Sanchayita Lahkar

The High Court of Delhi Division Bench of Justice C. Hari Shankar and Justice Om Prakash Shukla has referred to a Full Bench the question of whether the Armed Forces Tribunal can rule on the constitutional validity of statutory provisions beyond the Armed Forces Tribunals Act. The reference arose in a case challenging the discharge of a Navy sailor following gender-affirming surgery and questioning Section 9 of the Navy Act, 1957. The three-judge Full Bench will also determine whether an earlier High Court judgment should be read as empowering the Tribunal to adjudicate the vires of such core statutory provisions.

The petition was filed by Manish Kumar Giri alias Sabi Giri seeking multiple reliefs, including the quashing of the order dated 04 October 2017, which discharged the petitioner from service in the Indian Navy. Consequential reliefs sought included reinstatement with back wages, quashing of the decision placing the petitioner in a low medical category, direction for framing a policy for recruitment of transgender persons, and compensation. The principal relief was a challenge to the constitutional validity of Section 9 of the Navy Act, 1957 and Regulations 261, 268, 269, 278, and 279 of the Navy Regulations (Part III), on the ground that they did not recognise the identity of transgender persons.

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The petitioner had been enrolled as a sailor under the Senior Secondary Recruit entry scheme. During employment, the petitioner informed naval authorities in February 2015 about suffering from gender dysphoria and subsequently underwent sex reassignment surgery in October 2016. The respondents placed the petitioner in a psychiatric ward, conducted multiple medical assessments, and later issued a show cause notice under Regulation 279(b) for discharge. On 06 October 2017, the discharge order was communicated on grounds that existing rules did not permit continued employment owing to altered gender status and medical condition.

The respondents, however, contended that the discharge was primarily on grounds of misconduct, citing multiple instances of absence without leave between 2011 and 2015. Punishments included detention quarters, stoppage of leave, and mulcts of pay. They argued that the petitioner was repeatedly warned under Regulation 279 and continued to display indiscipline, including non-compliance with service-like appearance and undergoing surgery without permission. According to respondents, the discharge was not only lawful but also necessitated by service discipline.

Preliminary objection was raised regarding maintainability, asserting that the AFT was the appropriate forum and the High Court lacked jurisdiction in light of the AFT Act, 2007. Petitioner's counsel argued that only constitutional courts could adjudicate on the validity of parliamentary legislations and cited decisions including L. Chandra Kumar v. Union of India and Cellular Operators Association of India v. Union of India to submit that tribunals cannot examine the vires of their parent statutes.

The Bench quoted: “The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court … The Tribunals shall not entertain any question regarding the vires of their parent statutes … In such cases alone, the High Court concerned may be approached directly.”

It was observed that under Section 14(1) of the AFT Act, the Tribunal was vested with “all the jurisdiction, powers and authority” of all courts in relation to service matters, except those of the Supreme Court and High Courts under Articles 226 and 227 of the Constitution. The Court noted: “From a bare reading of the abovementioned provision, this Court finds that the use of the words ‘jurisdiction’ and ‘service matters’ by the word ‘all’, provides an all-inclusive power to the learned AFT to adjudicate all matters relating to service of Armed Forces personnel.”

However, the Court distinguished between tribunals constituted under Articles 323A and 323B and the AFT constituted under an Act of Parliament. It stated: “The AFT cannot be said to be a Tribunal constituted under Article 323A of the Constitution … Further, the AFT has been constituted by an Act of the Parliament i.e., the AFT Act of 2007, whereas the Administrative Tribunals derive their power from the Constitution of India.”

The Court referred to Union of India v. Parashotam Dass (2023 SCC OnLine SC 314), where the Supreme Court clarified that powers of judicial review of High Courts were not ousted by the AFT Act. At the same time, it noted the Full Bench decision in Squadron Leader Neelam Chahar v. Union of India, where this Court held that the AFT was competent to hear challenges to the vires of subordinate legislations, rules, and regulations.

The Court remarked: “Since Neelam Chahar has been rendered by a Full Bench of three Hon’ble Judges of this Court, we deem it appropriate, in the interests of judicial discipline, to refer these issues to the Hon’ble Full Bench for decision.” It also raised an incidental query: “Whether, if the AFT is to be held to be competent to adjudicate on the vires of parliamentary legislations, would this principle extend to all Tribunals, even though they are not constituted under Article 323A or Article 323B of the Constitution of India.”

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The Court directed that the matter be placed before the Hon’ble Chief Justice for constitution of a Full Bench to decide the following questions:

“(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?”

“(ii) 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?”

“(iii) Whether, if such an interpretation is adopted, it would extend to all Tribunals, even if they are not constituted under Articles 323A and 323B of the Constitution of India?”

The Court ordered: “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.”

Advocates Representing the Parties:

For the Petitioner: Mr. Trideep Pais, Senior Advocate with Ms. Amritananda Chakravorty, Mr. Mihir Samson, Ms. Shreya Munoth, Ms. Sitamsini Cherukumalli, Ms. Saloni Ambastha, Ms. Sakshi Jain and Mr. Pradip Kumar Singh, Advocates.

For the Respondents: Mr. Chetan Sharma, Additional Solicitor General with Mr. Piyush Beriwal, Ms. Ruchita Srivastava, Mr. Amit Gupta, Mr. Vidur Dwivedi, Advocates with Mr. Naman, Commander Akarshan.

Case Title: Manish Kumar Giri alias Sabi Giri v. Union of India and Others
Neutral Citation: 2025: DHC:8653-DB
Case Number: W.P.(C) 9535/2017
Bench: Justice C. Hari Shankar, Justice Om Prakash Shukla