreasonable, arbitrary and unconstitutional.”
The petitioner have prayed that,
To Direct the 4th (National Cadet Corps) and 7th respondent (Union of India) to amend the enrolment criteria to include Transgender community in National Cadet Corps, and to Direct the 3rd (University College, Thiruvananthapuram), 4th (National Cadet Corps), 5th (Associate NCC Officer, University College, Thiruvananthapura) and the 6th Respondent (Commanding Officer) to take necessary steps for the enrolment of the petitioner in the National Cadet Corps.
The petitioner has prayed as an interim relief; she be allowed to take part in the enrolment process for joining the NCC unit of the University college, Thiruvanantapuram.
