The Kerala High Court has recently upheld a decision by a single judge to permit a transgender individual to register as a female cadet in the National Cadet Corps (NCC) based on her self-perceived gender identity.

A division bench comprising Justices Amit Rawal and CS Sudha ruled that as per the National Cadet Corps Act (NCC Act), which permits the entry of 'females', and considering that the transgender woman in question had been issued an identity card indicating 'female' gender, she is entitled to enrollment in the NCC.

The bench, however,  set aside a part of the single-judge's order that directed the Central government to amend the NCC Act to permit transgender individuals to enroll in the NCC.

The division bench stated that the court does not have the authority to issue an order directing the government to amend the law. However, it expressed optimism that the Central government would consider amending the NCC Act to explicitly permit the entry of transgender candidates into the NCC.

The case revolved around Hina Haneefa, a transwoman who had applied for enrollment in the NCC after undergoing gender-affirming medical procedures and obtaining an identity card reflecting her gender identity.

Haneefa was denied enrollment due to Section 6 of the National Cadet Corps Act, 1948, which permitted only 'males' or 'females' to join the NCC. The NCC interpreted this provision as not inclusive of transgender candidates. Consequently, Haneefa petitioned the High Court challenging Section 6 of the NCC Act. She argued that the refusal of the authorities to admit her to the NCC contradicted the legal precedent established by the Supreme Court in the NALSA judgment.

In March 2021, a single-judge of the Court granted Haneefa's petition, directing her inclusion in the selection process based on the application she had previously submitted. Additionally, the single-judge ordered the Central government to amend the enrollment criteria outlined in Section 6 of the NCC Act to facilitate the admission of transgender individuals.

Within a few weeks of this order, the Central government and NCC lodged an appeal, asserting that Haneefa could not be admitted to the NCC as she was classified under the third gender category, specifically as 'transgender (female)', rather than being categorized as 'female'.

It was contended that allowing Haneefa to join the NCC could potentially enable her to appeal to the Armed Forces Service Selection Board through NCC certification, despite the absence of provisions for the entry of transgender individuals in the Indian Armed Forces. Furthermore, it was argued that the Court exceeded its jurisdiction by issuing a mandamus directing the Central government to amend Section 6 of the NCC Act, as such decisions are considered policy matters.

The division bench meticulously examined several provisions of the Transgender Persons (Protection of Rights) Act, 2019, particularly Sections 2(d), 2(k), 4, 5, 6, and 7. Notably, it observed that the identity card issued to Haneefa by the Social Justice Department identified her gender as 'female'.

The division bench concluded that in accordance with Section 6(2) of the NCC Act, which permits any student of female sex from any university or school to enroll in the girls division, Haneefa is also entitled to be enrolled in the NCC as a female cadet.

While the bench agreed with the Central government's argument that the Court should not have directed it to amend the NCC Act, it partially allowed the appeal by overturning the directive to amend the NCC Act. Nonetheless, the authorities were instructed to allow Haneefa to participate in the selection process as a female candidate.

Haneefa was represented by advocates KJ Glaxon, Raghul Sudheesh, J Lakshmi and Sanish Sasi Raj.

The appellants (Central government, NCC) were represented by advocate NS Daya Sindhu Shree Hari.

The Kerala University was represented by advocate Thomas Abraham.