This article is submitted by:
- Akansha Jain
- Ankita Manchanda
“Equality is a dynamic concept and cannot be restricted to any doctrinal limitation[i]”
The concept of human rights has been overwhelmed by the conversations of social justice at the global level, but its importance and adoption of this language by the local communities remain blurry. It is an acknowledged fact that the mandate of the Indian Constitution is that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. However, the said principle of equality has not been applied to the Transgender Community in India. The religious texts and Hindu Mythology recognised three genders- male, female and transgender, notwithstanding which, the Indian law failed to provide protection to the transgender community. Furthering their ongoing battle with discrimination and fight for their fundamental rights provided under the Indian Constitution. The right to inherit property through succession is one such fundamental right that they lack despite being a citizen of India.
Background & History – Recognition of the Transgender Person in India:
The term “transgender” is derived from two Latin terms, where “trans” means across or beyond, and the term “gender” remains a complex concept.[ii] Section 2(k) of the Transgender Persons (Protection of Rights) Act, 2019 states that a transgender person is an individual whose gender identity conflicts with their assigned gender at birth while recognising their socio-cultural identity with kinners, hijras, aravanis and jogtas.[iii]Globally, they are considered socially, economically, and politically backward classes.
Transgender people have been part of Indian society for centuries. Their historical background “signifies their strong position accorded to them in Hindu mythology, Vedic and Puranic literature, and the prominent role played by them in the royal courts during the Mughal period.”[iv] During the Mughal period in India, transgenders enjoyed their right to acquire and hold property, however, unlike the other genders they lacked the right to inherit property through succession. With the arrival of Britishers in India, their right to a dignified life, property and recognition were abolished. Further, as per the Bombay Rent-Free Estates Act, 1852, transgender persons could not hold or acquire property that was not inherited from blood relations.[v] While in 1868 when the US Constitution was giving equal rights to the property to the US transgender people, the Indian transgender people were declared as the criminal community under the Criminal Tribes Act, 1871, while also being deprived of all civil rights. Therefore, depriving them of their right to a dignified life under Article 21 of the Indian Constitution.
Despite living in the 21st century and with the passing of several bills and judgements, transgender people, based on their class and gender identity, are still being discriminated against, making them one of the most stigmatized, abused, and callously neglected groups in the Indian Society.
This study is centred around the continued denial of equality, and the prolonged indifference and apathy of society towards transgender people who have been marginalized because of their paradoxical gender identity. This paper endeavours to examine the shortcomings and challenges that the Indian transgender community face due to the non-accommodating nature of the existing personal laws in the country that govern their inheritance rights. While the paper analyses the effect of verdicts from certain case laws and a few international laws of transgender rights on state policy, it concludes by providing a perspective for the amendments required in the existing policy in a sui generis manner.
Recognition Of Transgender Inheritance Rights In India:
It is an acknowledged fact that in India everything is intertwined with one’s religion, thereby making it inevitable for the personal laws of the respective religion and community to govern one’s inheritance rights. The laws for inheritance in India are subject to binary gender identity i.e., male and female only. Thereby, side-lining the transgender population from the ambit of the inheritance laws.
The Hindu Succession Act, 1956 recognizes an ‘heir’ to be either a male or a female as a subject matter for the purpose of succession, in the absence of a will.[vi] Despite being violative of Article 15 of the Indian Constitution, the transgender population because of their sexual orientation is often outcasted from their family. Often, they enjoy their right to inherit property only by compromising their gender identity as a transgender person by recognizing themselves with their assigned sex at birth.[vii] The Act also entails provisions regarding grounds for disqualification of a person to inherit the property via intestate or testament, however, an individual recognizing themselves as a transgender person is not a ground for disqualification. Further, these provisions used the term ‘person’ earlier, which as per the definition under the General Clauses Act, 1897 does not restrict itself to recognise only male and female as a ‘person’ but is also inclusive of all genders.[viii] Therefore, the argument claiming the legislature’s intention to only consider male and female as the subject matter for property rights holds no position since gender identity is not a ground for disqualification to inherit property.
Similarly, like the Hindu personal law, Muslims are also governed by their personal law i.e., Sharia Law. The two sects of Muslims, Shias, and Sunnis, both have their separate principles of inheritance. Sharia Law is a gender restricted law wherein only males and females are recognized as subject matters to property rights, the same is reflected under the list of sharers and residuary in Shia and Sunni inheritance laws.
However, unlike the Muslim and Hindu personal laws, the Christian property rights under the Indian Succession Act, 1925 have a broader scope. Section 44 of the Act is inclusive of transgenders as a subject matter to inherit the ancestral property.[ix] Although no such amendment has been made to the existing laws, it remains the only progressive move on the part of the Indian legislature and the society.
The Landmark Judgement & Its After Effects:
Thereafter, in 2014, in the ‘path-breaking judgement of National Legal Service Authority v. Union of India & Others, Supreme Court legally recognised a transgender person’s right to self-identification as male, female or the third gender.[x] Additionally, the term ‘transgender’ was made inclusive of ‘pre-operative, post-operative and non-operative transexuals’ who connote with persons of the opposite sex. The Court further put emphasis on the fact that non-recognition of gender equals to violation of the fundamental rights specified under the Indian Constitution, namely, Article 14 (equality), Article 15 (non-discrimination) and Article 19(1)(a) (expression) and Article 21 (autonomy).[xi] Importantly, the Apex Court does not see Sex Reassignment Surgery (SRS) as a prerequisite to get basic legal rights as that of inheritance.
Though the landmark judgement was indeed celebratory, it failed to mention or interpret a reason to be formed as a precedent to give transgender people ‘equal’ rights with respect to the property. For instance, Section 16 of the Hindu Succession Act enumerates that daughters and sons may inherit their parents’ self-acquired property via succession, but no proviso is given for eunuchs who neither identify themselves as male nor female.[xii] It was only in 2017 when the Rajasthan High Court in a case fairly stated that the Apex Court’s decision was indeed ‘path-finding’ and not ‘path-breaking’. While the courts have been passing judgements in accordance with the NALSA judgement but what really happens by the law enforcement authorities and several employers against the transgender community has been and continues to remain severely excruciating.
One must also acknowledge the fact that the only way transgender people can think about expanding their family is via unconventional means such as adoption and surrogacy. However, the present legislative framework in India defines marriage as a union of ‘a man and woman’ as a pre-requisite for adoption and surrogacy. This is a structural obstruction for transgenders as well as the whole LGBTQIA+ community, to exercise their constitutionally given right to family, which includes the right to bequeath their property to their children under Article 21 of the Constitution.
Issues with The 2019 Bill:
After the landmark judgement in 2014 which paved the way for the enshrining of the rights of transgender people in law, the Court further directed central and state governments to grant legal recognition to transgender persons, address issues of social stigma and discrimination, and provide social welfare schemes for them. Fast-forward to 2016, the Parliament passed a bill to protect the right of the transgender population in India. Several transgender activists and various allied human rights groups critiqued the bill, since the lawmakers failed to consider the concerns raised by them. The bill lapsed and the Transgender Persons (Protection of Rights) Act, 2019 was introduced to replace the 2016 bill. The 2019 Bill recognised their rights at the Central level, addressing issues related to reservation, discrimination, and employment, however, the new law remains inadequate on several other legal fronts. Although the NALSA judgment had specifically noted the widespread discrimination suffered by transgender people due to the binary notion of gendered laws. Both the bills failed to address issues related to the legal approach towards their personal life, they remain silent on civil rights such as marriage, civil partnership, and adoption, as well as rights to succession, inheritance, and property.
Similar to the existing laws in India, the 2019 Bill even after a series of amendments perceives gender identity as binary and not as a spectrum. There exists a tremendous vacuum between what the law aims to achieve when it comes to the rights of a transgender person in India and what is being done. While the transgender community opposed the Bill, Grace Banu, a Dalit transgender rights activist, stated that the 2019 bill was a “murder of gender justice”.[xiii] The fact that the transgender people’s right to marriage seems like the only way, other than the testamentary succession to establish the framework for attaining the privileges of successorship and inheritance, is discriminating towards the whole community. Tragically, even though the right to marriage has been perceived as a basic right, the Hindu and Muslim personal laws necessitating for transgender people to fill in the role of a ‘bridegroom’ or the ‘bride’ i.e., to relate with a gender identity they do not relate with, in order to have a legally valid marriage[xiv], strips them of this essential right as well. Thereby, Banu’s statement is justified when both the personal laws fail to make any efforts for the transgender community to practise their basic right to marry any person willingly, without compromising their gender identity.
International Recognition Of Transgender Rights:
In March 2018, the Pakistani legislation passed the Transgender Persons (Protection of Rights) Act 2018 which reformed the pre-existing laws and gave the LGBTQIA+ community much-needed protection and freedom to a certain extent. It reinstated their fundamental rights inclusive of the right to vote, education, employment, and inheritance. In Pakistan, which is predominantly a Muslim country and where the idea of gender roles is stereotypical, this act was a revolution for the entire queer community. The Hijra community over their lives in isolation and is often disowned by their families. The Census of 2017 of Pakistan stated that there are about 10,000 people belonging to the queer community, but the civil society groups and their statistics suggest that the numbers go up to 5,00,000 which is significant for the country with a population of 21 crores approximately.[xv] The judicial decisions have been relatively in favour of the queer community. In 2012, The Supreme Court allowed transgenders to register themselves for voting and to identify as the ‘third gender’. But again, this ‘allowance’ is the problem one needs to look upon.
First world countries like England, Australia and the United States of America which do have a rich culture and heritage as for the LGBTQUIA+ community, even they have passed bills and made amendments very recently, but the well-fought battle is one being fought in Bangladesh where Prime Minister Sheikh Hasina is holding cabinet meetings to seek laws which are inclusive of the word ‘hijra’ in accordance with the Islamic sharia law and its constitution.[xvi] The thought that arises is that when countries like Pakistan and Bangladesh could seek to revolutionise the rights of transgender people, it becomes even more pressing for India to rethink its strategy of laws regarding them. The International rankings of democratic rights, happiness index, judicial freedom inclusive of transgender rights released by Amnesty International and United Nations[xvii] do not show India in a positive light and thereby, sheds light on the required major reforms.
A Ray of Hope:
Although some progress has been made, various eminent scholars claim that this evolutionary process is a long-term procedure that has started but is still in progress. The 2014 Madras High Court judgement walked on the path paved by the NALSA judgement and stated that forcing a transexual or a transgender person to recognize themselves as either a ‘man’ or a ‘woman’ would be an infringement of one’s fundamental rights. In 2016, the transgender people from the Christian community, for the first time in India were given equal rights as cisgenders over the agricultural property.[xviii]
Furthermore, in the 2019 case of Arunkumar v The Inspector General, a clear distinction was made between ‘sex’ and ‘gender’ wherein ‘sex’ referred to a biological aspect that is determined at the time of birth, while ‘gender’ referred to a state of mind which an individual recognized themselves with.[xix] In August 2020, the state government of Uttar Pradesh amended the Uttar Pradesh Revenue Code, 2006 allowing transgender people succession and physical right to property over ancestral agricultural land.[xx] The nomenclatures in the pre-existing code have now been made inclusive of transgender people rather than being gender binary in nature.
Additionally, the Union government has dedicated a national online portal to the Indian transgender community to use for a ‘simplified identification and certification process’[xxi]while also aiming to provide special homes to the community in order to uplift and maintain them. Living in the 21st century, surely India has made some advancement and as it is rightly said that ‘slow progress is better than no progress.
A Suggestive Conclusion:
Considering the progress made by the legislative authorities in the recent past, there remains a vacuum space within the law that requires to be filled at its earliest. Acknowledging the issues at hand, certain suggestive solutions can be recommended to kick-start the progress further. An introduction of social welfare schemes and actions would help in changing the negative attitude of the public and the legislature. Secondly, to implement the Uniform Civil Code as prescribed under Article 44 of the Constitution[xxii] in order to remove the dichotomy that persists in personal laws. This would enable the discriminatory traits of present inheritance laws to be done away with, in favour of a more egalitarian framework. Another solution can be to address issues of self-identification, personal autonomy, and freedom of self-expression, culminating in the recognition of transgender persons’ right to marry, instead of seeking and reading the laws like Section 5 of the Hindu Marriage Act[xxiii] literally. Lastly, Internationals convention standards for transgender persons’ protection of rights can be adopted and as the aforementioned underdeveloped nations have in the recent past, we must reform our legislature perspectives and recognize their gender identity as is whilst providing them with inheritance rights.
Vox populi is the theme of the 21st century but that voice is not of any use if it does not bring a meaningful and deliberate change in ways that impact people positively. Inheritance for transgender people who have undergone the mentally and physically taxing SRS is a little less difficult than for those who have not as the legal system has deliberated all the steps and has provided a full-grown opportunity to change one’s gender through a documented process. Passing laws, making amendments in the Acts, and giving lawful status to the transgenders might do some good but pragmatically, it is the society that needs to accept that a person’s sex, gender, sexual orientation is not a parameter that should take away one’s certain rights as basic as that of inheritance. Societal progression is a monumental process that would certainly benefit from legislative support. However, these issues do have significant grassroots backing and changing cultural depictions of these problems are bringing an accommodative stance in modern society. In order to be truly representative, we should embrace the coming changes and allow everyone their individual rights.[xxiv]
“The views of the authors are personal“
[i] E. P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555.
[ii] Kashish Makkar, Transgenders: Identity and Position in the Family Law in India, 5(1) NLUJ Law Review 54, 56 (2018).
[iii] Transgender Persons (Protection of Rights) Act, 2019, No. 40.
[iv] Manjeet Kumar Sahu, Case Comment on National Legal services Authority v. Union of India & Ors. (AIR 2014 SC 1863): A Ray of Hope for the LGBT Community, Brics Law Journal, III Brics Law Journal 164, 167 (2016).
[v] Bombay Rent-Free Estates Act 1852, No. 11.
[vi] Hindu Succession Act, 1956, No.30.
[vii] INDIA CONST. art. 15
[viii] The General Clauses Act, 1897, No. 10.
[ix] Indian Succession Act, 1925, No. 39.
[x] National Legal Service Authority v. Union of India, (2014) SC 1863.
[xi] Mayank Mahla, Application of Inheritance Laws on LGBTQ as beneficiaries: A legal analysis, Academia.edu
[xii] supra note 6.
[xiii] Vijayta Lalwani, What ‘s next for transgender people, as India clears a bill that activists call “murder of gender justice”?, QUARTZ INDIA (November 27, 2019), https://qz.com/india/1756897/indias-transgender-rights-bill-disappoints-the-lgbtq-community/
[xiv] Hindu Marriage Act, 1955, No. 25.
[xv] Mubarak Zeb Khan, Census shows over 10,000 transgender population in Pakistan, DAWN (August 26th, 2017) https://www.dawn.com/news/1354039.
[xvi] Transgender people to get inheritance rights in public, DECCAN HERALD (November 15, 2020) https://www.deccanherald.com/international/world-news-politics/transgender-people-to-gain-inheritance-rights-in-bangladesh-915986.html
[xvii] Amnesty welcomes SC’s transgender verdict, BUSINESS STANDARDS (April 16, 2014) https://www.business-standard.com/article/current-affairs/amnesty-welcomes-sc-s-transgender-verdict-114041600205_1.html
[xviii] Maria Akram, Christian transgenders to have equal right on ancestral property, THE HINDU, May 12, 2016 https://www.thehindu.com/news/cities/Delhi/christian-transgenders-to-have-equal-right-on-ancestral-property/article8587686.ece
[xix] Arunkumar & Another v The Inspector General of Registration and Ors., W.P (MD) NO. 4125 OF 2019 & W.M.P. (MD) NO. 3220 OF 2019.
[xx] UP: Yogi Govt Amends Law to empower transgender community with right to inheritance of ancestral agricultural land, SWARAJYA (August 20, 2020) https://swarajyamag.com/insta/yogi-govt-amends-law-to-empower-transgender-community-with-right-to-inheritance-of-ancestral-agricultural-land
[xxi] supra note 18.
[xxii] INDIA CONST. art. 44
[xxiii] supra note 14.