This article is written by Gyaaneshwar Joshi, a student of the Faculty of Law, Jamia Millia Islamia, New Delhi. This article enlightens about the rights of transgender persons to inherit property in India and the need for intervention of legislature to transform these rights.
The transgender community is among one of the most marginalised communities in the country because they do not fit into the stereotypical categories of the gender binary. Transgender is an umbrella term applied to those individuals whose gender identity is not the same as the sex they were assigned at birth. John F. Oliven, a psychiatrist at Columbia University coined the term ‘transgenderism’ in 1965 by replacing it with the term ‘transsexualism’.
The debate on the inheritance of transgenders began in 2005 after Ajay Mafatlal (who was Aparna Mafatlal till a sex change operation) underwent sex reassignment surgery and became a man to acquire an equal share of the property under Hindu Inheritance law. This incident fueled a debate to grant institutional recognition of transgender persons in India. Therefore, the national census in 2011 for the first time allowed persons to choose ‘others’ to identify their gender.
In India, transgender persons are deprived of their civil rights, including the right to inheritance. It has become the main reason why most transgender persons have low income, lesser savings, and do not have access to housing.
Rights of transgenders in India
There is a long history of transgender persons in India. According to the study of transgenders by the National Human Rights Commission, the total population of transgenders according to the 2011 census is 4.8 lakh; in which only 30,000 are registered with the Election Commission. Also, the study of the Human Rights of transgenders in India suggested that there are around 50 to 60 lakh transgenders in India, but most keep it a secret to avoid discrimination.
The Supreme Court in the landmark judgment of NALSA v. Union of India (2014), recognised the rights of transgender as the third gender. The Court while addressing their problems directed the Centre and State governments to treat them as socially and educationally backward classes and extend all kinds of reservations for their education and employment. The Court held that individuals have the right to self-identification of their sexual orientation even without medical intervention and allow them to choose their gender following the sex reassignment surgery. The Court admitted the poor property rights given to the transgender persons but refused to intervene in this matter mainly because for two reasons:
- Gendered Inheritance Laws: India has a poor history of gendered laws where inheritance of property is governed by personal laws of the respective religion and community. These laws contain gendered terms for which transgender person needs to put themselves in a category of either male or female to come within the ambit of inheritance laws. This leads to a challenge and confusion as to how transgender inherit property if included. The issue regarding gender discrimination has been raised by the Consultation Paper on Reform of Family Law, the 174th Report of Law Commission of India, and the 207th Report of Law Commission of India but nothing has been discussed so far about how transgender people can be included in the Inheritance laws.
The usage of gendered terms in various laws reflects inherent biases in drafting legislation. Notably, Section 13 of the General Clauses Act, 1897 prescribed the term masculine gender shall also include females because it will help to provide uniformity of expressions in Central Acts. Similarly, Article 15 of the Indian Constitution prohibits discrimination on the grounds of sex, in which the term ‘sex’ collectively includes all genders not just limited to biological sex as male and female.
- Gender and identification: Most transgender persons lack documentation which also affects their inheritance rights by denying them the guarantees usually available to citizens. Despite legal recognition been granted in a Supreme Court judgment in April 2014, acquiring an identity card in their preferred name and gender remains a challenge for transgender persons. The inheritance requires identity documents in which any person before possession of the property or an asset needs to prove their identity, relation to the deceased person, and residence of both parties. Whereas, any person without a valid marriage or adoption cannot prove a valid relation.
Inheritance rights of transgenders : need for reform
In India, most property is acquired through inheritance especially in the rural areas. The challenges of transgender persons to inherit property arises due to two main reasons:
- Rights under inheritance laws define only two sexes either male or female,
- Difficulty in identifying a successor.
The use of a binary notion of gender is not limited to laws dealing with property, but it exists in criminal laws such as the Indian Penal Code, 1860 and the Code of Criminal Procedure, 1973 and labour laws like the Workmen’s Compensation Act, 1923 and the Factories Act, 1948. It is also evident in personal laws such as the Hindu Marriage Act, 1955 and the Hindu Succession Act, 1956. Also, the religious personal laws are used selectively as a tool of benefitting certain genders and excluding others.
Hindu Succession Act, 1956
The Hindu Succession Act, 1956 is a codified law relating to intestate succession among Hindus. It also governs Buddhists, Jain, and Sikhs. However, the Act nowhere defines transgenders within its scheme and prescribes that heirs can only be male or female persons. The Act defines agnates and cognates rights in a definition clause based on a binary notion of gender.
- Agnates: One person is said to be ‘agnate’ of another if the two are related by blood or adoption wholly through males;
- Cognates: One person is said to be a ‘cognate’ of another if the two are related by blood or adoption but not wholly through males.
The Act defines the term ‘heir’ as any person, male or female, who is entitled to inherit the property of an intestate. It grants rights to sons and daughters but does not envisage transgender persons or anyone who changes their gender identity.
Section 8 of the Act defines the general rules of succession in the case of males and dictates the priority of inheritance through classes of heirs. Class I heirs include son, daughter, and broadly male instate’s mother and lineal descendants whereas Class II heirs are mainly father, sibling, and lineage of a sibling. Similarly, Section 15 defines the general rules of succession of Hindu females which contains the list of persons who may inherit the property of female Hindu dying intestate. The priority is given to the sons, daughters, husband, and husband heirs. This shows how males and females are treated under the Act but is entirely silent on whether a transgender who identifies as a male or female would be entitled to inheritance under Sections 8 and 15 of the Act.
Generally, transgender people recognise themselves as females while claiming inheritance of the property rights which is a violation of Article 15 of the Indian Constitution that prohibits discrimination on grounds of sex. The Act in itself is gender-neutral under which Sections 24 and 26 lay the grounds for disqualification of a person from inheritance and being a transgender is no ground for such disqualification.
Muslim Personal Law (Shariat) Application Act
The Muslim law on inheritance is majorly based on the rules laid down in the Quran or the traditions. Muslim property law is uncodified in India and all Muslims are governed by the Shariat Law for succession. The Muslims are divided into two sects- Shia and Sunni and both have their principles of inheritance in India. Under Muslim laws, a female has been given one-half the shares of a male; this is because of her lesser responsibilities and obligations in comparison to the males. Lastly, Muslim law recognises male and female as a subject matter which can be inferred from the terms used in the list of sharers in Shia and Sunni inheritance laws.
The Muslim Personal Law (Shariat) Application Act was enacted in 1937 which mandates Muslim personal laws to all Muslims with certain exceptions including the personal property of females inherited or obtained under gift, contract, or marriage, or dissolution of marriage, etc (under Section 2). All the provisions give little assistance whether transgender persons would be subject to personal laws or accorded the differential protection under the Act. On the same grounds, Section 3 allowed only a male member of a Muslim family to make a declaration within certain grounds as prescribed under the section.
Need for the judicial intervention
Looking at the total number of judgments of various courts since 1950 that mentioned the term transgender, there are a total of 128 judgments in which 8 judgments are given by the Supreme Court, 116 by the High Court, and 5 judgments by the other courts and tribunals. Broadly, the matters are related to:
- Institutional cases such as Navtej Singh Johar v. Union of India (2018) (decriminalisation of Section 377 of IPC) and NALSA v. Union of India (2014).
- Specific cases on inheritance rights of transgenders.
- Reading gendered laws.
- Claims regarding identification documents.
Currently, the Court had only two opportunities to deal with inheritance rights. In these matters, the Court mostly relies on customary practices (of a deceased transgender) while recognising their inheritance rights. Like in the case of Illyas v. Badshah Alias Kamla (1990), the Appellant contended before the Madhya Pradesh High Court that Munilal (a transgender guru) had executed a will in his favour. On the same grounds, the Respondent contended that he was also Munilal’s disciple and had an equal right to the bequeathed property. After the investigation was complete, the Court held that the will in favour of the Appellant was forged and noted that even if there was a will, even then the deceased being a Muslim, could not bequeath more than one-third of their property (which is the testamentary limit of a Muslim person).
The Supreme Court has had only two opportunities to deal with the inheritance rights of transgenders. However, the Indian courts have always acknowledged the fair rights that are being given to them. The Madras High Court in the case of Arun Kumar v. Inspector General of Registration (2019) held that the term ‘bride’ in the Hindu Marriage Act, 1955 also includes transwomen.
Mostly, the court in the matter of inheritance gives relief to transgender litigants on the basis of customary practices but still deprives them of equal rights that are ordinary exercisable by the citizens. Even if the court read trans men and women in the brackets of inheritance laws that would not remain the ideal practice. Even if they are deprived of inheritance rights, it would force them to conform to the binary notions of gender to which they do not belong.
Other countries with transgender’s inheritance laws : an international perspective
Transgender persons face problems ranging from social exclusion to discrimination, lack of education facilities, unemployment, and so on. Article 1 of the Universal Declaration of Human Rights (UDHR) states that all human beings are born free and equal in dignity and rights. Along similar lines, the International Covenants on Civil and Political Rights (ICCPR) recognise that no person shall be denied legal rights. Yogyakarta principles on the application of international human rights laws acknowledge transgenders shall not be deprived of the right to education, employment, right to property, etc. Principle 3A of the Yogyakarta principles allow states to provide inheritance rights to transgenders including the right to acquire through inheritance to transgenders without discriminating on the ground of sexual orientation. This principle was also stated by the Supreme Court in the matter of NALSA v. Union of India (2014). There are several countries that provide inheritance rights to transgenders by enacting and amending various laws:
Islamic Republic of Pakistan
The Pakistan Supreme Court in the case of Dr. Muhammad Aslam Khaki & Anr. v. Senior Superintendent of Police Rawalpindi & Ors. (2009) gave a landmark judgment and stated that transgenders are subject to the Constitution of the Islamic Republic of Pakistan and will be given the right to life and property under the Pakistani Constitution.
On 8 May 2018, the Parliament of Pakistan passed the Transgender Persons (Protection of Rights) Act and allowed the citizens to self-identify themselves as males, females, or a blend of both genders. Pakistan’s legislation, in this historical Act, grants transgenders the right to inheritance often disputed under some interpretation of Islamic law, and the right to property, education, health in addition to the guaranteed fundamental rights.
In November 2020, the Bangladesh government decided to frame legislation in accordance with the Islamic Sharia law to ensure the property rights for transgenders. Currently, transgenders are mostly barred from inheriting estates from their families. There are 1.5 million transgenders in the country to whom the rights have been granted to identify themselves as a separate gender in 2013. However, the Bill to give them inheritance right is yet to be proposed in the Parliament but is expected to comfortably pass by the legislative body once put for a debate.
Transgender persons (Protection of Rights) Act, 2019
The Transgender Persons (Protection of Rights) Act, 2019, was enacted by the Parliament on 26 November 2019, to protect the rights of transgenders and their welfare. However, the Act is facing a lot of criticism with respect to the measures taken for the identification, welfare, and protection of transgender persons. The salient features of the Act are:
- The Act empowers every transgender person to have a right to reside and be included in a household. If the immediate family is unable to care for the transgender person, the person may be placed in a rehabilitation centre on the orders of a competent court.
- The Act states that no government or private entity can discriminate against a transgender person in employment matters, including recruitment and promotion.
- The National Council of Transgender persons (NCT) shall be established that will redress the grievances of transgender persons. The Council will also advise the Central Government as well as monitor the impact of the policies, legislation, and projects with respect to transgender persons.
- A transgender can make an application to the District Magistrate for a certificate of identity, indicating the gender as transgender. A revised certificate can be obtained only if the individual undergoes sex reassignment surgery to change their gender either as a male or a female.
Transgender rights are a vast and complex subject in which only legislature can intervene by amending legislative laws to adapt to such knowledge. The legislative laws are subject to binary gender identity which excludes transgenders. The current status of their rights deprives them to marry or adopt a child because their gender identity is not legally recognized.
The lack of documentation of transgenders causes great difficulty in identifying their successors and hence, alienates them of their inheritance rights. Therefore, the Ministry of Social Justice and Empowerment should conduct research work to design appropriate programs and interventions for transgender persons in the country.
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