Our great nation has vibrant democracy governed by the Rule of Law, with our founding fathers copiously discussing all the constitutions of the World and its evolution of over 150 years during the constituent assembly debates. Our geniuses in the constituent assembly deliberated for almost three years, before finally agreeing upon our magnificent Constitution pervaded with values, wisdom & liberties to which our constitution is committed. At the same time, it is disheartening and ironic to note that when laws were being codified and enacted by Parliament and the State Legislative Assemblies in the entire history of Independent India before 2016, there was no mention of the third gender.
The preamble starts with ‘ We the people ’ which includes every person in this country including the third gender. The misfortune also lies in the fact that the preamble of the Constitution anchors upon the Foundational pillars out of which Justice, Liberty, Equality, and fraternity are the values that are inalienable, but all these values, somehow, could not appeal to the wisdom of Lawmakers to work upon the Constitutional commitment to a third gender. For some strange reason, the laws that should have been codified and enacted to eradicate discrimination, help the weaker section, uplift the downtrodden, and recognize the neglected sections of the Society, could not see the light of the day, in most of scenarios.
Apart from existing social evils in our society, a glaring example of this discrimination can be demonstrated and felt in the recognition of the third gender, despite, the third gender is present in our society, since time immemorial. It is just recently that the third gender are being recognized, uplifted, accepted, and institutionalized through the Supreme Court judgment in 2014 and the legislative mandate in 2016. Even though, the most vital first step in the field has been taken by the Hon’ble Supreme Court in identifying the third gender and the legislature is yet to discover, develop and tread through an eternal passage that is a distant reality from the present.
MEANING OF TRANSGENDER
Transgender in India was not recognized as a legal entity in so far as gender is concerned. The Hon’ble Supreme Court of India in National Legal Services Authority (NALSA) vs. Union of India (2014) 5 SCC 438, declared transgender persons as a ‘ third gender ’. It is an inclusive definition and it subsumes with it sweep trans-man or trans-woman, persons with intersex variations, genderqueer and person having such socio-cultural identities as Kinner, hijra, aravani, and jogta. However, the definition under the Transgender Persons (Protection of Rights) Act, 2016 incorporates the following multi-identity definition under Section 2 (k):
“Transgender person means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), the person with intersex variations, genderqueer and person having such sociocultural identities as Kinner, hijra, aravani, and jogta.”
This definition has its proximity to the Supreme Court’s decision in the landmark judgment of National Legal Services Authority (NALSA) vs. Union of India (2014) 5 SCC 438. When the law was taking yet another major twist and turns for becoming an Act of 2016, this judgment of NALSA was one of the major contributors in making the Transgender Persons (Protection of Rights) Act, 2016 in its present form. The judgment brought to light that it’s not just the male and females that constitute a society, but there is another small segment being ignored and neglected, and thus being tormented i.e. the third gender. A division bench comprising Justice Radhakrishnan and Justice (Dr) A.K. Sikri pronounced its judgment in April 2014. The issue in the case was:
- Whether individuals who do not fit into the binary of male/female can be legally recognized as “third gender” individuals?
- Whether dismissing non-binary gender identities constitutes a violation of the fundamental rights guaranteed under the Constitution? It referred its decision to the ‘Expert Committee on Transgender Issues’, established under the Ministry of Social Justice and Empowerment.
THE SUPREME COURT DECIDED AND UPHELD :
- All individuals have the freedom to self-identify their gender. Gender identity, the Court explained, does not refer to biological features but rather to “an innate perception of one’s gender”.
- Additionally, it established that Hijras and eunuchs have the legal right to self-identify as “third gender”. It held that no person of a third gender should be subjected to a medical examination or biological test that would violate their right to privacy.
- The Court interpreted ‘dignity’ in accordance with Article 21 of the Constitution and incorporated gender identity into the scope of the fundamental right to dignity under Article 21.
- Additionally, it highlighted that the right to equality (Article 14) and freedom of expression Article 19(1) (a) is gender-neutral (“ all persons ”) under the Constitution. As a result, transgender individuals would have the right to equality and freedom of expression.
- Articles 15 and 16 expressly ban discrimination on the basis of “sex”. The Court determined that “sex” in this context encompasses not just biological features (such as chromosomes, genitalia, and secondary sexual characteristics), but also “gender” (as determined by one’s self-perception). Thus, the Court decided that discrimination on the basis of “sex” includes gender identity discrimination.
- Additionally, it directed the Union and State governments to take several initiatives to advance the transgender community, including the following:
- Making provisions in all documents for the legal recognition of “ third gender ”;
- Recognize third-gender individuals as a “ socially and educationally disadvantaged class of citizens ” entitled to the educational institution and governmental employment preferences;
- Taking initiatives to develop community-based social welfare programs.
It was a decision where the Hon’ble Apex Court for the first time discussed “ gender identity ” at length and recognized that persons of third gender were entitled to fundamental rights under the Constitution and International law. Further, it directed state governments to develop mechanisms to identify the rights of third-gender/transgender persons. The decision ushered in a new era in gender equality and brought new welfare policies, and opened gates for identifying the civil rights of Transgender Persons.
Although, the Supreme Court has noted the importance of the right to vote, the right to own property, the right to marry, the right to claim a formal identity through a passport and a ration card, a driver’s license, the right to education, employment, health for transgender persons in its NALSA judgment, as further to the cause of third gender identification. With the appreciation NALSA judgment deserves, the Supreme Court just stopped issuing the directions to Union and State legislatures of various seminal aspects that could have actually furthered the real cause of the third gender recognition. The important points where directions could have been issued are mentioned below:
- Establish gender neutrality in various laws;
- Correction in the already existing laws that unconditionally support gender discrimination;
- To provide rights directly in the hands of transgender persons;
- Inheritance rights of transgender persons in their personal laws or even in the laws made by the State.
TRANSGENDER PERSON VIS-À-VIS TRANSFER OF PROPERTY IN INDIA
Transfer of Property is a subject matter enumerated at Entry 6 of the Concurrent List i.e. List III of the Seventh Schedule of the Constitution. It means that both the Union and State governments can concurrently legislate and regulate the transfer of property, but in case, there is a conflict between the Union Law and the State Law, the Union Law prevails. The exception to the transfer of property would be the transfer of agricultural land and property where the State governments have exclusive powers to legislate the transfer of agricultural land within its territory vide Entry 18 of List III in the Seventh Schedule of the Constitution.
After the decision in the National Legal Services Authority (NALSA) vs. Union of India, several States have exercised their powers and took measures to secure the rights of transgender persons and to integrate the third gender into the mainstream.
The states of Uttar Pradesh & Madhya Pradesh have enacted legislation guaranteeing inheritance rights in agricultural land and property. While the States of Assam, Madhya Pradesh, Karnataka, Kerala, Odisha, and Tamil Nadu released transgender policies to secure a wide array of civil rights to the third gender. But, the fact that except Uttar Pradesh and Madhya Pradesh, no other state addressed the third gender’s right to transfer or receive property, including inheritance, is of grave concern and can cause consequences contrary to the Judgment of the Hon’ble Supreme Court. As far as most of the Laws are concerned, Transgender persons have been living in the shadows of binary created by legal fiction. In fact, the response of the majority of the States for third-gender rights flies in the face of the NALSA judgment pronounced by the Hon’ble Supreme Court.
INHERITANCE FIASCO UNDER PERSONAL LAWS
In India, most property is acquired through inheritance as per the data available from governmental/non-governmental agencies. For example, Lahoti, Suchitra, Swaminathan, and others (2016) noted that almost 85% of land in rural areas is acquired through inheritance. The highlighted need for gender-neutral inheritance laws runs on two grounds:
- Inheritance laws define rights based on gender which includes just males or females; and
- Difficulty in identifying and adopting successors (in the case of transgender persons).
OBJECTED FEATURES OF THE PERSONAL LAWS OF TWO COMMUNITIES
The law applies to the rights of Hindus, Sikhs, Buddhists, and Jains. It provides detailed provisions, rules, and regulations regarding the succession of males and females. The Act does not bring transgender persons within its ambit. This is evident through various clauses:
- The definition clause prescribes that heirs are limited to male and female persons. It also defines agnates’ and cognates’ rights based on a binary notion of gender;
- The Act grants inheritance rights to sons and daughters;
- There are specific sections for rules of inheritance for males and females:
- Section 8, which governs the devolution of male intestates’ property, dictates the priority of inheritance through classes of heirs. Class I heirs include, broadly, the male intestate’s mother and lineal descendants. Class II heirs are the father, siblings, lineal descendants of siblings, and the siblings of the male intestate’s parents;
- On the other hand, Section 15 (1) provides the rules of inheritance for property belonging to female intestates. It does not organize the heirs by class. Instead, it explicitly lists the persons who are eligible to inherit the property. The property first devolves to the deceased’s children, followed by her husband’s heirs, and so on;
- There is no clarity upon who is included within either of these terms. For example, the Act is silent whether a transgender person who identifies as a male would be entitled to inheritance under Section 8, Hindu Succession Act or not, and also if a transgender person identifies as a female what would be the outcome? There can be a third scenario where a transgender person identifies as none of the Binaries.
Muslim Personal Law (Shariat) Application Act, 1937
Muslim property law is largely uncodified in India and the inheritance rights are determined according to customary laws. Since customary laws have been shaped several times, there is a considerable variation in how individuals inherit property. The problems it brings within itself are:
- In some instances, inheritance under Muslim Law may be as per the degree of separation, thus creating no differentiation between genders;
- In others, the male relation is allocated an inheritance share twice as large as the female relation along with an accompanying responsibility to take care of the female relation.
Since, there is no uniform way to ascertain inheritance, any one particular or exceptional situation would not do justice to the varied treatments of the persons of the third gender. But of course, it can be of assistance in setting precedents in case of ambiguity while dealing with the property rights of the third gender.
UNIDENTIFIED SUCCESSIONS OF THE PROPERTY
Even if, a transgender person inherits property (hypothetically), it still poses other significant challenges it is often difficult to identify successors to the transgender person. The main reasons are:
- Transgender persons lack documentation at times;
- Transgender persons could not marry, despite Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice, AIR 2018 SC 4321;
- Cannot prove adoption as it is usually governed by personal laws that are not gender-neutral.
COURTS POSITION ON SUCCESSIONS OF TRANSGENDER PERSONS
The High Courts on two occasions dealt with the inheritance rights of Transgender persons and it is interesting to note that the courts have upheld the rights of Transgender persons to inherit property.
The High Court of Madhya Pradesh in Illyas vs. Badshah Alias Kamla, (1989 SCC OnLine MP 175), was dealing with the devolution of the property of a transgender person. The issue before the High Court was, in addition to a Will in his favor, the respondent (the chela) claimed that the property one obtains from a Guru cannot be passed to outside the community.
The facts of this case were that the appellant contended that Munilal (a transgender guru) had executed a Will in his favor. The respondent laid a similar claim; however, he also contended that, unlike the appellant, he was Munilal’s chela. Manila had also inherited the contested property from their then guru. Though Madhya Pradesh High Court ultimately held that the Will in favor of the appellant was forged, it noted that, even if, this was not the case, the deceased being a Muslim, could not bequeath more than one-third of their property (the testamentary limit of a Muslim person) as opposed to customary practices of the community. As such, at least two-thirds of the property would proceed to the chela (as a customary practice), the respondent in this case.
In Sweety vs. General Public (2016 SCC OnLine HP 909), the High Court of Himachal Pradesh dealt with another case of a transgender persons with the succession in an inverse relation. In this case, the chela(s) had passed away and the lower court denied the Guru any rights in the contested property, stating that the Hindu Succession Act did not envision such a relation. Notably, no one else claimed any part in the property.
Himachal Pradesh High Court reversed the lower court’s decision. It was held that there was no reason why the appellant (guru) should not inherit the property as per their customs. The court also concluded (since the religion of the parties was not on record) that the persons would not be bound by the Hindu Succession Act, which it said would curtail their rights.
FROM DARKNESS TO LIGHT
In Ram Krishna Dalmia vs. Justice SR Tendolkar (AIR 1959 SC 538), the Hon’ble Supreme Court held that even a single person may constitute a class by themselves and warrants constitutional protections.
Unfortunately, the Hon’ble Supreme Court took an extremely narrow view of the fundamental rights in Suresh Kumar Koushal vs. Naz Foundation (2014) 1 SCC 1, held that:
“ 52. In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions… ”
A constitution bench of 9 Hon’ble judges of the Supreme Court in Justice KS Puttaswamy vs. Union of India , (2017) 10 S.C.C. 1, reversed the erroneous observations of the division bench of the Supreme Court in Suresh Kumar Koushal vs. Naz Foundation , that impinged upon rights of the members of LGBTQ communities. It was observed that the rights of the lesbian, gay, bisexual, and transgender population, as per the decision in Puttaswamy (supra), cannot be construed to be “ so-called rights ” as the expression “ so-called ” seems to suggest the exercise of liberty in the garb of a right which is illusory. It went on to clarify that the constitutional framers could never have intended that fundamental rights protection be limited to the majority of people. If this was the objective, then every provision in Part III of the Constitution would have included qualifiers such as ‘ majority persons ’ or ‘ majority citizens ’. Rather than that, the provisions use the terms ‘ any person ’ and ‘ any citizen ’, emphasizing that constitutional courts are obligated to protect the fundamental rights of every single citizen, without waiting for a catastrophic situation in which the fundamental rights of the majority of citizens are violated.
The Hon’ble Supreme Court in Navtej Singh Johar vs. Union of India , (2018) 10 SCC 1, had declared the offence u/s 377, IPC as unconstitutional and decriminalized it among the consenting adult human beings. There was a mention of NALSA judgment in this case. It was pointed out that the eminence of identity, as articulated so eloquently in the NALSA case, binds human rights and the constitutional guarantee of the right to life, liberty, and dignity inextricably together. In the same vein, we must realize that a constitutionally tenable sense of identity cannot be pigeonholed exclusively to one’s orientation, as this may suffocate human choice. Self-determination is at the heart of the concept of identity; it is the realisation of one’s own capabilities, visualising opportunities, and rejecting external views with a clear conscience that is consistent with constitutional standards and values or principles that are, in a nutshell, constitutionally permissible.
The recent judgments of the Hon’ble Supreme Court have given a ray of hope to all the members of the society including the third gender that the Supreme Court is committed to the Constitution of India, and the ultimate protector of fundamental rights of the citizens that are extended to every individual of this country.
Coming to the transgender persons, in the authors’ understanding, they constitute a completely separate class and definitely need special protection under the constitution, being suppressed and oppressed members of the Society for decades. With burgeoning opportunities being opened for them in the civil services sector, or in the police establishments, or are being granted privacy rights, it is high time, we bring to them the right to inherit and bequeath which could make our society a more inclusive society that seems to be distant from here. Transgender persons have been waiting for decades to get over the era of darkness as they have bore the catastrophic situations in which the fundamental rights of the majority of Transgender persons have been violated.
It is time for the legislature to liberate the third gender with the right to vote, the right to own property, the right to marry, the right to adoption, the right to claim a formal identity of their association through a passport and a ration card, a driver’s license, the right to education, employment, health. With this advancement, Transgender persons will be able to breathe freely and live with dignity, in this country after decades of suppression & oppression and it will further the cause of social justice as envisioned by the framers of our magnificent constitution.
Dr. Rohit Samhotra,
Supreme Court of India.