The Kerala High Court on Friday refused to hear two appeals filed by the Central Government along with the National Cadet Corps and a private party against the Verdict of a single judge allowing transwoman Hina Haneefa to enrol with the National Cadet Corps in accordance with her self-perceived gender identity.

A vacation bench of Justices P.B. Suresh Kumar and K. Babu adjourned the appeals after vacation while refusing to stay the Judgement.

The Court expressed that the case was an important matter and that it was not keen on rushing with hearing the case.

Daya Sindhu Shree Hari, Counsel for the Central Government and Counsel for the NCC,  pressed for a stay of judgment, submitting that possible contempt could ensue if the judgment’s operation continued

Even if a contempt Petition is filed, it can be considered only after the vacation, the Court remarked in response to this submission, stating that no action was likely to be taken upon a contempt Petition, if so filed.

The Court additionally pointed out that the Single Judge who pronounced judgment in the case was presently not sitting and proceeded to adjourn the matter till after the vacation.

The Petition stated that the NCC contends that the Single Judge allowed Haneefa enrolment in the NCC’s Senior Division without considering the ramifications. The Judge ignored the serious psychological and physiological implications caused on girl cadets as also the practical concerns expressed during the proceedings, the NCC’s appeal memorandum reads.

It is also submitted that the NCC was primarily aimed at grooming cadets for a future with the Armed Forces whereas there is presently no provision for entry of Transgender (Female/Male) into the services.

The private party, one Sreerag S, was an intervenor in the original proceedings. His appeal claims,

 “a transgender person is not recognized by law as belonging to his or her self-perceived gender”. Referring to the NALSA ruling, he states that Hijras, Eunuchs, apart from binary gender, are treated as ‘third gender’ for the purpose of safeguarding their rights under Part III of our Constitution and laws made by the Parliament and the State Legislature.”

He goes on to state,

“the learned Single Judge failed to appreciate that even if a transwoman is treated as belonging to the third gender and permitted to participating in the NCC, the purpose of the NCC for training/education will be served. A trans-girl has no right to insist that she wants to participate in the NCC as a girl along with biological girls and not as a trans girl. Hence there was no necessity to declare the 1st Respondent is entitled to enrolment into the Girls’ Wing of the NCC”

The appeal Petition goes on to argue that any recognition of transpersons by their self-perceived gender identities will be “grossly unfair to biological women”, will lead to “chaos in society”.

Earlier, the Kerala High Court allowed a Petition moved by transwoman Hina Haneefa seeking her admission into the National Cadet Corps (NCC).

The bench of Justice Anu Sivaraman  delivered the judgment based on a plea challenging section 6 of the National Cadet Corps Act 1948.

“The Petitioner shall be allowed to apply for enrolment into NCC in the senior girls division, as per her self-perceived gender identity”, the Court ordered.

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The Court stated that the provisions of the NCC Act cannot preclude the operations of the provisions of Transgender Persons (Protection of Rights) Act, 2019 Act and the situation has to be viewed in the light of 2019 Act which recognises the right of transgender persons to a life with dignity and prohibits discrimination against them.

“The enactment was one intended to give effect to the rights guaranteed to such persons u/Arts 14, 15, 19, and 21 of the Constitution, has to be borne in mind when considering cases of this nature. In view of the specific provisions of the 2019 Act, a transgender person has the right to be recognized not only as a transgender but also a right to self-perceived gender identity”,

-the Court said.

The bench directed the NCC to amend the enrolment criteria prescribed u/s 6 of the NCC Act to include transgender persons and to provide guidelines for enrolling transgender persons also in the NCC.

ILNS: The Central government and the National Cadet Corps (NCC) have moved to the Kerala High Court, challenging the entry of a transgender into the National Cadet Corps (NCC), in accordance with her self-perceived gender identity.

The Centre and NCC, in their appeal, contended that a transgender person who has got different physical and psychological features distinct from the female gender cannot be allowed admission to the female category.

“The petitioner can only be treated as a Transwoman, which comes under the transgender category and cannot be inducted in female division. The Single Judge, without considering the ramification in inducting petitioner in female division, directed that the petitioner be inducted in the female division,” the appeal said.

Single Judge Justice Anu Sivaraman had directed that Hina Haneefa, the transwoman who petitioned the High Court, should be given enrolment in the girls’ wing of NCC.

This was based on two factors: one, the self-perceived gender identity of Haneefa, who recognises herself as a woman and also underwent a sex reassignment surgery to that effect; and two, that the Centre has not yet created a separate category for transgender persons in NCC, as mandated by the Supreme Court in its 2014 Judgement in NALSA vs Union of India.

The Centre contended that NCC is not a regular education institution, but an institution that was founded with the primary aim of grooming cadets for a future with the armed forces.

“The NCC follows a curriculum and training module, closely following the Armed Forces, which many times (is) gender-specific due to difference(s) in physical, biological and psychological aspects of various genders,” the appeal highlighted.

The training also includes close contact physical exercise/games, long and short camps where cadets stay in field conditions in tentages and confined accommodation, where gender specificity of cadets is to be taken into account for their overall well-being and safety, it said.

Hence, there is a need to follow gender-specific enrollment and grouping to avoid any untoward incident, it was submitted.

A transwoman in a girls’ unit will have an unfair advantage over other girl cadets; similarly, a transman in a boys’ unit will have an inherent disadvantage, the plea further said.

These practical aspects were not taken into account by the Judge, when she directed Haneefa to be accommodated in the girls’ category.

“The Judge also failed to consider the perceptions and preferences of girl cadets on being faced with the need of community life with a transgender person, who has got totally different physical and psychological features, distinct from the female gender,” the appeal said.

A Division Bench of the Kerala High Court had, however, already said that the Judge was forced to give directions to accommodate Haneefa in the girls category because the government had not created a separate category for transgender persons, in tune with the Supreme Court’s NALSA verdict.

This was during the appeal filed by an intervenor in the case, challenging the verdict of the Kerala High Court.

The counsel for the intervenor had, during the hearing of the appeal on April 9, said that he was only against granting admission to transwoman in the girls’ category.

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“Do you know why that was done,” the Bench demanded, before proceeding to highlight how the government had not made provisions for transgender persons till date.

Both the intervenor’s appeal and the Centre’s appeal will now be heard together

The Kerala High Court on Monday allowed a petition moved by transwoman Hina Haneefa seeking admission into the National Cadet Corps (NCC).

A Single-Judge Bench of Justice Anu Sivaraman passed this order while hearing Haneefa’s petition filed in October 2020. She had filed the petition challenging Section 6 of the National Cadet Corps Act 1948.

The petitioner, a student of University College, Thiruvananthapuram, moved court aggrieved at not being allowed to apply for enrolment with the NCC on account of her gender. Her representations in this regard were not acted upon, her petition said.

The petition termed the exclusion arbitrary and called upon the intervention of the Court to direct the NCC to suitably amend their enrolment criteria to allow transgender persons.

Additionally, her petition averred that the inclusion of sexual minorities such as transgender persons is necessary to address the rampant marginalization and discrimination faced by them.

“The petitioner shall be allowed to apply for enrolment into NCC in the senior girls division, as per her self-perceived gender identity”, the Court ordered.

The Court stated that the provisions of the NCC Act cannot preclude the operations of the provisions of Transgender Persons (Protection of Rights) Act, 2019 Act and the situation has to be viewed in the light of 2019 Act which recognizes the right of transgender persons to a life with dignity and prohibits discrimination against them.

“The enactment was one intended to give effect to the rights guaranteed to such persons u/Arts 14, 15, 19, and 21 of the Constitution, has to be borne in mind when considering cases of this nature. In view of the specific provisions of the 2019 Act, a transgender person has the right to be recognised not only as a transgender but also a right to self-perceived gender identity,” the Court said.

“I am of the opinion the petition who has opted for female gender and has undergone two SRS surgeries for aiding her self-perception as a member of the said gender will definitely be entitled to enrolment in the NCC Unit reckoning her as a transgender and further as a member of her self -perceived gender, ie female gender.

The fact that NCC Act does not recognize the third gender or that detailed guidelines are required to be drawn up for integration of persons of the third gender into the armed forces or the NCC, cannot, according to me, be a justification to deny entry to the petitioner into NCC.

I’m of the opinion, the petitioner is entitled to enrol in the NCC Senior Girls Division. The denial of enrolment is unsustainable. The petitioner will be entitled to participate in the selection process on the basis of her application. If she is successful, the Petitioner will be enrolled in NCC Unit,” the bench observed.

The bench directed the NCC to amend the enrolment criteria prescribed u/s 6 of the NCC Act to include transgender persons and to provide guidelines for enrolling transgender persons also in the NCC. The Court has directed respondents to make such changes without delay within six months.

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While the move to have people volunteer for a temporary period in the armed and paramilitary forces will help India have reserve personnel, it is too short a time to train them to acceptable standards.   

By Praful Bakshi    

All nations which have emerged as strong countries, both militarily or industrially, have done so due to the direct involvement of their young population. The recent statement of the government regarding citizens volunteering to serve 3-5 years in the three arms of the services and in paramilitary forces through a scheme called Tour of Duty has many facets to it. 

It seems a noble and viable idea as a large number of youth wish to taste the life of the armed forces, even for a short duration, before proceeding to civilian jobs. Service in the armed forces will expose a large section to the concept of national security, understanding of the roles of these forces and the threats faced by the nation from international conflict and counter-insurgency operations.

Besides this, the armed forces are adept in the science of management, its principles and innovation in advance techniques. These have been absorbed by all major administrative fields and corporate houses. Hence, when a large chunk of youth is exposed to such field application of management activities, it automatically prepares them to take up positions in managerial cadres in government services and the corporate sector. 

Also, the involvement of these people in defence would automatically lead to a reserve manpower which is at the disposal of the government for various duties in times of need. This will also lead to savings in defence pensions, which account for 30 percent of the total defence budget.  

However, there are cons too. All those who have served in the forces will point to the impracticality of this demand as three years is too short a time to train a young man to acceptable standards in the military. At least a year is required to train a raw recruit to become an officer. Thereafter, the officer would require to be trained for a particular role in any fighting or a technical arm and this would need a minimum of 3-5 years’ service. Hence, it would take at least 6-7 years from selection to the end of service for a man to become a competent officer. This would also include calling the person back after every five years for a refresher course of a year to maintain continuity so as to be a useful asset in times of national requirement.    

To meet this requirement regularly as a national policy, the first major step required would be selection of personnel for the Tour of Duty cadre. This can be done in a systematic manner if compulsory military training is imparted to every school and college student. The nation would then have a vast stock of citizen soldiers ready.

However, let us not forget that the Territorial Army (TA) brings in citizens to serve in various cadres of the army on a part-time basis, i.e. one three-month attachment every year. Some famous TA personalities are MS Dhoni, Kapil Dev, and former ministers KP Singh Deo and Manvendra Singh. This process can be re-evaluated to cater for a longer duration of 5-7 years as per the need of the nation.

Then there is also the National Cadet Corps (NCC). In the late sixties, NCC was compulsory for schools and colleges. These cadets contributed effectively to the nation, particularly during the 1962 and 1965 wars as escorts to military logistic trains, convoys of civil trucks carrying military equipment and escorting refugee columns as a support to the local police and administration. Why were these practices diluted?

In fact, the core centre for this should be strengthened and be an upgraded version of the NCC. It can be renamed the National Military Service Corps (NMSC). This can give a regular supply of personnel to the armed forces. It should be headed by an officer of lieutenant-general rank and be placed under the chief of defence staff.

The selection for NMSC can be done after the cadet of the senior wing has finished his graduation and obtained the C certificate as army, navy or air force cadet. Once selected, he will undergo one year of advanced training as planned for the three services.   

The state-level NMSC set-up could be headed by a major-general or equivalent rank officer. Full advantage would be taken of local military formations of the three forces. Extra funds should be given to meet the demand. Officers and men who are required to train the cadets, besides being from the three services, could also be from the BSF and ITBP on deputation.

Compulsory military training would hold good if the student has a fair understanding of national security, the role of the armed forces, management of disasters and development of modern weapons systems. This special subject must be started in Class 8 till college. The syllabus can be jointly worked out by a team of service officers and personnel from the ministry of education. Physical training can be the responsibility of the service groups so that the young men are exposed to weaponry and necessary technology. In addition, no cadet of the NMSC would be allowed to be part of any political activity, as required by the armed forces.

Successful cadets, after clearing an interview, could be granted 3-5 years’ service in the officer rank, as was suggested recently by the chief of army staff and CDS. For other ranks, all candidates who could not make it to the selection of the NMSC should be given five years’ service in the ranks. The question of absorption of these personnel into the services after 3-5 years will have to be worked out, but one thing is certain this vast reservoir of capable manpower would not only become the second line of defence, but would also contribute towards nation-building, governance, law and order, regional security, protection of vital points and areas, rural development programmes, upgradation of the environment, health, cleanliness and many other tasks like flood and earthquake management. 

In the long run, Home Guards could become a part of this process to give it added punch. At this juncture, they must be allowed to join the Territorial Army as per the existing TA practices and rules.

No doubt, the air force too is a choice for a large section of youth who are enamoured of fighter planes, attack helicopters and heavy transport aircraft. At this juncture, one must bring out a startling fact unknown to most of us till the early Seventies, besides the IAF, there was the Auxiliary Air Force, which as the name suggests, catered to national needs which could be met in the field of military aviation without putting extra load on the regular air force. There were fighters and helicopters in this service and the personnel were all on part-time employment of a year.

This service can also be reintroduced now, not only to meet the demands of citizens wanting to experience the air force, but to use as air power in counter-insurgency operations all over the country, extra surveillance on the border through drone operations and to aid civil and rescue operations in times of disaster such as earthquakes and floods. Besides flying, there are other activities related to ground engineering, maintenance, air traffic control and radar/missile operations where these young Indians can be employed.

However, the question of 5-6 years’ employment in the air force has to be reviewed if the person has aspirations to become a pilot. This is because the entrant will take at least 18 months to become a basic pilot in the transport and helicopter stream. He can serve as a co-pilot in a transport aircraft and get his captaincy and thereafter be absorbed in civil aviation to continue to be a national asset on the reserve list of the air force. The main advantage of this is that he gets his flying training free along with the required captaincy on twin and multi-engine aircraft/helicopters. 

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Similar procedures hold true for the navy, Coast Guard and paramilitary.

Such a vast reservoir of youth power is waiting to be tapped and the sooner this is done, the better it would be for the nation which is already getting threats from neighbours.

—The writer is a military analyst and air accident investigator

Lead Picture: PIB