(This opinion piece has been reposted from The Quint’s archives in light of the Delhi High Court hearing the case of sailor Sabi Giri, who was sacked by the Indian Navy for undergoing a sex change surgery. On 31 October, the Delhi HC asked the Navy to consider giving an alternate job to the sailor, and posted the matter for further hearing on 23 November. This is the counter-view. You may like to read the view by C Uday Bhaskar here)
The decision of the Indian Navy to discharge Sabi – nee Manish Giri – from service for having undergone a gender assignment surgery smacks of pure prejudice. This is not only contrary to the navy’s rules and regulations, but also entirely unconstitutional.
Interpretation of Navy’s Rules Won’t Stand Legal Scrutiny
From the statements made in public, it is apparent that Sabi has been discharged from the navy on the grounds of “service no longer required.”
This is a technical term which is a ground for discharge across the armed forces, and in the specific context of the navy is governed by Regulation 279 of the Regulations for the Navy. Service personnel in the navy may be discharged under this regulation for one of three reasons:
a) Being surplus to requirement
b) Retention being against the interests of the navy (usually for some misconduct that falls just short of something that requires dismissal)
c) An adverse report being submitted in the context of post-enrollment verification.
The statement by the navy suggests that Sabi has been discharged on ground for “wilfully altering [her] gender status from the one [she] was recruited for at the time of [her] induction.”
Even assuming that the procedural requirements of Regulation 279 have been followed, this is an absurd ground to discharge someone for changing her gender identity.
The eligibility requirements for a position in the navy do indicate gender, citizenship, age, et al, and these are verified post recruitment. If any of these are found wrong at the time of recruitment, it would be within the navy’s power to discharge such personnel. However, it would be absurd to suggest that if any of these (except citizenship) were to change at a later time, that would also be a ground for discharge.
The interpretation of Regulation 279 being relied upon by the navy to discharge Sabi is simply unsupported by any known canons of interpretation and is unlikely to withstand judicial scrutiny.
Breach of Fundamental Rights
Although Article 33 allows Parliament to limit what fundamental rights can be claimed by persons serving in the armed forces, it is by no means a carte blanche to exclude every single fundamental right from applying to armed forces personnel.
Most importantly, it is also not a ground for the armed forces to claim that all sorts of arbitrary, unequal, and unfair actions are protected under the Constitution.
The Delhi High Court struck down the army and air force’s policy on Permanent Commissions which discriminated between men and women officers on precisely such reasoning.
Holding that a policy which did not allow permanent commission to women officers treated men and women officers who were otherwise equal in every respect, unequally and therefore violates Articles 14, 16 and 21 of the Constitution. This was extended to women officers in the navy by the Delhi High Court in 2015 (though parts of the order were subsequently stayed by the Supreme Court).
Does being a woman have any impediment to doing the job that Sabi does in the navy? There’s nothing that has been put on record on this front. Especially since she was posted to the administrative wing though she had been initially hired in the engineering wing.
Keeping Surgery Under Wraps is Justified
Under the NALSA judgment of the Supreme Court of India, a transgender person has the right to choose and be identified with her gender identity. To use the exercise of this right as a basis to discharge someone from the armed forces is a blatant violation of Article 14, especially when there is no express prohibition in the Navy Act regarding gender re-assignment.
There has been little rational explanation (except the absurd reasoning provided) as to why a change in gender should result in a discharge. One can understand if a service-person gives up Indian citizenship being a basis for discharge, but why should change of gender, especially since women already serve in the navy, be a ground for such discharge?
The report suggests that the grouse of the navy may have been her keeping the gender re-assignment surgery secret, but given the transphobia exhibited by the authorities since, it may not have been unjustified.
Dealing with Fairness and Ensuring Justice
It is, in fact, in the interest of the armed forces themselves to ensure such fairness and equality in treatment. This was best put by Justice Gita Mittal of the Delhi High Court in Sepoy Durga Prasad v Union of India.
Discipline is highly desirable and is essential for achieving the purpose for which armed forces have been created and set up. However, in order to obtain discipline and obedience, it is essential that the personnel of the armed forces are dealt with an innate fairness and justice is meted out to the members of the force. This is necessary to not only ensure discipline but to motivate these brave soldiers who perform their duties in the service of the nation who have to be motivated to lay down their lives to the cause of the nation. When guidelines have been laid down and procedures prescribed, they should be applied to the letter lest the same shall result in demoralisation in the lines and ranks of the forces which may lead to insubordination and indiscipline...Justice Gita Mittal
On the face of it, the navy’s treatment of Sabi is discrimination only on the basis of gender, prohibited under Article 15, and should be struck down. Perhaps the Indian Navy should pause to reflect why it its moral compass on this issue points in the same direction as that of Donald Trump’s.
(With inputs from: Hindustan Times)
(Alok Prasanna Kumar is an advocate based in Bengaluru and can be reached @alokpi. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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