The Delhi High Court has thrown a significant question back into the spotlight—can the Armed Forces Tribunal (AFT) decide on the constitutional validity of core provisions in laws like the Navy Act? The issue emerged in the case of Manish Kumar Giri alias Sabi Giri v. Union of India & Ors. (W.P.(C) 9535/2017), where a former Navy sailor who transitioned sought reinstatement and recognition of transgender rights.
The bench of Justice Om Prakash Shukla and Justice C. Hari Shankar, while hearing the plea, stopped short of granting relief and instead referred the matter to a larger bench, citing the “considerable public importance” of the questions raised.
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Background
Manish Kumar Giri joined the Indian Navy as a sailor but, during service, began identifying as female. In 2016, Giri underwent sex reassignment surgery in Delhi without informing naval authorities. The Navy, terming this as misconduct and citing repeated instances of indiscipline—including absences without leave—discharged Giri in October 2017 under the category of “Services No Longer Required.”
The petitioner, represented by senior advocate Trideep Pais, argued that Section 9 of the Navy Act and related regulations were unconstitutional because they failed to recognise transgender identity. The plea also sought reinstatement, back wages, compensation, and policy reform for recruitment and service conditions of transgender persons.
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The Union, through Additional Solicitor General Chetan Sharma, countered that the discharge was not about gender identity alone but stemmed from chronic indiscipline and absence from duty.
Court’s Observations
The High Court focused largely on a technical but crucial issue: Who has the jurisdiction to hear such challenges?
The petitioner contended that only High Courts and the Supreme Court could decide constitutional validity, as tribunals like the AFT were creatures of statute and could not strike down their parent laws. Counsel cited earlier Supreme Court rulings like Cellular Operators Association and Bal Krishna Ram.
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But the Union disagreed, pointing to the landmark L. Chandra Kumar judgment, where the Supreme Court held that tribunals could indeed hear constitutional questions, though their decisions were subject to High Court scrutiny. The government also relied on a Full Bench of the Delhi High Court in Neelam Chahar, which held that the AFT could test the legality of rules and policies.
The bench noted the complexity. “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,” Justice Shukla wrote.
The Court framed three questions for a larger bench to decide:
- Whether the AFT can adjudicate on the vires of statutory legislations like the Navy Act itself.
- Whether the earlier Neelam Chahar ruling must be read as granting AFT such jurisdiction.
- Whether this principle, if accepted, extends to all tribunals, even those not created under Articles 323A or 323B of the Constitution.
The matter will now be placed before the Chief Justice of the Delhi High Court to constitute a Full Bench.
Case Title: Manish Kumar Giri alias Sabi Giri v. Union of India & Ors.
Case Number: W.P.(C) 9535/2017 & CM APPL. 38755/2017