The Delhi High Court has sought the Union Defence Ministry’s clarification on whether the Armed Forces Tribunal (AFT) has the authority to assess the constitutionality of the Navy Act’s provision that prohibits transgender individuals from being appointed to the Navy. This pivotal question arises from Section 9 of the Navy Act, which outlines eligibility criteria, including restrictions on women in certain roles and the general requirement for Indian citizenship.
A bench headed by Chief Justice DK Upadhyay, and including Justices C Hari Shankar and Om Prakash Shukla, made this inquiry on October 17. They are seeking to determine if the AFT’s mandate extends beyond adjudicating statutes related to the Armed Forces Tribunal Act, 2007, to include assessing the constitutional validity of other service acts.
The court emphasized the significance of the Defence Ministry’s response, noting that the case’s outcome could affect personnel across all armed forces branches. Senior advocate Gautam Narayan has been appointed as an amicus to assist the court, with the next hearing scheduled for November 28. The court’s order stated that the Defence Secretary or a nominated high-ranking officer must provide the ministry’s instructions.
The case originated from a petition filed by a former Indian Navy sailor. The petitioner challenged Section 9 of the Navy Act and related regulations, arguing they failed to recognize transgender identities. The sailor also sought reinstatement and full back wages.
The former sailor had disclosed their gender dysphoria and need for medical intervention to naval authorities in February 2015. Despite this, the authorities reportedly opted for psychiatric counseling instead of addressing the disclosed concerns. Following gender affirmation surgery in October 2016, the sailor alleged being held in a psychiatric ward for five months without proper justification. Upon returning to duty in April 2017, the sailor was issued a show-cause notice and subsequently discharged in October, citing service rules that did not permit continued employment due to their altered gender status and employability restrictions.
Representing the Centre, Additional Solicitor General Chetan Sharma argued that the petition was not maintainable, asserting the AFT’s competence to adjudicate the validity of the Act and regulations. Sharma also defended the termination, citing instances of misconduct such as long hair, wearing nail polish, and trimming eyebrows, which were seen as deviations from service appearance regulations.
Conversely, the former officer’s counsel, Trideep Pais, contended that the petition was maintainable, highlighting that the AFT’s jurisdiction is limited to examining the validity of the Armed Forces Tribunal Act, 2007, under which it was constituted.