Delhi High Court seeks MoD's stand on AFT's power to decide validity of statutes after transgender person challenges termination

The Delhi High Court recently sought the Defence Ministry's stand on whether the Armed Forces Tribunal (AFT) can decide the constitutional validity of statutes other than the Armed Forces Tribunal Act, 2007 [Manish Kumar Giri alias Sabi Giri v Union of India & Ors]. 

A Full Bench of Chief Justice Devendra Kumar Upadhyaya and Justices C Hari Shankar and Om Prakash Shukla said that the Defence Ministry’s stand on the matter is important since the outcome of the case will impact the personnel of all the armed forces including the Army, Navy and the Air Force. 

“We clarify that since this matter may have an impact over the Personnel of all the Armed Forces, including those of the Army and Air Force as well, apart from the Navy, we provide that the instructions in the matter shall be provided to learned counsel for the respondents by none other than the Secretary, Ministry of Defence, Government of India or any other High-Ranked Officer nominated by him for the said purpose,” the Court said. 

It also appointed Senior Advocate Gautam Narayan as the amicus curiae in the matter. 

“We also request learned counsel representing the parties to file their respective written submissions. The parties, including the learned Amicus Curiae shall submit a single bunch of judgments duly paginated. Written submissions and the compilation of judgments shall be filed by 14.11.2025,” the Court ordered. 

It will hear the case next on November 28. 

The case was referred to the Full Bench by a Division Bench to adjudicate on the following questions: 

• 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?

• Whether the decision in Neelam Chahar is to be understood as empowering the Armed Forces Tribunal with jurisdiction to adjudicate on the vires of statutory legislations, such as the provisions of the Navy Act?

• If such an interpretation is adopted, would it extend to all tribunals, even if they are not constituted under Articles 323A and 323B of the Constitution of India?

The Division Bench had framed these questions after a plea was filed by an Indian Navy officer seeking the quashing of the order discharging them from service after sex reassignment surgery. 

It was stated that the petitioner, during employment, started identifying as female and underwent a sex reassignment surgery. The Court was told that when the Navy found out about the surgery, it confined the petitioner to a psychiatric ward for five months without any basis whatsoever and subjected the petitioner to innumerable medical assessments. 

The petitioner sought to strike down the provisions of the Navy Regulations under which the petitioner was terminated from service. It was contended that the provisions do not recognise the identity of transgender persons.

However, the Central government contended that the petitioner was removed on grounds of misconduct as she was found with long hair, nail polish and trimmed eyebrows and over their refusal to follow service-like appearance and having 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 and said that the AFT is the court of first instance in such cases.

The Division Bench observed that the relief sought by the petitioner was in the nature of a challenge to the constitutional validity of a provision in the Navy Act and therefore, referred the questions to the Full Bench. 

Senior Advocate Trideep Pais along with advocates Amritananda Chakravorty, Mihir Samson, Shreya Munoth, Sitamsini Cherukumalli, Saloni Ambastha, Sakshi Jain and  Pradip Kumar Singh appeared for the petitioner. 

Additional Solicitor General (ASG) Chetan Sharma along with advocates Piyush Beriwal, Amit Gupta, Vidur Dwivedi, Naman and Jyotsna Vyas represented the Union of India. 

[Read Order]