Even while a division bench of the Kerala High Court upheld a single-judge decision to allow a transgender person to enroll as a female cadet in National Cadet Corps, it set aside a part of the single-judge's order directing the Centre to amend the NCC Act to allow transgender persons to enroll.
"When the petitioner has been given the identity of a female, she is certainly entitled to be enrolled in the NCC under Section 6(2) of the (NCC) Act; in the light of the aforesaid provisions of the Transgenders Act and also in the light of the dictum laid down by the Apex Court in National Legal Service Authority (NALSA), said the division bench.
But the division bench said that the court cannot pass an order directing the government to amend the law, but expressed hope that the Centre would amend the NCC Act to expressly allow the entry of transgender candidates to the NCC.
"We are hopeful and confident that the Central government would rise to the occasion in the light of the dictum of the Apex Court in NALSA and the provisions of the Transgenders Act and take steps expeditiously to include the third gender also within the scope of Section 6 of the Act," said their order.
The division bench was looking into the case of Hina Haneefa, a transwoman who had applied for enrollment in NCC after undergoing gender affirming medical procedures and getting her identity card.
But she was denied enrollment on account of Section 6 of the National Cadet Corps Act, 1948 that allowed only 'males' or 'females' to enroll as cadets with NCC, and which was interpreted by the NCC to not include transgender candidates.
Haneefa then approached the High Court challenging Section 6 of the NCC Act.
In March 2021, a single-judge of the Court allowed Haneefa's petition by directing that she be allowed to participate in the selection process.
Besides this, the single judge directed the Centre to amend its enrollment criteria under Section 6 of the NCC Act and to enable the entry of transgender persons.
But the Central government and NCC moved an appeal stating that Haneefa cannot be admitted to NCC as she falls within the third gender category, that is 'transgender (female)' and not in the 'female' category.
However, the division bench after perusing various provisions concluded that since Section 6(2) of the NCC Act says that any student of female sex of any university or school may offer herself for enrollment in the girls division, the bench said that Haneefa is also entitled to be enrolled in the NCC as a female cadet.
But the division bench said it cannot pass an order directing the government to amend the law, but expressed hope that the Centre would amend the NCC Act.
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