Can AFT decide constitutional validity of Navy Act provisions? Full Bench of Delhi High Court to decide
The Delhi High Court has referred to a Full Bench certain questions pertaining to the jurisdiction of the Armed Forces Tribunal (AFT).
The Division Bench of Justices C Hari Shankar and Om Prakash Shukla has referred questions on the competency of the AFT to adjudicate on the constitutional validity of legislation other than the AFT Act, such as the Navy Act.
"Keeping in view the issue raised in the present petition relating to the competency of the AFT to adjudicate a challenge to the constitutional validity of a provision under the Navy Act, being of considerable public importance, we deem it appropriate to refer the following questions for adjudication by a Full Bench to be constituted by Hon’ble the Chief Justice:
(i) Whether the Armed Forces Tribunal is competent to adjudicate on the vires of statutory legislations other than the Armed Forces Tribunals Act, such as the provisions of Section 9 of the Navy Act, which is involved in the present case?"
Another question raised by the Division Bench was if the AFT is held to be competent to adjudicate on the vires of parliamentary legislations, would this principle extend to all tribunals.
The Court noted that the AFT is not an administrative tribunal constituted under Article 323A of the Constitution of India, as it was constituted by an Act of the Parliament.
The Court was hearing a petition by an Indian Navy officer seeking quashing of the AFT’s order discharging them from service. They stated that during employment, they slowly started identifying as female, for which the Navy subjected them to psychiatric counselling. They underwent sex reassignment surgery after which they was subjected to medical tests at a psychiatric ward.
The petitioner sought a declaration that the provisions of the Navy Regulations under which they were terminated from service are unconstitutional to the extent that they do not recognise the identity of transgender persons.
The Central government contended that the petitioner was removed on grounds of misconduct as he was found with long hair, nail polish and trimmed eyebrows, refused to follow service-like appearance and had undergone gender reassignment surgery without informing naval authorities. It was also noted that the petitioner was absent without leave eight times. The Centre challenged the maintainability of the petition at the High Court as AFT is the court of first instance.
The Court observed that the relief sought by the petitioner is in the nature of a challenge to the constitutional validity of a provision in the Navy Act.
Senior Advocate Trideep Pais and Advocates Amritananda Chakravorty, Mihir Samson, Shreya Munoth, Sitamsin Cherukumalli, Saloni Ambastha, Sakshi Jain and Pradip Kumar Singh appeared for the petitioner.
Additional Solicitor General Chetan Sharma with Advocates Piyush Beriwal, Ruchita Srivastava, Amit Gupta, Vidur Dwivedi appeared for the Union.
[Read judgment]