By Saksham Jain
The history of transgenders in India is ancient. Vedic culture, Santana Dharma, Jainism, and Buddhism all not only recognized but gave sanctity and respect to the trans community in Ancient India. The trans community is referred to and discussed in Ancient Indian Law, Medicine, Folklore, Classics, Astrology, etc. The Kamasutra which was written during the Gupta Dynasty too mentions the community. During the medieval era also, transgenders held high positions in the royal courts as musicians, dancers, artists, political advisors, and close confidants of the monarch. [i]
The trans community had a high position in the Islamic society which is shown by Shaun Marmon in her book, Eunuchs and the Sacred Boundaries in Islam. During Mughal rule in India, the Transgenders held a great deal of influence and were very affluent and respected. [ii]
However, the queerness of India was stripped by Victorian ideals of morality based on the belief so-called supreme culture has been imposed on the uncivilized. India’s liberal and queer-friendly being were seen as a satanic thing by the imperialists. The trans community which had the status of being sacred in the subcontinent was now criminalized and subsequently made bereft of their high status and affluence. Legislations like the Criminal Tribes Act, Bombay Rent Control Act, and sections like 377 in the IPC took even the human existence of the community once considered demigods. [iii]
The purpose for this paper is to see the historical perspective of trans rights, to argue against and highlight the systematic discrimination faced by the trans community in the secular democratic republic called India, whose Constitution guarantees equality to all. The main area of highlight will be the succession rights of the transgender community in India and how the lack of it is in contravention with the judgments of the Supreme Court and the most fundamental principles which form the bedrock of the constitutional spirit of the world’s lengthiest constitution adopted by the sovereign republic of India.
India is the home to the world’s oldest ethnic trans community, the Hijras but as paradoxical as it may sound, they are only 7 years old in the republic of India [iv] Keeping this fact in mind the whole essay will revolve around arguing why the present personal laws are now in contravention to this legal reality and the references made to the rich past of the community is to substantiate and legitimize the argument as the custom is a big part of the different personal laws in this country.
Who is a transgender?
According to the WHO
Transgender is an umbrella term that describes a diverse group of people whose internal sense of gender is different than that which they were assigned at birth. Transgender refers to gender identity and gender expression and has nothing to do with sexual orientation. The term is increasing in familiarity globally, although other culturally specific terms may be used to describe people who have non-binary gender identities.[v]
As interpreted in NALSA VS Union of India
Transgender is generally described as an umbrella term for persons whose gender identity, gender expression, or behaviour does not conform to their biological sex. TG may also take in persons who do not identify with their sex assigned at birth, which include Hijras/Eunuchs who, in this writ petition, describe themselves as “third gender” and they do not identify as either male or female. Hijras are not men by anatomy appearance and psychology. The term “transgender”, in contemporary usage, has become an umbrella term that is used to describe a wide range of identities and experiences, including but not limited to pre-operative, post-operative, and non-operative transsexual people, who strongly identify with the gender opposite to their biological sex; male and female.[vi]
The definition provided by the bill
Definition of a transgender person: The Bill defines a transgender person as one whose gender does not match the gender assigned at birth. It includes trans-men and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as linear and hijra. Intersex variations are defined to mean a person who at birth shows variation in his or her primary sexual characteristics, external genitalia, chromosomes, or hormones from the normative standard of the male or female body.[vii]
Transgender Person (Protection of Rights Bill) 2019 [viii]
Since, the present law of the land is the Transgender Protection of Rights Bill, 2019, it becomes imperative to discuss it.
- The bill is progressive in the sense that it acknowledges the right to self -identification but it goes a millennium backward when it gives unquestioned power without any accountability to the district magistrate to issue the certificate of identity to the certify a person as transgender.
- The bill has many flaws like mandating the trans person to reside with their parents, and not acknowledging the traditional Gharana system which has survived the legal, social, economic, and cultural onslaught for more than a century
- Disregards the traditional sources of occupation of the ethnic trans community in the country while not providing enough means of rehabilitation.
- Keeping the criminal liability for crimes against trans people absurdly low without any justification whatsoever and at the same time infringing the basic constitutional principles and violation of fundamental rights. To exemplify the punishment for raping a cisgender heterosexual woman [ix]the Criminal law provides the punishment starting from the lower limit of 7 years to life imprisonment or even the death penalty depending on the gravity while the punishment for raping a trans woman the punishments starts from the minimum of 6 months to 2 years.[x]
- The bill goes wrong in identifying the basic difference between biological sex that is intersex and gender identity that is transgender. This not only undermines the rights of intersex people but also trans people which this legislation claims to protect.
- The bill provides absolutely no provision for the trans community which is a historically marginalized community that was legally outlawed and economically deprived systematically. Moreover, the bill provides absolutely no procedure regarding marriage, adoption, and succession and maintains an eerie silence when it comes to personal laws.
THE STORY OF PERSONAL LAWS
India, as a country, does not have a uniform civil code governing the personal laws which include marriage, adoption, and succession. Different religious laws govern this matter based on their interpretation of the religion. The Hindu succession act governs Hindus, Sikhs, Jains, and Buddhists whereas apart from the special marriage act, Christians, Muslims, and Parsis have separate laws. Apart from the regressive ideals, patriarchy, and misogyny that are evident in these legislations binary are they things that are seen with absolute uniformity in all the personal laws in India? The very definition of a binary is the exclusion of the trans experience which is very strange as in Hinduism and even in Islam, the third gender is held in high regard. The personal laws aren’t based on the religious texts in toto. The exclusion of the trans experience in these laws is due to the anglicized version of their interpretation as the Victorian ideals of morality are dipped in the batter of these religious texts and served as the personal laws. Indian history in the ancient times from which all the texts considered Hindu law come from was clearly trans accepting so much so that the Hijras were thought to be blessed with the divine power. In Islam, the Khawaja Sarai [the transgender] was given a unique status and were considered close to Allah so much so that they were the protectors of Mecca and had the sole privilege to light the lamps of the divine.
Even if the political history of India is to be taken into consideration, then it comes out very distinctly that transgenders were the patron, performer, and protector of arts. They held high ministerial positions and had considerable wealth. They even had husbands and adopted children which isn’t a phenomenon seen in a democratic India with civil liberties. However, it is to be acknowledged that these were true for the trans women and not transmen and the single most prominent example from Indian history is that of Shikhandi from the epic Mahabharat.[xi] If these things are compared to the present scenario, then the suicide rate in the trans community is 2 times more than the rest of queer community and 4 times more than the heterosexual cisgender, and only 1 percent of the trans people stay with their family and their literacy rate is only 57 .06 %. [xii]
The exclusion of the transgender community from family laws and specifically the inheritance and succession laws coupled with legal, social and cultural indifference has a huge role to play in it.
Amidst this systematic discrimination, the government’s response to the community isn’t a story to celebrate. However, in 2011, transgenders were included in the Census and in 2012, the National Legal Services Authority after multiple requests filed a petition in the Supreme Court. It became the famous case called NALSA V UOI. The two-judge bench decision was historical in many regards as –
- Defined transgenders and held that they were citizens of India and had equal rights as enjoyed by CIS gendered heterosexual people.
- It prohibited discrimination based on Articles 15 and 16 of the Constitution and expanded the definition of sex under the constitution and said that the constitution is a neutral document.
- Acknowledged the systematic discrimination against the trans community and
- It remains the only central authority to date to acknowledge civil rights of the community like property.
However, it by no means was a perfect judgment and had major flaws. It wasn’t able to acknowledge the difference between sex and gender identity. It had the presumption that trans people have a biological dysfunction in genitals. The inherent lack of clarity and vagueness in the judgment has failed to establish a clear set of laws that is settled on the issue thereby hampering trans rights as a result. [xiii]
The present law in India conforms to the heteronormative binary so if the transgender people want to get their rights, they have to conform to these binaries which chucks out the people who distinctly identify as the third gender. [xiv] The Madurai bench of Madras high court in the case of Arun Kumar v Inspector general of registration and Others ruled that a transwoman is a woman under section 5 of the Hindu Marriage Act. [xv]
Since the main topic of interest of this paper is to analyse the inheritance laws in India. The different laws governing are discussed in brief.
Hindu Succession Act
This Act does not take into consideration the right of trans persons to inherit which is made prima facie clear by the definition clause defining heirs, agnates, and cognates.
“Agnate”—one person is said to be an “agnate” of another if the two are related by blood or adoption wholly through males;[xvi]
“Heir” – means any person, male or female, who is entitled to succeed to the property of an intestate under this Act[xviii]
Apart from being very gendered and misogynist which is seen by the privileged treatment of Cis gender males, this act is also silent on whether a trans person who identifies as a male or woman is covered under it. Even if it does make room for people who will conform to the binary, it does not guarantee a fair play as was seen in the Ajay Mafatlal case in which the court saw the change in identity as merely a means to inherit property [xix]
Muslim Personal Law
Islamic law in India is largely uncodified and is based on the verses from the Quran, customary practices, and classical Islamic jurisprudence. However, they have undergone anglicization as they were subjected to colonial interferences. They are very different in the sense that at one point the right to inherit will be equal while at the other the males will receive preferential treatment. However, the Muslim Personal Law (Shariat Application), 1937 states that Muslim personal law should apply to all Muslims, with certain exceptions, including personal property of females inherited or obtained under contract, gift, marriage, or dissolution of marriage. However, there is little assistance, on whether a transgender person will be accorded the differential protection under the Act in inheritance cases, etc., or if they would be subject to personal law.[xx]
Silence on this matter can’t be construed as a liberal attitude as here it’s exclusionary to the whole trans experience and the personal law board has never touched this topic.
Indian Succession Act
The Indian Succession Act governs all those who are not Hindu, Muslim, Jain, Buddhist, or Sikh which means it applies to Parsis, Christians, and Atheists. Prima Facie appears to be gender neutral as it uses the terms such as kindred and lineal descendants. In the case of Interstate succession, there is no such discrimination between the children. However, with this being said, the Act falls short of being truly gender-neutral like in the case of Christian inheritance there is a clear tilt towards the deceased father and the mother is at a disadvantage. And this legislation isn’t truly free from the binaries and the lack of clarity and uniformity, along with the silence, do not confer a direct right to the trans community. However, in 2016 the Delhi Minorities Commission approached the Law Commission to include the trans community specifically as there is a very great deal of scope if compared to other legislations.[xxi]
Apart from the overt or subtle exclusion in these legislations realizing the property rights of trans persons is much more difficult. The lack of documentation, economic agency, and right to marry and adopt combined with social ostracization and governmental indifference makes this legal discrimination more vivid. To quote an example In NALSA v Union of India, the Supreme Court held that gender identity is based on self-determination. But a survey conducted by the Kerala government found that 76% of transgender persons could not register their perceived gender identities. 81% wished to change their gender identity but had no support system. [xxii]
The state laws
After, the NALSA judgment many states in India came up with legislation providing civil rights and protections to the trans community. Transfer of property is a subject that is a concurrent list matter which means that the Trans protection of rights bill isn’t the only law governing the rights of the community. The state which stands out as the only state conferring property rights to the transgender community is Uttar Pradesh. Agricultural land is an exclusive domain of the state, the UP government introduced a bill to confer inheritance rights on agricultural land to the people of the trans community[xxiii]. Madhya Pradesh, Tamil Nadu, Odisha, Kerala, and Karnataka came up with trans policies to secure a wide array of civil rights. Though the latter is not binding legislation, they reflect the perspective of the governments. However, apart from Uttar Pradesh and Madhya Pradesh, none of the laws change or address the right to transfer or receive property, and in Madhya Pradesh, none of the changes address the right to transfer or receive property, or inheritance.[xxiv]
However, most of the policies are not binding but visions and even those giving some property rights only confer limited or inheritance rights like that of Madhya Pradesh which doesn’t address property rights and only limits itself to the scope of renting. All these legislations are also silent on how under the current law these policies will be implemented.
The case laws
The clear ostracization of the community can be seen by the dearth of legal rights present and minimalistic litigation despite their violation of them. There have only been 2 cases concerning transgenders’ right to inherit property and both are from different high courts.
ILLIAS V BADSHAH ALIAS KAMLA, 1980
The Madhya Pradesh High Court ruled that since the appellant and the respondent were from the Islamic faith, the guru could not bequeath more than 1/3 of the property as a gift and the remaining 2/3 has to go to the chela. It was a recognition of sorts to the Gharana system which is not acknowledged in the trans bill of 2019.[xxv]
SWEETY vs GENERAL PUBLIC
The Himachal Pradesh High Court ruled that the guru was the legal successor of the property of the deceased chela. It based its ruling on NALSA but didn’t care to show a basic amount of sensitivity while delivering the judgment and used the word “Eunuch” more like a cuss word than a pronoun. The astonishing fact was that the lower court had by default taken the parties as Hindus based on which it denied the right which the high court restored. [xxvi]
Trans rights are a necessary and wide subject to deal with but if India as a country and society has to achieve its principles of equality, dignity, and brotherhood which are constitutionally guaranteed, the government has to consider constitutional morality as the only basis and not other moralities of discrimination. Despite the brilliant Constitution supported by a plethora of rich history complimenting the constitutional vision, trans rights are seldom a reality. The most marginalized of India’s minority don’t need the government’s sympathy and courts patronizing benevolence but demand equal rights guaranteed to every citizen of this country. The sheer amount of negligence in gender sensitivity and understanding of gender, biological sex, sexuality, and even biology of the Indian judiciary is alarming. The legislature’s act of bulldozing trans rights in the façade of providing them makes one question the sensitivity of Parliament, which is the central wheel of Indian democracy. If it wants to walk on the path of progress, then constitutional morality coupled with sensitivity is the only road to tread on. Otherwise, it will spell doom for the constitutional principles and the citizens who are governed by a Constitution that claims to be the protector of rights of the weak against the high and the mighty.
Saksham Jain is a second year student of law at The West Bengal National Law University of Juridical Sciences, Kolkata.
[i] The statements are based on the case study published in the Harvard’s Divinity school titled as the third gender and Hijras. The link to the study is https://rpl.hds.harvard.edu/religion-context/case-studies/gender/third-gender-and-hijras
[ii] The source is https://indianexpress.com/article/research/eunuch-security-guards-bihar-mughal-empire-history-5266102/
[iii] Source: https://www.bbc.com/news/world-asia-india-48442934
[iv] Transgenders were only recognized in India in 2014 when the apex court delivered NALSA V UOI judgement.
[v] This definition is provided by WHO Europe. The link to the source is https://www.euro.who.int/en/health-topics/health-determinants/gender/gender-definitions/whoeurope-brief-transgender-health-in-the-context-of-icd-11
[vi] This is the definition given under para 11 of the judgement, NALSA VS UOI.
[vii] This is the definition of the transgender person according to the bill and is taken from https://prsindia.org/billtrack/the-transgender-persons-protection-of-rights-bill-2019
[viii] The source of information for this subtopic is https://www.thehindu.com/news/national/why-are-there-objections-to-the-transgender-persons-bill/article30125894.ece , https://www.downtoearth.org.in/blog/governance/why-is-transgender-community-unhappy-with-trans-persons-bill–67158 and https://thewire.in/lgbtqia/trans-rights-bill
[x] The source is https://www.thehindu.com/news/national/what-are-the-laws-on-rape-and-sexual-crimes/article30233033.ece
[xi] The source is Historical Evolution of Transgender Community in India by M. Michelraj , ISSN: 2249-6319 Vol. 4 No. 1, 2015, pp. 17-19 published by Asian Review of Social Sciences
[xii] The sources are https://thewire.in/lgbtqia/cbse-results-transgender-students-education-stigma-discrimination , https://www.thehindu.com/news/cities/chennai/suicides-among-transgenders-underreported/article3566545.ece
[xiii] The source of the information is ‘Inheritance rights of transgender persons in India’ No. 350published on 26-August-2021by Karan Gulati and Tushar Anand published in NIPFP Working Paper Series.
[xiv]“RECOGNIZING THE RIGHT OF THE THIRD GENDER TO MARRIAGE AND INHERITANCE UNDER HINDU PERSONAL LAW IN INDIA” BRICS LAW JOURNAL Volume III (2016) Issue 3 by DIPAYAN CHOWDHURY and ATMAJA TRIPATHY DOI: 10.21684/2412-2343-2016-3-3-43-60
[xv] Source is Arun Kumar vs The Inspector General Of … on 22 April, 2019 from https://indiankanoon.org/doc/188806075/
[xvi] Taken from the Hindu Succession Act published in the online gazette link to which is https://egazette.nic.in/WriteReadData/1956/E-2173-1956-0038-99150.pdf
[xix] [xix] The source of the information is ‘Inheritance rights of transgender persons in India’ No. 350published on 26-August-2021by Karan Gulati and Tushar Anand published in NIPFP Working Paper Series.
[xxvi] Ibid and https://www.ijlmh.com/paper/case-comment-on-sweety-eunuch-vs-general-public-2016/