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Kerala High Court Upholds Bar on Transgender Enrollment in NCC, Cites 1948 Act

KOCHI: The High Court of Kerala has dismissed a writ petition filed by a transgender person, Janvin Cleetus, who was denied enrollment in the National Cadet Corps (NCC). Justice N. Nagaresh held that the rejection was legally justified under the existing framework of the National Cadet Corps Act, 1948 , which only provides for the enrollment of male and female students.

While dismissing the plea, the court acknowledged the need for inclusion and directed the Registry to forward a copy of the judgment to the Union Ministries of Defence and Law and Justice for consideration and potential policy or legislative action.

Background of the Case

The petitioner, Janvin Cleetus, applied for enrollment in the 30(K) Battalion, National Cadet Corps Calicut Group, and successfully cleared the initial selection process. However, during the interview, his application was rejected upon revealing his gender identity as transgender.

The petitioner challenged this rejection, arguing that it was a clear violation of his fundamental rights guaranteed under Articles 14 (Right to Equality), 15 (Prohibition of discrimination), 19 (Right to Freedom), and 21 (Right to Life and Personal Liberty) of the Constitution of India.

Arguments Presented

Petitioner's Stance: The petitioner contended that denying him an opportunity solely based on his gender identity was discriminatory and unconstitutional. The rejection amounted to a violation of his fundamental rights, preventing him from participating in an organization aimed at youth development and national service.

Respondents' Defence: The Union of India and other respondents argued that their actions were bound by the statutory provisions of the NCC Act, 1948. They highlighted Section 6 of the Act, which explicitly permits the enrollment of "any student of the male sex" or "any student of the female sex" into separate divisions. The respondents stated that since the Act has no provision for a third gender, they were legally justified in their decision. They further pointed to the nature of NCC training, which involves close physical contact, camps in confined accommodations, and gender-specific divisions for the safety and well-being of the cadets.

Court's Rationale and Legal Principles

Justice N. Nagaresh, after hearing both sides, delved into the structure and purpose of the NCC as established by the 1948 Act. The court noted the Act's clear gender-specific language.

> "Section 6(1) of the National Cadet Corps Act, 1948 provides that any student of the male sex...may offer himself for enrollment... Section 6(2) provides that any student of the female sex...may offer herself for enrollment... There is no comparable provision for Transgenders in the National Cadet Corps Act, 1948 ."

The court found that the classification based on gender in the NCC framework constituted an "intelligible differentia." It reasoned that the distinct nature of the training, which includes stays in field conditions and close-contact exercises, necessitates measures to ensure the well-being of cadets, thus justifying the gender-specific divisions.

While acknowledging the petitioner's argument, the judgment stated:

> "It is true that candidates belonging to Transgender section stand to lose in the matter of enrollment in NCC and ideally the Transgender students should also get opportunity to enroll in NCC. But, the question is, taking into consideration the statutory provisions and the purpose for which gender specific divisions are maintained for students belonging to different gender, the existing provisions can be said to be violative of Article 14."

The court concluded that creating a new division for transgender cadets would be a policy matter requiring executive study and legislative intervention, as it would necessitate a sufficient number of transgender students to form a viable division.

Final Decision and Implications

The High Court dismissed the writ petition, thereby upholding the NCC's decision. However, in a significant move, the court recognized the gap in the law and its impact on transgender individuals. By directing that the judgment be sent to the concerned Union Ministries, the court has officially flagged the issue for governmental review. This could potentially pave the way for future amendments to the NCC Act, 1948, to make the organization more inclusive.