Delhi HC Delves into AFT's Limits: Transwoman's Battle Against Navy Firing Sparks Debate on Tribunal's Constitutional Reach

Why in News

The Delhi High Court, in a significant October 17 order, asked the Ministry of Defence (MoD) to clarify if the Armed Forces Tribunal (AFT) can decide the constitutional validity of laws beyond its own enabling Act, amid a transwoman's ongoing challenge to her 2017 dismissal from the Indian Navy. This development, referred to a three-judge bench, highlights tensions between military discipline, transgender rights, and judicial oversight, especially as the case could set precedents for gender transition policies in the armed forces.

Key Points

1. A three-judge bench led by Chief Justice D K Upadhyaya, including Justices C Hari Shankar and Om Prakash Shukla, issued notices to the MoD, directing its Secretary or a high-ranking officer to respond on the AFT's jurisdiction over statutes like Section 9 of the Navy Act, 1957.
2. The case stems from petitioner Sabi Giri's 2017 discharge as a sailor after undergoing gender reassignment surgery without informing authorities, which the Navy labeled as misconduct including non-compliance with service appearance norms like long hair and nail polish.
3. Giri's petition seeks to quash the AFT's 2023 dismissal of her plea, declare Section 9 unconstitutional for discriminating against transgender persons, and frame a policy for their recruitment and service conditions in the armed forces.
4. Senior Advocate Gautam Narayan was appointed as amicus curiae to assist the court, with the next hearing scheduled for November 28, 2025.
5. The Centre opposes the petition's maintainability, arguing the AFT is competent to handle constitutional challenges and that Giri's discharge was justified due to repeated misconduct, not solely her gender transition.
6. This referral builds on a September 26 division bench hearing, emphasizing the case's potential impact on all armed forces personnel and transgender inclusion under the 2014 NALSA judgment recognizing gender identity rights.

Explained

What Triggered This Legal Challenge in the Delhi High Court?

• Petitioner's Background:

Sabi Giri, originally enrolled as a male sailor in the Indian Navy, underwent gender reassignment surgery in 2016 at a civilian hospital in Delhi without prior naval approval, leading to her identification as a transwoman and subsequent conflicts over appearance and discipline.

The Navy initiated proceedings under Section 9 of the Navy Act, 1957, which allows dismissal for misconduct, citing instances like maintaining long hair, using nail polish, trimmed eyebrows, and refusing to adhere to male uniform standards, resulting in her formal discharge in 2017.

• Initial Proceedings and AFT Ruling:

Giri first approached the AFT, which in 2023 upheld her dismissal, viewing the surgery and related behaviors as breaches of service rules rather than protected gender expression, prompting her appeal to the Delhi HC.

Her HC petition, filed under Article 226, not only contests the discharge but also challenges the broader lack of transgender-specific policies in the military, drawing from the Supreme Court's 2014 NALSA verdict affirming self-identified gender without medical intervention.

• Court's Referral to Larger Bench:

On September 26, a division bench flagged the core issue of AFT's jurisdictional limits, referring it to a full bench to avoid conflicting rulings and ensure uniform application across services like Army, Navy, and Air Force.

This step underscores the judiciary's cautious approach to military matters, balancing individual rights with operational discipline in a force of over 1.4 million personnel.

What is the Armed Forces Tribunal and Its Role in Military Disputes

• Establishment and Purpose:

Created under the Armed Forces Tribunal Act, 2007, the AFT serves as a specialized quasi-judicial body to expedite resolutions for serving and retired personnel on service matters like promotions, pensions, and disciplinary actions, reducing the burden on civil courts.

It operates through 17 benches across India, with appellate powers over its decisions vesting in High Courts, but its scope is limited to interpreting service laws without delving into constitutional questions unless directly tied to the Act itself.

• Jurisdictional Boundaries:

Section 14 of the AFT Act empowers it to rule on disputes under military statutes like the Army Act, Navy Act, and Air Force Act, but debates arise on whether it can strike down provisions as unconstitutional, a power typically reserved for High Courts and the Supreme Court under Articles 226 and 32.

Precedents like the 2010 Madras HC ruling affirm AFT's focus on factual disputes, not policy or validity challenges, making this case pivotal for clarifying if tribunals can address equality rights under Article 14 in gender contexts.

• Implications for Transgender Personnel:

The AFT's limited role could force more cases to higher courts, delaying justice for the estimated 5,000-10,000 transgender individuals in India seeking military careers, per advocacy groups like the Transgender Welfare Equity and Empowerment Trust (TWEET).

It highlights gaps in implementation of the Transgender Persons (Protection of Rights) Act, 2019, which mandates non-discrimination but lacks specific military guidelines, unlike the US or UK's inclusive policies post-2016.

How Does Section 9 of the Navy Act Fit into This Dispute

• Provision Overview:

Section 9 empowers commanding officers to dismiss or discharge personnel for "conduct prejudicial to good order and naval discipline," a broad clause used for over 1,000 annual separations, often without detailed hearings.

In Giri's case, it was invoked for her post-surgery appearance, raising questions if such applications violate Article 14's equality guarantee by indirectly penalizing gender identity changes.

• Constitutional Challenge:

Giri argues it discriminates against transgenders by enforcing binary gender norms, contravening the NALSA judgment's recognition of third gender and the 2018 Supreme Court decriminalization of homosexuality in Navtej Singh Johar v. Union of India.

The Centre counters that military exigencies justify strict uniformity, citing operational needs in a force where cohesion is paramount, but critics note evolving global standards allowing transitions with medical certification.

• Broader Policy Gaps:

No dedicated armed forces policy exists for transgender service members, unlike the 2020 Army guidelines for Agniveers that vaguely reference inclusivity, leaving room for arbitrary enforcement.

Advocacy pushes for amendments mirroring civilian sector reservations under the 2019 Act, potentially integrating 1-2% transgender recruits to enhance diversity and morale.

What Are the Potential Outcomes and Wider Impacts

• Judicial Precedents:

A ruling affirming AFT's expanded powers could streamline transgender claims within tribunals, reducing backlogs of 50,000+ pending cases, while limiting it would reinforce High Courts' primacy in rights-based military litigation.

Success for Giri might mandate policy framing, aligning with SDG 5 on gender equality and boosting recruitment from marginalized groups.

• Societal and Strategic Ramifications:

Positively, it could foster a more inclusive military, improving mental health outcomes—transgender personnel face 40% higher suicide risks per WHO data—and reflecting India's constitutional ethos of dignity under Article 21.

Challenges include training costs (estimated Rs 50-100 crore annually) and resistance from conservative ranks, but examples like Israel's integrated model show feasibility without compromising readiness.

• Government and Advocacy Responses:

The MoD's response, due by November, may cite ongoing reviews post-NALSA, while NGOs like Naz Foundation urge interim guidelines to prevent further dismissals amid rising transgender enlistments.

This case echoes global shifts, like the UK's 2021 policy allowing transitions, positioning India to lead in South Asia on queer military rights.

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