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Transgender in NCC-Honoring Hina Haneefa’s Ruling

Author:

Oshin Gupta, PG Student, Nirma University

(Image Source: hindustantimes.com)


Introduction

“I am the happiest person today. More than my personal victory, I opened the door for my community members. It is just the beginning. I hope eventually we can join the armed forces also,” said Haneefa[1]. The word 'community members' is used here to refer to transgender people who are still not recognized by society in its entirety. We were assigned sexual identities when we were born, either as males or females. Ignoring all sexual orientations, we were destined to grow up as either a woman or a male for the rest of our lives. Haneefa, a transgender person who applied for entry to the National Cadet Corps (NCC), was denied for being a member of the transgender community as a result of these societal norms. The current article is about the landmark ruling, Hina Haneefa @Muhammed Ashif Ali N vs. State Of Kerala[2], which defied orthodoxy by allowing Trans- women to enroll in the National Cadet Corps (NCC). The Bench noted:


“Petitioner who has opted for the female gender and has undergone sex reassignment surgeries for aiding her self-perception as a member of the said gender would definitely be entitled to enrolment in the NCC unit reckoning her as a transgender and further as a member of her self-perceived gender, that is, the female gender.”[3] [Emphasis supplied]

Facts Of The Case

In the present case, the complainant, a trans- woman, had brought proceedings after the respondents had denied her request to be considered for enrolment in NCC. The petitioner had requested the Court to declare Section 6 of the NCC Act, 1948 as unconstitutional and in violation of Articles 14, 15, and 21 of the Constitution to the degree that it prohibits transgender persons from entering the NCC, and to order the respondent to amend the enrolment requirements to include them as well. Also, to order the respondents to take the steps required to enroll the petitioner in the NCC.


At the time of her birth, the applicant was assigned the male gender, and at the age of 21, she underwent sex reassignment surgery. On the 27th of May, 2019, additional surgery was done, and the petitioner's name was changed to Hina Haneefa. The complainant was also given a transgender identification card under the Kerala Transgender Scheme that indicated her gender as female. The petitioner's complaint was that she was denied admission to the NCC unit by an Associate NCC officer on the grounds that transgender students were not allowed to enroll. The petitioner argued that including sexual minorities as transgender people is important in addressing the widespread marginalization and discrimination they face.


Contentions By The Petitioner

The petitioner relied on the Supreme Court's decision in National Legal Services Authority v. Union of India and others[4] as well as the Transgender Persons (Protection of Rights) Act, 2019 to argue that she was entitled and qualified for enrollment based on the certificates she has made. It was argued that, following the Supreme Court's conclusive pronouncement on transgender people's rights to a life of dignity, the respondents' actions in entrenching prejudice against people like the petitioner solely because she was born with a gender identity that did not fit her self-perceived gender identity are in violation of the rights guaranteed under Articles 14, 15, 19 and 21 of the Indian Constitution.


The provisions of the Transgender Persons (Protection of Rights) Act, 2019, were also claimed to be manifestly violated by the respondents' acts. It was argued that any provisions of the National Cadet Crops Act, 1948, or the absence of such provisions in relation to transgender enrollment, must be viewed in light of the Apex Court's authoritative pronouncement and the provisions of the 2019 Act, since the enactment is clearly intended to end the oppression inflicted upon people like the transgender.


Contentions By The State

The petitioner's arguments were strongly rebutted by the state's counsel. The State stated that the NCC was developed with the aim of providing a suitable atmosphere for youth to prepare for a career in the Armed Forces, and it follows the Armed Forces' curriculum and training module, which is often gender-specific due to differences in physical, biological, and psychological aspects.


The sexual orientation of a transgender may be heterosexual, homosexual, bisexual or asexual. In normal circumstances, these biological features and sexual orientation will not have any impact on the society and organizations in which they function. However, in organizations like Armed Forces or NCC where close physical contact, confined stay under field conditions, sharing of basic facilities like accommodation, toilets, bathing, sleeping facilities etc. as a routine rather than the exception, there is a need for gender-specific regulations…”[5] [Emphasis supplied]


According to the state, a biological male who is either Transvestite (Cross-Dresser), Bigender, Demigender, or Transsexual, but has not undergone any medical procedure and assumes the gender identity of a female despite his sexual preference as bisexual or heterosexual, is entitled to join a girls NCC unit. The presence of such a person in the common bathroom, sleeping area, and in close proximity physical training activities, among other things, would be a violation of a girl cadet's privacy and dignity.


The State's claims were based on Section 6 of the NCC Act, which specified that “(1) Any student of the male sex of any university may offer himself for enrolment as a cadet in the Senior Division, and any student of the male sex of any school may offer himself for enrolment as a cadet in the Junior Division if he is of the prescribed age or over. (2) Any student of the female sex of any university or school may offer herself for enrolment as a cadet in the Girls Division: Provided that in the latter case she is of the prescribed age or over."[6]


Hence, it was contended that there is a need for more comprehensive categorization of transgender people based on their biological characteristics and sexual orientation in order to assign them a male or female gender identity, as well as specific instructions on medical and psychological implications of assigning gender identity to transgender people for induction into gender-specific organizations like the Armed Forces and the NCC. It argued that the said exercise is within the purview of the Central Government, and that before such comprehensive guidelines are established, the petitioner's enrollment in the NCC girls unit should not be considered, as it would have a broader negative impact across the country. It went on to say that:


NCC Act recognizes only persons belonging to the male or female gender and since the petitioner is admittedly a transgender, she cannot be enrolled in the NCC.”[7] [Emphasis supplied]

The Decision

After considering the arguments, the Court decided that the State's grounds for refusing to admit transgender people to the NCC were insufficient. The right of a human being to choose his or her sex or gender identity is fundamental to his or her personality, according to the Court, and is one of the most basic aspects of self-determination, dignity, and equality. The Bench, in criticizing the respondent's position, said:


We cannot take recourse to the outdated provisions of a 1948 enactment to deal with the realities of life in the year 2021. The situation has to be viewed in the light of the 2019 Act which recognizes the right of transgender persons to a life with dignity and prohibits discrimination against them.”[8] [Emphasis supplied]


The fact that the NCC Act does not acknowledge the third gender or that the specific guidelines are needed to be drawn up for the integration of persons of the third gender into the Armed Forces or the National Cadet Corps was not considered by the Court as a reason for refusing the petitioner’s entry to the NCC unit based on the Identification Card she received. The Hon’ble Kerala High Court ruled that the applicant Haneefa was entitled to participate in the screening process based on a previously filed application. When the Supreme Court recognizes transgender people and the State of Kerala takes proactive steps to include trans- people in educational institutions and workplaces, the NCC, which is part of the Ministry of Defense, cannot deny them the right to join as equal members. The Hon’ble Kerala High Court also required that section 6 of the NCC Act be amended within six months in order for it to be legally correct. The NCC Act should be amended to include transgender people alongside male and female people.


The Moral Conscience

The issue that emerges here is why, if transgender people have been granted rights in certain places, other areas are being ignored? It's important to remember that transgender people should be treated equally in all areas of life, including housing, marriage, schooling, and work. More people like Haneefa, who challenge arbitrary and outdated conventions, are required, particularly since the Constitution itself says, "Equality for all." The order of the Kerala High Court took the initiative, and it could establish a standard for a number of other actions. The legislative positions must be reviewed in order to make it mandatory to include all genders. This case paves the way for all of the flawed legislatures to be amended.[9]


It is not solely the duty of the judiciary or the legislature to ensure equality for all; rather, it is a collaborative effort, in which the society shares equal responsibility. Since our textbooks are the foundation of our education and society's understanding, they should be revamped to recognize the presence of different genders. It's a really simple notion that we are taught of two genders, male and female, in our early schooling days, and that the third gender, the 'Transgender,' is overlooked, especially when it comes to phrases like actor-actress, waiter-waitress, or host-hostess, and so on.[10]


Do you know the use of the pronoun ‘they’ in respect of labelling any gender? Actually, ‘they’ is used as a third-person plural pronoun. The pronoun ‘they' is often used as a sexually neutral particular pronoun[11]. Have we ever wondered why, prior to and after the NALSA decision, transgender people are subjected to humiliation and agony because they are a 'third' gender? It's most likely that society still looks down on them because of their sexuality. We have refused to provide them with the privileges to which they are entitled. The reason for this sexual neutral pronoun ‘they’ is the ‘narrow’ frame of mind. We must strive to operate for a culture that doesn’t discriminate on the basis of gender, but instead promotes the message that we are all one and the same irrespective of gender.


Final Remarks

In the historically conservative country, the community had long faced bigotry and ignorance. The Indian Election Commission took the first step in 2009 by authorizing transgender people to choose "other" as their gender on ballot forms. The Supreme Court's famous NALSA decision, which recognized transgender people as a third gender, was another watershed moment. However, India wasn’t the first nation to recognize the presence of a third gender. When the Supreme Court directed the government to repeal all laws discriminating on the basis of sexual orientation or gender identity in 2007, Nepal recognized a third gender. But, transgender people can be denied what is considered ordinary. We now have notable instances of transgender people overcoming the shackles to become the first in their profession, from academia to politics, but their path has been fraught with obstacles and hardships.


The Kerala High Court's notable decision is a win for any transgender person in the country who is denied basic rights. This decision has set a precedent, allowing the community to reach for and accomplish goals that were previously unthinkable for transgender people. Gender equality cannot be accomplished merely by citing it in a paper; all pillars of democracy, as well as society as a whole, should strive to offer fair justice to all. It's probably time for us to acknowledge that transgender people are on par with us and accept them wholeheartedly.


References

[1] Babu R, “Allow Transpersons, amend National Cadet Corps: Kerala High Court”, Hindustan Times, March 15th, 2021; Retrieved from https://www.hindustantimes.com/india-news/allow-transgenders-amend-national-cadet-corps-act-kerala-high-court-101615800294065.html [2] WP(C). No. 23404 of 2020. [3] Hina Haneefa @Muhammed Ashif Ali N vs. State of Kerala on 15th March 2021; Retrieved from https://indiankanoon.org/doc/94273519/ [4] AIR 2014 SC 1863. [5] Supra Note 1 [6] The National Cadet Corps Act, 1948 (Act No. 31 of 1948); Retrieved from https://legislative.gov.in/sites/default/files/A1948-31.pdf [7] Supra note 1 (para 7) [8] Supra Note 1 (para 13) [9] Alagh C, “Transgender People Can Join NCC: Hina Haneefa’s Landmark Victory”, Feminism In India, March 18, 2021; Retrieved from https://feminisminindia.com/2021/03/18/kerala-high-court-judgment-ncc-act-transgender-persons-right/ [10] Ibid [11] Ibid

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