When Parliament's Laws Face Judicial Scrutiny: Delhi HC Weighs in on AFT Competence

By Legal Correspondent

The Delhi High Court has hit the pause button on a significant case involving the discharge of a transgender sailor from the Indian Navy, choosing instead to address a foundational question regarding the jurisdictional limits of the Armed Forces Tribunal (AFT). The case, Manish Kumar Giri alias Sabi Giri vs. Union of India , serves as a litmus test for how Indian courts reconcile tribunal powers with the constitutional mandate to review the validity of legislation.

The Backdrop: A Sailor’s Struggle

The petitioner, a former Senior Secondary Recruit (SSR) in the Indian Navy, alleges he was wrongfully discharged after identifying as female and undergoing gender reassignment surgery. While the Navy maintains the discharge was based on "misconduct"—specifically, repeated unauthorized absences and failure to maintain service standards—the petitioner claims the action was motivated by bias against his gender identity. Consequently, the petitioner challenged the constitutional validity of Section 9 of the Navy Act, 1957 , alongside various service regulations, arguing they fail to recognize the identity of transgender persons.

The Jurisdictional Tug-of-War

The proceedings reached an impasse over a preliminary objection raised by the respondents: Should this case be heard by the High Court or the AFT?

The Union of India argued that the AFT is the court of first instance for all service matters and is fully equipped to handle constitutional challenges. The petitioner, however, contended that while the AFT can interpret law, it cannot sit in judgment over the constitutionality of its "parent statute"—the Navy Act—as it is a creature of that very legislation.

Navigating the Legal Landscape

The Bench, comprising Justice C. Hari Shankar and Justice Om Prakash Shukla, analyzed the landmark ruling in L. Chandra Kumar vs. Union of India . While that judgment empowered tribunals to test the validity of laws, it carved out a critical exception: the power to strike down the parent act that creates the tribunal remains exclusively with the constitutional courts.

The legal complexity deepened when considering the Full Bench decision in Neelam Chahar vs. Union of India . While the Neelam Chahar ruling affirmed the AFT's power to assess the vires of subordinate rules, the current Bench noted an ambiguity: does this power extend to testing the validity of primary parliamentary Acts like the Navy Act or the Army Act? Because the AFT is not a tribunal created under Article 323A or 323B of the Constitution, the Bench questioned whether such expansive powers were ever intended by the legislature.

Key Observations

The Court expressed concern over the potential for conflicting interpretations of tribunal authority:

> "The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional."

> "Since a Full Bench of this Court [in Neelam Chahar] has been rendered... we deem it appropriate, in the interests of judicial discipline, to refer these issues to the Hon’ble Full Bench for decision."

> "The AFT cannot be said to be a Tribunal constituted under Article 323A of the Constitution of India. The service disputes of the Armed Forces do not fall within the subjects enumerated in Article 323B either."

The Road Ahead

Rather than delivering a ruling on the sailor's discharge, the Delhi High Court has referred the matter to a Full Bench. The Court tasked the Chief Justice with constituting a larger bench to resolve three pivotal questions: 1. Whether the AFT is competent to adjudicate the vires of statutes like the Navy Act; 2. Whether Neelam Chahar grants the AFT such broad powers; and 3. Whether these powers extend to all tribunals, regardless of their constitutional underpinnings.

The outcome of this referral will likely reshape the landscape of Indian military law, clarifying the boundary between administrative remedies and the High Court’s constitutionally protected power of judicial review. For now, the future of both the petitioner’s case and the broader jurisdictional scope of the AFT remains held in the hands of the upcoming Full Bench.