ABSTRACT
The paper highlights the property as well as the inheritance rights of the transgender community of India. Transgender people have been a part of Hindu mythology since time immemorial. They have been an essential part of the Ramayana and the Mahabharata. In India, the legal system is supreme, and everybody is treated equally under the law. Even though the law was accepted the LGBT community as the third gender, society still fails to abide by the law. Many laws and Acts have been passed by the government, though they still fail to address many issues, one of which includes the rights of transgender to inherit the property as successor. The 2019 Bill, like existing Indian laws, considers gender identification as binary rather than a spectrum, despite several changes. The paper also draws attention to how other countries have focused on this issue and addressed it. The report also highlights the need to bring in the reforms.
“There isn’t a trans moment… It’s just a presence where there was an absence. We deserve so much more[1].”
~ Hari Nef, The New Yorker, 2016.
INTRODUCTION
Transgender is a phrase used to refer to persons whose sexuality, sexual identity, or behaviors differ from the gender they have been given at birth. Sexual orientations refer to the inner sense that a person is male, female, or other, and gender refers to how an individual communicates a person’s identity with another person through behavior and attitude, attire, hairdos, utterance, and physical attributes. “Trans” is a common abbreviation of “transperson.”
India has been one of the world’s most ethnically and religiously diverse countries. It has a rich history of its own, embodying the norms and utilizations of the time, and the exciting aspect is that those practices and rituals are still practiced in the twenty-first century. For generations, transgender people have been an integral part of Indian society. In ancient India’s early literature, verifiable events of acknowledgment of “third sex” or those who could not be classified as men or women.
According to NCTE (NCTE, 2009), Transsexuality accounts for between 1/4 and 1% of the population.[2]. In various parts of the world, they are referred to as lady children, Katoey, or whakawahine. Certain civilizations, such as the Hijra of northern India (Poole et al., 2002), are more modern. Transgender person research is the most recent academic topic of research to emerge from the exciting junction of queer theory, gender studies, and the background of sexuality.
The notion of “tritiyaprakriti” or “napumsaka” is found in Indian mythology, folklore, sagas, and ancient Vedic, as well as Puranic writings. The name “napumsaka” was used to describe the lack of procreative potential, evidenced by the absence of masculine and female characteristics.
EVOLUTION OF TRANSGENDER COMMUNITY IN INDIA
There are over two million transgender persons in India. Hijra is a terminology used in India to allude to transgender people, transvestites, cross-dressers, and transsexuals. Activist groups claim they live on the outskirts of society, are frequently in poverty, and are marginalized due to their gender identity. The majority of them make a living through sing-alongs, soliciting, and prostitution.
Figures from the Hijra play crucial parts in Hinduism’s most famous books, such as the Mahabharata and the Ramayana. Shiva, a primary Hindu divinity, takes on numerous forms, including combining with his wife, Parvati, to create the ambiguous Ardhanari, who is revered by many in the Hijra community. During the Mughal era in India, from the 16th to the 19th century, Hijras held vital positions in the Court and many aspects of governance. They were also seen as religious leaders who have been looked out for blessings, especially during religious rites.[3]
However, in Indian law, transgender people, particularly Hijras, are acknowledged as a third gender. Even though the LGBT community faces major legal hurdles and that same-sex sexual contacts are illegal in the country, this is the case. While the Hijra community is still adored by the broader public and honored during religious or spiritual events, they are regularly the victims of violence and bigotry. Discrimination in housing and other areas and racism and hate crimes against the community are all too widespread. The government has tried to address this by enacting legislation to protect transgender persons, including prison sentences and other punishments for those who break the law.
While drafting the Indian Constitution, the founders envisioned a future India to foster a society free of discrimination based on ethnicity, language, race, sex, territory, and other factors. They envisioned India’s future as free of caste, religious, gender, regional, and other inequities, with an egalitarian society in place. To claim that perhaps the Constitution of India purports to give each citizen equal opportunities and rights.
ACCEPTANCE AS THIRD GENDER
In India, the law system reigns supreme, and everyone is treated equally in the legal sense. However, the transgender community is constantly at odds with discrimination, abuse, and prejudice from all corners, whether from their relatives or the general public. Transgender people’s lives are a daily struggle because they are not acknowledged anywhere and are alienated from society and mocked.
Nevertheless, the Supreme Court of India accepted the third gender alongside the male and female in National Legal Services Authority v. Union of India & Ors.[4] .by a division bench of Justices K.S. Radhakrishnan with A.K. Sikri. The Court has demolished society’s binary gender framework of ‘man’ and ‘woman’ by recognizing various gender identities.
Articles 14 and 21 of the Indian Constitution guarantee the rights of equality before the law and equal protection under the law. The freedom to choose one’s gender identification is an essential aspect of living a dignified life, and it is covered under Article 21. “The gender to which a person belongs is to be determined by the person concerned,”[5] The Court said in determining the right to personal freedom and self-determination. According to the Supreme Court, the Indian people now have the right to choose their gender identity.
In its final verdict, the Supreme Court decided that transgender people, in addition to a binary gender, shall be considered “third gender” to protect their privileges under Part III of the Indian Constitution and laws enacted by the national parliaments. The Court also ordered the state government to implement their third sexual identity as legal. The government was also instructed by the Hon’ble highest Court to reduce social stigma, encourage particular health programs, and provide equal protection to transgender people.
PROPERTY RIGHTS OF TRANSGENDER PEOPLE IN INDIA
All land rules must be enforced on the transgender community as they would to anyone else. They should be fairly treated, with respect, and without prejudice. They ought not to be prejudiced against applying for jobs, going to public places, owning property, or seeking justice. Civil rights, such as the ability to obtain a passport or ration card, write a will, transfer property, and adopt children, must be open to all regardless of gender/sexual identities.
Despite having a third gender identity, Trans persons are marginalized by society. These groups have noticed that they cannot participate fully in social and cultural customs, governance, and decision-making processes. The rationale for these assessments by Trans persons is that they are not accepted into mainstream society, and their third gender status is not recognized. It is a significant stumbling block that frequently hinders individuals from fulfilling fundamental rights. The Transgender Persons (Protection of Rights) Act of 2019 [6]is a piece of legislation that protects transgender people’s rights. The rights of Trans individuals are fully specified in this Act that includes the right of residency, which provides that every transgender individual has the right to live and be integrated into their community without prejudice. If the transgender person’s parents and siblings cannot care for him, a competent authority will order that he be committed to a rehabilitation institution. This section provides a haven for trans persons. However, the Act mentions trans people’s inheritance rights.
Trans individuals are not considered coparceners or descendants of their father in a Hindu joint household. They can live with a family, but they are not included in the inheritance procedure. The Act requires numerous revisions and amendments because transgender individuals are Indian citizens who all laws should acknowledge as legal and human status as a third gender.
Since society is unwilling to embrace trans persons as respected human beings, discrimination continues even when they are recognized as the third gender. The third gender is not mentioned in the Hindu succession laws. It clearly defines who is a Hindu, what a Hindu is made up. The statute established a comprehensive and consistent inheritance system, but it was limited to genders, with no third gender. Transgender people and their right to possess ancestral property are not included in the Act. The Act specifies a man’s and a woman’s rights to inherit property. Every legislation and law should indeed be revised to take into account the third gender. Every field, including school, corporate positions, politics, marriage, adoption, and inheritance, should have equal rights and chances.
NEED TO REFORM INHERITANCE RIGHTS OF TRANSGENDER PEOPLE: PRESSING PRIORITY.
In general, Indian law recognizes only the binary sexes of male and female, based on a person’s sex assigned at birth, including marriage, adoption, inheritance, succession, etc. Due to the lack of acknowledgment of Hijras/Transgender identification under numerous laws, they are denied equal protection and face widespread discrimination.
The majority of property in India is inherited, particularly in rural regions. The inability of transgender people to inherit property is due to three factors:
- Only two sexes are defined under inheritance laws: male and female.
- Finding a successor is difficult.
- Personal laws of a particular religion and society control property inheritance.
The Hindu Succession Act of 1956[7] is a statute that governs Hindu intestate succession. Hindus, Jains, & Sikhs are all subject to it. The Act, but on the other hand, does not indicate transgender people and requires male or female heirs. The majority of Muslim inheritance law, on the other hand, is founded on Quranic ideas or traditions. In India, Muslim property law is not legislated, and all Muslims inherit according to Shariat Law. However, neither the Hindu Succession Act nor the Muslim Property Law emphasizes trans people’s rights to obtain property. However, the Christian property rights under the Indian Succession Act, 1925 have a greater reach than the Muslim and Hindu personal laws. Transgender is included as a subject for inheriting ancestral property under Section 44 of the Act.[8] Despite the fact that no such adjustment to the current legislation has been made, it remains the lone progressive move done by the Indian legislative and society.
In 2005, Ajay Mafatlal pursued sex reassignment surgery to become a male to receive an equal share of the land under Hindu inheritance law. This incident prompted a debate in India over whether transgender individuals should be granted institutional legitimacy. As a result, for the first time in 2011, the national census allowed respondents to choose ‘others’ as their gender designation.
LOOPHOLES IN THE 2019 BILL
Following a landmark ruling in 2014 that paved the way for transgender people’s rights to be enshrined in law, the Supreme Court directed both the state and federal governments to grant legal recognition to trans individuals, recognize issues of social stigmatization, and provide social welfare schemes for them. In 2016, the Indian Parliament passed a bill to protect the rights of India’s transgender community. After the 2016 bill expired, the Transgender Persons (Protection of Rights) Act, 2019, was presented to replace it.
Even after several modifications, the 2019 Bill, like existing Indian laws, views gender identification as binary rather than a spectrum. When it concerns the liberties of transgender people in India, there is a considerable gap between how the law wants to achieve and what is done. The fact that transgender people’s right to marry appears to be the sole means, other than wardship succession, to construct the foundation for obtaining successorship and inheritance benefits is discriminatory toward the entire community. Sadly, even though the entitlement to marriage is widely regarded as a fundamental right, Hindu, as well as Muslim personal laws, require transgender people to play the role of ‘bridegroom’ or ‘bride,’ i.e., to relate to a gender identity with which they do not identify. In good enough condition to have a legally acceptable marriage, deprive them of this fundamental right.
SUGGESTIONS
Despite significant progress, many notable scholars believe that this iterative change is a long-term process that has begun but is still ongoing. The Indian government has dedicated a nationwide internet portal to the transgender population in India, which will be used for a “simplified identification and certification process” and unique residences to uplift and preserve the community. Living in the twenty-first century, India has undoubtedly made progress, and as the saying goes, “slow development is preferable to no progress.”
When we look around the world, we can come across certain countries that have focused on the inheritance rights of transgender people. Some of India’s neighboring countries, such as Bangladesh and Pakistan, have formulated laws for protecting the rights of property of trans people.
The Bangladesh state chose in November 2020 to draught laws following Islamic Sharia law to protect transgender people’s property rights. Transgender people are currently prohibited from inheriting from their relatives’ estates. In 2013, the government granted 1.5 million transgender people in the country to identify as a different gender. However, the Bill to give them inheritance rights has yet to be introduced in Parliament, but it is expected to pass the legislative body without difficulty once debated.
Whereas, The Transgender Persons (Protection of Rights) Act[9] was enacted by Pakistan’s Parliament on May 8, 2018, allowing residents to self-identify as males, females, or a mix of both genders. In addition to the recognized fundamental rights, Pakistani law allows Trans genders the option to inherit, which is often challenged under some interpretations of Islamic law and the right to property, schooling, and health.
Transgender people encounter various issues, including social marginalization, prejudice, a lack of educational opportunities, and unemployment. According to Article 1 of the Universal Declaration of Human Rights (UDHR), all human beings are born and equal in dignity and rights.
The International Covenants on Civil and Political Rights (ICCPR) recognize that legal rights of any citizen should be denied. The Yogyakarta Principles on the Application of International Human Rights Laws acknowledge that transgender people have the right to education, work, and property, among other things. Guideline 3A of the Yogyakarta Principles allows states to grant transgender people succession rights, including the right to acquire property through inheritance, without discriminating based on sexual orientation.[10]
Besides inheritance laws that do not include transgender people, the federal property rights regime also poses several difficulties. Transgender people may lack documents, be unable to marry, or verify adoption, making it challenging to identify successors. These are obstacles in and of themselves, but they also impact transgender people’s inheritance rights by denying them the protections that citizens enjoy.
In Ram Krishna Dalmia v Justice SR Tendolkar[11]Das CJ argued on behalf of the Court that even a single person could form a class and be entitled to constitutional protection. 166 The notion that the law can be understood to protect transgender people’s inheritance rights is significant. However, they should be given more protection as long as they cannot exercise their rights and confront specific problems. As we’ve seen, inheritance rules are founded on a binary gender concept. They are at war with the culture they govern because they do not envision transgender people or perhaps a transformation in gender identity. Furthermore, successors are frequently challenging to locate.
The legislation is unlikely to develop a comprehensive inventory of gender identities. This is particularly true given the changing nature of gender. As a result, removing sexuality from the law may be the inevitable next step. Gender-neutral legislation that ensures that everyone has the same rights would limit the extent of who could be excluded from protection.
CONCLUSION
Transgender rights are a big and complicated topic in which only the legislature may intervene by altering legislative statutes to reflect new information. The regulations are based on binary gender identity, which excludes transgender people. Because their gender identity is not legally recognized, they cannot marry or adopt a kid due to the current state of their rights.
Transgender people may lack documents, be unable to marry, or verify adoption, making successors challenging to find. This strategy is faulty since it jeopardizes inheritance rights. Contemporary international and local understanding has evolved to acknowledge the rights of every citizen, regardless of gender. To respond to such knowledge, Indian legislation must be amended.
As a result, the Ministry of Social Justice and Empowerment should study to develop appropriate transgender programs and interventions throughout the country.
Hence, it has become the need of the hour to look into the rights of the Trans community, including the need to bring reforms in the property inheritance rights of Transgender people.
[1] Michael Schulman, ‘How the transgender alt-glam scenester faces the demands of being a muse, and a mouthpiece’ (The New Yorker, September 19, 2016)< www.newyorker.com/magazine/2016/09/26/hari-nef-model-citizen> accessed January 5, 2022
[2] Mr. Rohit Shukla, ‘history of transgender people and their struggle in Indian society’ (JOURNAL OF CRITICAL REVIEWS, July 8, 2020) <www.bibliomed.org/mnsfulltext/197/1971598507333.pdf?1641387379> accessed January 5, 2022
[3] A brief history of Hijra, India’s Third gender (culture trip) < https://theculturetrip.com/asia/india/articles/a-brief-history-of-hijra-indias-third-gender/> accessed on January 6 6, 2022
[4] National Legal Services Authority v. Union of India & Ors [2012] Writ Petition (Civil) No.400
[5] ‘What are the rights of transgender in India’ (ipleaders, October 24, 2015) <https://blog.ipleaders.in/legal-rights-of-transgender-india/ > accessed January 6, 2022
[6] Transgender Persons (Protection of Rights) Act 2019
[7] The Hindu Succession Act 1956
[8] The Indian Succession Act 1925
[9] The Transgender Persons (Protection of Rights) Act 2018
[10] ‘Status of the inheritance rights of transgender under the Indian Law’ (ipleaders, October 16, 2021) <https://blog.ipleaders.in/status-inheritance-rights-transgenders-under-indian-law/> accessed January 7, 2022
Author
Dershi Sharma
BBA.LLB (2020-25)
NMIMS school of law, Bengaluru