The Delhi High Court has sought a Full Bench ruling on whether the Armed Forces Tribunal (AFT) can decide the constitutional validity of statutory provisions, such as those contained in the Navy Act, 1957.
The case arose from a writ petition filed by a former sailor of the Indian Navy who underwent gender reassignment surgery during service. Later, he was discharged from the Navy under Regulation 279(b) of the Navy Regulations (Part III) on the ground that his services were “no longer required.” He challenged the discharge order as discriminatory and violative of his fundamental rights under Articles 14 and 21 of the Constitution. The petition also questioned the constitutional validity of Section 9 of the Navy Act, 1957, and Regulations 261, 268, 269, 278, and 279, alleging that they fail to recognise and protect the rights and identity of transgender persons. The petitioner further sought reinstatement, back wages, and directions to frame a policy governing the recruitment and service of transgender personnel in the Armed Forces.
The petitioner contended that the AFT lacks jurisdiction to decide upon the constitutional validity of the parent statute or the rules framed under it. Relying on L. Chandra Kumar v. Union of India (1997) 3 SCC 261, the petitioner argued that tribunals constituted under legislation cannot strike down provisions of their parent enactment. Hence, the petitioner asserted that the writ petition before the High Court was maintainable.
Respondents, on the other hand, opposed the maintainability of the writ petition, arguing that the petitioner had an alternative and efficacious remedy before the AFT. Respondents further submitted that the discharge was based not on gender identity but on repeated instances of indiscipline, including multiple occasions of absence without leave. Relying on Sqn. Ldr. Neelam Chahar v. Union of India W.P (C) 9139/2019, the respondents argued that the AFT is competent to examine the validity of rules, regulations, and policies framed under the Armed Forces Acts.
After considering the submissions, the Bench of Justice C. Hari Shankar and Justice Om Prakash Shukla has noted that a recurring jurisdictional conflict exists because of contrary rulings in L. Chandra Kumar Union of India (1997) 3 SCC 261 and Neelam Chahar v. Union of India W.P (C) 9139/2019 on the extent of the AFT’s powers.
The Court further observed that the tribunals created under Articles 323A and 323B can exercise certain powers of judicial review, and they remain subject to the jurisdiction of the High Courts under Articles 226 and 227. However, the tribunals constituted under ordinary legislation, such as the Armed Forces Tribunal Act, 2007, are not tribunals under Article 323A or 323B. Therefore, whether they can decide the vires of parent legislations like the Navy Act, 1957, raises a substantial constitutional question.
Consequently, in view of the apparent conflict and the recurring nature of the question, the Division Bench referred the following questions to a Full Bench:
(1) Whether the AFT has jurisdiction to decide the vires of statutory legislations, such as provisions of the Navy Act, 1957;
(2) Whether the ruling in Sqn. Ldr. Neelam Chahar v. Union of India W.P (C) 9139/2019 correctly holds that the AFT may test the constitutionality of provisions of the Army, Navy, or Air Force Acts; and
(3) Whether the same principle would extend to other tribunals not established under Articles 323A or 323B of the Constitution.
The Bench directed that the matter be placed before the Chief Justice of the Delhi High Court to constitute a Full Bench to resolve the jurisdictional issue.
Appearances
Petitioner- Mr. Trideep Pais, Sr. Adv with Ms. Amritananda Chakravorty, Mr. Mihir Samson, Ms. Shreya Munoth, Ms. Sitamsini Cherukumalli, Ms. Saloni Ambastha, Ms. Sakshi Jain and Mr. Pradip Kumar Singh, Advs.
Respondents- Mr. Chetan Sharma, ASG with Mr. Piyush Beriwal, Ms. Ruchita Srivastava, Mr. Amit Gupta, Mr. Vidur Dwivedi, Advs. with Mr. Naman, Commander Akarshan.