The Division Bench of Justices PB Suresh Kumar and K Babu has refused to stay the operation of an order passed by the Single Judge of the high court allowing enrolment of a transwoman into the National Cadet Corps (NCC). The court said no stay can be granted till the appeals are heard on merits after the court vacation.
The refusal to stay has come in an appeal filed by the central government and the NCC against the judgment in the Hina Haneefa case wherein the court had directed the NCC to allow enrolment of Haneefa as one of the girl cadets.
In its appeal, the central government has argued that having transwomen in NCC would cause “serious physiological and psychological implications” on girl cadets.
The arguments forwarded by the NCC in its appeal reeks of transphobia that was rendered unlawful by the Supreme Court in the NALSA judgment. The apex court had clearly laid out that trans persons have a right to self-identify their gender, and the state must recognise that.
However, in its appeal, the NCC has argued that allowing Hina Haneefa to self-identify her gender would have “practical concerns” and “serious implications”.
“The Single Judge did not refer to the issue of propriety of permitting a transgender to take part in a group activity or community life exclusively meant for girls, solely based on the self-perceived identity.”NCC
It is further contended in the appeal that the single-judge bench “wrongfully imported” the NALSA judgment, and did not take into consideration the perceptions of the “whole girl cadets”.
The appeal claims that the “whole girl cadets” will have a problem with sharing a community life with a transgender, “who has got totally different physical and psychological features distinct from female gender”.
What Had The Single-Judge Bench Said?
The single-judge bench of Justice Anu Sivaraman had declared that a transgender person is entitled to be admitted to the NCC in accordance with their self-perceived gender identity. In other words, Haneefa, who identifies as a woman, can be inducted into the female wing of the NCC.
The judgment said that the right to dignity as enshrined in the NALSA judgment, 2014 and the Transgender Act, 2019 trumps the NCC’s argument that the latter does not have rules to enrol transgender persons.
Haneefa had challenged Section 6 of the NCC Act 1948, which classifies enrolment based on two genders – male and female. The Ministry of Defence, which governs the NCC, had argued that it cannot induct a transgender person because the NCC Act does not permit it to.
The judgment is expected to pave the way for transgender persons’ entry into paramilitary and military services.
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