A full bench of the Delhi High Court has questioned whether the Armed Forces Tribunal can assess the constitutionality of Navy Act provisions excluding transgender individuals from service. The court sought the defence ministry's stance amid a petition by a former sailor challenging their discharge. The matter impacts personnel across all armed forces branches.
On October 17, a bench comprising Chief Justice DK Upadhyay, Justice C Hari Shankar, and Justice Om Prakash Shukla of the Delhi High Court directed the Union defence ministry to clarify the Armed Forces Tribunal's (AFT) jurisdiction. The court specifically asked if the AFT could adjudicate the constitutional validity of statutes beyond the Armed Forces Tribunal Act, 2007, including Section 9 of the Navy Act. This section outlines eligibility for the Indian Navy and Naval Reserve Forces, limiting appointments to Indian citizens and excluding women except in notified roles, without provisions for transgender individuals.
The proceedings arise from a petition by a former Navy sailor who challenged Section 9 and related regulations for failing to recognize transgender identities. The petitioner sought reinstatement with full back wages. Appointed as a sailor, the individual informed naval authorities of gender dysphoria and the need for medical intervention in February 2015, but received psychiatric counselling instead. In October 2016, they underwent gender affirmation surgery, leading to five months of confinement in a psychiatric ward. Upon returning to duty in April 2017, a show-cause notice was issued in March, and discharge followed in October 2017, citing altered gender status, medical conditions, employability issues, and misconduct such as long hair, nail polish, and non-adherence to appearance rules.
The Centre, represented by Additional Solicitor General Chetan Sharma, argued the petition's maintainability before the AFT and defended the termination as resulting from misconduct. The petitioner's counsel, Trideep Pais, contended the AFT's role is limited to the 2007 Act. The court appointed senior advocate Gautam Narayan as amicus curiae, emphasizing the case's broader implications for Army, Navy, and Air Force personnel. It directed responses from the defence secretary or a nominated high-ranking officer, with the next hearing set for November 28.
In its order, the bench stated: “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.”