Delhi High Court Full Bench To Decide If Armed Forces Tribunal Can Decide On Vires Of Legislations Other Than AFT Act

The Delhi High Court's full bench is set to decide whether the Armed Forces Tribunal is competent to adjudicate on the vires of statutory legislations other than the Armed Forces Tribunals Act. A division bench comprising Justice C Hari Shankar and Justice Om Prakash Shukla referred the question to be decided by a full bench, comprising three judges. The Full Bench will also decide if the judgment of three judge bench of the High Court should 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?Another question to be decided by the Full Bench is that if such an interpretation is adopted, will it would extend to all the Tribunals, even if they are not constituted under Articles 323A and 323B of the Constitution of India. The Court was dealing with a plea filed by one Manish Kumar Giri who was enrolled as a sailor in the Indian Navy at Senior Secondary Recruit and whose services were administratively terminated as 'Services No Longer Required' under Regulation 279 of Regulations Navy Part-III (statutory) in 2017. The plea challenged an order passed by the authorities discharging him from his services from the Indian Navy. He also sought reinstatement with full back wages. The plea further challenged the constitutional validity of Section 9 of the Navy Act and Regulations 261, 268, 269, 278, and 279 of Navy Regulation (Part III), on the ground that they are void and unconstitutional to the extent they do not recognise the identity of transgender persons.It was the petitioner's case that during his employment with the Indian Navy, he slowly started identifying as female and wanted to appear and express himself in his female gender identity.He then informed the Naval authorities in February 2015, that he was suffering from gender dysphoria, and needed medical intervention, however, he alleged that the authorities failed to pay any heed to his concern and subjected him to psychiatric counselling. He later underwent Sex Re-Assignment Surgery in a private hospital in Delhi in October 2016. It was stated that some officials found out about the surgery and confined him to a psychiatric ward for five months without any basis, and subjected him to innumerable medical assessments. The plea said that when the petitioner re-joined work in April 2017, he was served with a show cause notice to which he duly replied. However, later, the authorities communicated the order of his discharge from the Indian Navy on the basis that “the existing service rules and regulations do not permit the sailor's continued employment owing to his altered gender status, medical condition and resultant employability restrictions.”The Court observed that in AFT, there is no concept of single member Bench and that as per Section 5(2) of the AFT Act, a Bench would constitute of an Administrative Member and a Judicial Member. It added that AFT is equally equipped to decide on the issue of challenge to vires especially in view of the experience of the judicial background of its members, in contrast to the Central Administrative Tribunal.Further, the Bench noted that the Administrative Tribunals are constituted under Article 323A of the Constitution of India and the AFT cannot be said to be a Tribunal constituted under the said provision. It reasoned that the service disputes of the Armed Forces do not fall within the subjects enumerated in Article 323B either and that 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.Referring to the Neelam Chahar full bench ruling, the Court said:“An incidental aspect of concern is 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.”It added: “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…”Counsel for 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, AdvsCounsel for Respondents: Mr. Chetan Sharma, ASG with Mr. Piyush Beriwal, Ms. Ruchita Srivastava, Mr. Amit Gupta, Mr. Vidur Dwivedi, Advs. with Mr. Naman, Commander AkarshanTitle: MANISH KUMAR GIRI ALIAS SABI GIRI v. UNION OF INDIA AND ORSCitation: 2025 LiveLaw (Del) 1195Click here to read order

Delhi High Court Full Bench To Decide If Armed Forces Tribunal Can Decide On Vires Of Legislations Other Than AFT Act

Nupur Thapliyal

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