On Friday (April 9, 2021),a written petition filed against the judgment of the Single Judge was taken up for hearing by the Kerala High Court. The judgment was allowed a trans woman to enrol with the National Cadet Corps (NCC) in accordance with her self-perceived gender identity.
An appeal was moved by Sreerag S who was an intervenor in the original proceedings. A division Bench of Justices CT Ravi Kumar and Murali Purushothaman took up the appeal so filed.
The complainants appeal mainly assailed the decision of the Single Judge's direction which authorized Hina Haneefa to apply for enrollment in the Girls wing of NCC.
In his appeal, the complainant "Sreerag" through his Council Advocate K Arjun Venugopal asserts that Haneefa should only be recognized in the "transgender" or "third category. The appellant contended that it would be 'grossly unfair' to allow the entry of the petitioner to the corps on par with "biological girls".
The appellant's interest in the matter was questioned by the Division Bench in the Court and it was pointed out that the NCC was yet to file an appeal in the case.
At this point, the Court was informed that the NCC would also be filling an appeal by the Council for NCC,Central Government council NS Daya Sindhu Shree Hari .
The Court declared that in order to prevent any prejudice being caused to he NSS 's perspective appeal the Court would take the intervenor's appeal along with the NBC's. The Court proceeded to defer hearing of the case on taking note of this submission.
The council of NCC submitted in the court that during the vocation, the appeal against the Single Judge would be filed.
The Single Judge in her Judgment had opined that the petitioner has opted for the female gender and has undergone sex reassignment surgeries.
This would entitle enrollment in NCC reckoning her as a transgender and further, as a member of her self-perceived gender, that is the female gender. The third gender is not recognized by any provisions of the NCC Act and guidelines are required to be drawn up for the integration of the persons of the third gender into the Armed Forces. The Court observed that "the National Cadet Corps cannot be justified for denying admission of the Petitioner".
"A trans gender person is not recognized by law as belonging to his or her self-perceived gender"
In his ppeal Sreerag has contended that the law doesn't recognize transgender gender person as belonging to his or her self-perceived gender. He referred to the NALSA ruling and said that the Hijras, Eunuchs, apart from binary gender, are treated as "third to safeguarduarding their rights in part iii of the Indian Constitution and the laws by the Parliament and the State Legislature.
He went on to State,
"The learned single judge has failed to appreciate that the purpose of the NCC for training /education will be served even if a trans woman is treated as belonging to the third gender and permitted to participate in the NCC. " A trans girl righto right to insist that she wants to participate in NCC as a girl. Hence there was no necessity to declahe the respondent is entitled to enrollment into the Girls wing of the NCC.
Therefore, it was argued that any recognita ion of trans person by their self-perceived perceived gender will be "grossly unfair to biological women" and it will lead to the "Chaos in the Society"
"If the interpretation of the learned Single Judge is adopted, based on persons self-perceived identity such a biological man will have to be treated as a female", he added.
Sreerag's appeal points out that, "In the context of the NCC Act, the act contemplates Gender-specific modes of training and education without the basic structure of the legislation being questioned, and no case that enrollment into NCC should gender-neutral neutral. The appeal petition states that the judgment has the effect of dissolving the classification in the NCC based gender ".
It is further stated that through an amendment by Parliament, NCC enrollment should be amended.
Sreerag's appeal contended that since none of the respondents were competent to amend the legislation, therefore the attempt to amend the NCC Act was futile.
It also charged the High Court for issuing contrary directions. On lme hand the Court has issued ordering the enrollment of the petitioner within a month's time, while on the other hand the Court has directed for the amendment of the NCC enrollment criteria within 6 months.
The appellant has submitted that it is not possible to enroll Haneefa to the Corps without the enrollment being amended.
The appeal revolves around the ramifications the Single Judges ruling could have on other laws.
It is stated that the NCC Judgment would effectively affect lacontaincontains a classification based on Gender such as,
The Indian Penal code:
It contains such offences that can be committed against a woman a by a mam
Laws meant for the Special Protection of Women:
These laws would become meaningless. Since as per the appellants case, through an interpretive, process the term "women" has been modified by the impugned judgment.
Article 19 (1)( g) of the Constitution:
The appellant arguesthat, in terms of the right of Private business like beauty parlours, gyms, spas, hospital wards etc which exclusively serve female customers may be shut down citing discrimination which affect Article (19)(g) of the Indian Constitution.
The religious places waffectedeffected through the imposigender-baseder based discrimination or segregation. It will effectively end such Religious customs and practices.
Sreerag's appeal urges the High Court to strike down the single judge ruling on these grounds.
