IMPORTANT POINT
The judgment established the entitlement of transgender persons to be recognized and enrolled in the NCC, emphasizing the right to self-perceived gender identity and addressing the limitations of issuing a mandamus to amend the Act.

JUDGMENT :

C.S. Sudha, J.

This intra court appeal has been filed by respondents 4 to 7 in W.P.(C) No.23404/2020 against the judgment dated 15/03/2021 by which the writ petition was allowed. The respondents herein are the petitioners and respondents 1 to 3 respectively in the writ petition. The parties and the documents will be referred to as described in the writ petition.

2. According to the first respondent, she is a transwoman who secured admission for B.A. History course in the third respondent college under the special category of transgender. The petitioner was assigned male gender at the time of birth. At the age of 21 the petitioner on 22/10/2018 underwent sex reassignment surgery from male to female at Vela Hospitals Pvt. Ltd., Coimbatore. The petitioner had also undergone another surgery as part of the sex reassignment on 27/05/2019 at Renai Medicity, Kochi. Earlier the petitioner's name was 'Muhammed Ashif Ali N.' and after the sex reassignment surgery, the name has been changed to 'Hina Haneefa'. Pursuant to the surgery, the Social Justice Department issued Ext.P3 transgender identity card dated 08/02/2019 to the petitioner. The petitioner applied for enrolment in the National Cadet Corps (NCC) at the college. However, her application was not favourably considered.

2.1. As per Section 6 of the National Cadet Corps Act, 1948 (the Act), the enrolment criteria is limited to male and female students and do not refer to transgender students. The petitioner's request was not favourably considered despite the second respondent University formulating a policy to help students belonging to the transgender community to pursue their education without any social discrimination. The refusal of the authorities concerned to admit the petitioner to NCC is against the law laid down by the Apex Court in National Legal Services Authority (NLSA) v. Union of India, AIR 2014 SC 1863 and the provisions of the Transgender Persons (Protection of Rights) Act, 2019 (the Transgenders Act). As the provisions of the Act are discriminatory as far as the transgender persons are concerned, the writ seeking a direction in the nature of mandamus for declaring Section 6 of the Act as illegal and ultravires of Articles 14, 15 and 21 of the Constitution of India to the extent it excluded transgender community from enrollment in the NCC ; a writ of mandamus directing respondents 4 and 7 to amend the enrollment criteria in the Act to include transgender community in NCC and also a direction to respondents 3 to 6 to take necessary steps for enrolment of the petitioner in the NCC.

3. Respondents 4 to 7 filed counter affidavit contending that the NCC authorities are empowered to enrol only those students as NCC cadets who meet the eligibility criteria as stipulated in Section 6 of the Act, that is, male and female students only. The petitioner secured admission in the college identifying and claiming to be a transgender and declaring that the petitioner belongs to the transgender category (female). Therefore, the petitioner cannot now turn around and claim to be enrolled as a cadet in the Girls Division, enrolment for which is open only to female gender. The petitioner has exhausted the right to self-perceived gender identity by choosing the gender as "Female" and thereafter took admission under the transgender category (female). She now falls under the third gender category, that is "transgender (female)" and not in the 'female' sex category, as is being claimed by her. As per Section 6(2) of the Act any female student can offer herself for enrolment as a cadet in the Girls Division. Therefore for getting the benefit of Section 6(2) of the Act, the candidate has to be enrolled under the female category in the College. As per the existing policy, there is provision to enroll only boys and girls cadets in the NCC. The facilities, training module and other curriculum provided in the NCC to both the divisions are different.

3.1. Further, it is the prerogative of the