HC seeks Defence Ministry’s stand on transgender Navy officer’s dismissal by AFT

The Delhi High Court has sought the Defence Ministry’s stand on whether the Armed Forces Tribunal (AFT) can examine the constitutional validity of laws beyond the Armed Forces Tribunal Act, 2007, while hearing the plea of a transgender Navy officer who challenged her discharge from service after undergoing sex reassignment surgery.

A Full Bench comprising Chief Justice Devendra Kumar Upadhyaya and Justices C Hari Shankar and Om Prakash Shukla said the issue carried wide implications for personnel across the Army, Navy and Air Force, and directed that the ministry’s position be placed before the court by its top officer.

“We clarify that since this matter may have an impact over the personnel of all the Armed Forces, we provide that the instructions in the matter shall be provided to learned counsel for the respondents by none other than the Secretary, Ministry of Defence, Government of India or any other high-ranked officer nominated by him for the said purpose,” the Bench said.

The matter will next be heard on November 28.

The case was referred to the Full Bench by a Division Bench to decide three key questions — whether the AFT can adjudicate on the vires of statutory provisions other than its parent Act, such as Section 9 of the Navy Act; whether the decision in Neelam Chahar empowers the Tribunal to rule on the validity of other legislations; and if such an interpretation extends to all tribunals not created under Articles 323A and 323B of the Constitution.

The reference arose from a petition filed by a former Indian Navy officer who began identifying as female during service and underwent sex reassignment surgery. She alleged that once the Navy learnt of her surgery, she was unlawfully confined to a psychiatric ward for five months and subjected to repeated medical examinations.

The Centre, however, maintained that she was removed on grounds of misconduct, alleging that she was found with “long hair, nail polish and trimmed eyebrows” and had undergone gender reassignment surgery without