By Keshab Roy Choudhury
Introduction
The Transgender Persons (Protection of Rights) Act 2019 was enacted by the Legislature to protect the rights and welfare of trans persons in line with the Supreme Court’s (‘SC’) decision in National Legal Services Authority (NALSA) v Union of India.[1] Briefly, the Court in NALSA unequivocally held that the non-recognition of trans rights was violative of Articles (‘A’) 14, 15, 16, 19(1)(a) and 21 of the Constitution of India.[2] However, not only does the Act negate the right to self-identification and reinforce the idea of the heterosexual procreative family,[3] it also does little to solve the issue of ‘othering’ the community.[4] It has also been criticized for refusing to accord civil rights such as marriage, adoption and inheritance rights.[5]
In order to realize the promise of “equal citizenship in all its manifestations”,[6] the recognition of inheritance rights of trans persons is a sin qua non. Property is an extension of the self and an integral part of one’s identity.[7] In India, inheritance is governed by personal religious laws, which conflate sex and gender identity, i.e. they assume one’s sex is indicative of one’s gender identity.[8] It is also important to note that none of the personal laws is framed in purely gender-neutral terms. However, does that necessarily preclude the inheritance rights of trans men and trans women? In this piece, I argue that while it is possible to read inheritance rights of some trans persons into the gender binary personal law given the expansion of the SC’s fundamental rights jurisprudence, this approach is still plagued with a number of issues. For the purposes of this piece, I shall restrict my analysis only to Hindu inheritance law. However, this line of analysis may be applied to other personal laws as well.
At this juncture, it is important to highlight a few key ideas of the NALSA judgement. The word transgender is an umbrella term and includes all those persons whose gender identity does not align with their sex assigned at birth.[9] In order to legally recognize one’s gender identity, one cannot be forced to undergo invasive medical procedures such as sex reassignment surgery.[10] Gender identity is integral to a person’s dignity and freedom.[11] In determining the gender identity of a person, the psychological test or what one innately feels about their gender is to be used and not the biological test which merely looks at genitalia and other secondary sex characteristics.[12]
Unfortunately, the transformative effect of NALSA remains largely unrealized in the domain of personal law. However, it is important to note that the issue of fundamental rights being applicable to codified personal law has now been firmly settled in light of the decisions of the SC in Shayara Bano v Union of India,[13] where Nariman J. held that the practice of talaq e biddat governed by the Muslim Personal Law (Shariat) Application Act 1937 was violative of A.14 on the grounds of manifest arbitrariness.[14] Similarly, in Indian Young Lawyers Association v State of Kerala,[15] the exclusionary custom of disallowing menstruating women between the ages of 10 and 50 from entering the Sabarimala temple as codified in the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules 1965 was held violative of a woman’s right to religion under A.25 and the right to equality under A.15(1).[16]
Inheritance under Hindu law
Inheritance is governed by the Hindu Succession Act (‘HSA’) 1956. Interestingly, the HSA explicitly states males shall not be construed as females unless so specified.[17] It would prima facie seem that this statute would be impermeable to recognize trans rights. However, the decision of the Madras High Court in Arunkumar v Inspector General of Registration[18] (‘Arunkumar’) provides a precedent whereby trans rights can be recognized in statutory personal law as well.
In this case, a man married a trans woman as per Hindu rites and customs. When the couple wished to register their marriage as per the Tamil Nadu Registration of Marriage Rules, the State authorities refused to do the same, arguing that the bride ‘was not a woman’.[19] Therefore, the requirement under S.5 of the Hindu Marriage Act (‘HMA’) 1955, which states that the ‘bride’ is to be at least 18 years of age, was unfulfilled. The Court, while relying heavily on the NALSA judgement, rejected the State’s argument and recognized a trans person’s right to marry under the HMA.[20] In doing so, it considered a trans woman to be a woman within the meaning of S.5. [21] This was not the first time the word woman has been interpreted to include a trans woman in a statute. In X v State of Uttarakhand,[22] the Court upheld the right to self-identification and rejected the argument that the petitioner (a trans woman) was biologically male and therefore could not allege rape under S.375 and 376 of the Indian Penal Code.
The Court in Arunkumar stated that it was not for the State authorities to determine the gender of the person and the only consideration was how the said person perceived themselves.[23] Thus, the State authorities were wrong in their non-recognition of a valid marriage, as the man had in fact married a woman and had fulfilled all the other criteria as per S.5. The Court reiterated the importance of the said person’s gender identity and not their sex, emphatically holding that a non-recognition of the same by the State authorities would result in a violation of the right to equality and equal protection before the law, freedom of expression and the right to privacy and dignity.[24] It follows from this case that the right to marry for trans persons is a right that flows from recognizing the gender identity of a person, a non-recognition of which would lead to the violation of the aforementioned fundamental rights. The right to marry has previously been recognized as an integral part of the right to liberty and privacy under A. 21.[25]
In a similar vein, it is argued that a trans person’s right to inherit ought to be construed as an integral part of A.21 as a guarantee of property would ensure that such persons are not condemned to live an ‘animal existence’[26] by virtue of their gender identity and would, in turn, reaffirm their dignity under the Constitution. The right of property is not only a constitutional or statutory right but also an inherent human right.[27] This being the case, a more progressive reading of the HSA becomes possible. Thus, the section in the HSA, which states that males cannot be construed to be females, must be construed widely in light of Arunkumar and NALSA. If a strict textual interpretation of the said section is adopted, it would inevitably result in a gross violation of a trans person’s fundamental rights of equality, dignity and freedom of expression with an implicit rejection of their right to self-identification.
As a result of Arunkumar, the scope of Chapter II under the HSA 1956, which deals with intestate succession, is widened. Thus, the rules of succession among males (from S.8 to 13) and females (S.14 to S.17) would have to be interpreted in lieu of a person’s self-identified gender. However,it is also important to note that other states may not adopt the approach in Arunkumar as it is only a High Court judgement holding persuasive value
Accordingly, it is argued that the rules of succession in the case of males must be interpreted to include trans men. Similarly, rules of succession in the case of females must be interpreted to include trans women. It has been observed that while adjudicating disputes under the HSA, the Court never asks the parties[28] to the dispute to undergo a medical examination to determine the gender identities of the parties. In any case, neither the Court nor the State can subject such persons to a medical examination to determine if they are indeed male or female, for it is an affront to their right to privacy and dignity under A.21 of the Constitution.[29]
Issues in the current approach
We have seen that there already exists a legal framework to recognize the inheritance rights of trans persons through a close reading of precedent and its application to personal law. However, there are serious limitations to fully recognizing the rights of trans individuals in the current paradigm.
Suppose a trans person leaves their parental home and joins an indigenous trans community. Would they relinquish their rights to inherit property under the different personal laws, given that they, in effect, have joined new families that are entitled to follow their own customary practices?[30] In certain cases, such as when a person joins the hijra community,[31] would it amount to a conversion under personal laws given that these communities have their own inheritance practices and that many of them co-opt different religious practices?[32] The latter is no longer easily answerable in light of the repeal[33] of the Caste Disabilities Removal (‘CDR’) Act 1850, which protected the inheritance rights of converts. In the presence of the CDR, it would not matter whether the individual had converted or not, for the Act ensured that interest in the property of the converted would not be prejudiced by the fact of conversion to a different religion.[34]
Let it be assumed in arguendo that joining an indigenous trans community amounts to a religious conversion. In Balchand Jairamdas Lalwani v Nazneen Khalid Quereshi,[35] the Bombay High Court took into account the repeal of the CDR Act and held that the intention of the Legislature was not to prejudice the inheritance rights of a convert under S.26 of the HSA.[36] Thus, a Hindu trans person who joins these communities would not have their rights prejudiced. Similarly, the removal of the CDR Act would not have an effect on the inheritance rights under the Indian Succession Act 1925 (applicable to Christians) as the religion of the heir is of no consequence.[37] However, a similar interpretation would not be applicable to Muslim personal law, for once a Muslim converts to another religion, the personal law would no longer be applicable to them.[38] Therefore, what the Court construes as conversion would ultimately determine whether a trans personsrights would be prejudiced. However, this question seems difficult to determine as has been previously stated, the co-option of different religious practices is commonplace.
There are a few additional concerns as well. Firstly, the applicability of fundamental rights to codified religious laws may undergo a change, depending on the SC’s decision in the Sabarimala review petition.[39] Secondly, the personal laws are framed in gender binary terms. As shown above, it is still possible to account for some trans persons within the current scheme of inheritance laws. However, some trans persons may identify as genderqueer. How is an inheritance supposed to be determined when persons themselves do not strictly identify with any of the categories in the gender binary? If the Court were to proceed with deciding inheritance strictly on the basis of a person’s sex and not their preferred gender identity, which can go beyond the strict gender binary, it would effectively nullify the right to self-identification as was propounded in NALSA and violate the dignity of the person so concerned.
A Uniform Civil Code (‘UCC’) could be a possible way forward wherein laws related to succession, marriage and divorce are applied uniformly to all communities. However, there are broader concerns of oppressive assimilation, religious freedom, group autonomy[40] and legal pluralism, which are inevitably attracted. Additionally, there appears to be no concrete conception of a UCC among its supporters (including the Supreme Court)[41] , and it has been observed that even the model Goa Civil Code is highly discriminatory in reality.[42] It must also be noted that current conceptions of the UCC (like the Goa Civil Code) are premised on the existence of cis heterosexual relationships and only account for the rights of cis-gendered persons. Simply adopting a UCC without accounting for gender or legal pluralism is bound to alienate religious and gender minorities even more from the rest of the country.
Conclusion
In this piece, I have argued for a progressive reading of inheritance statutes based on the principle of self-identification as propounded and followed in the NALSA and Arunkumar judgements respectively. However, there is an urgent need to comprehensively include within the scheme of inheritance the interests of all trans persons. The Legislature stands in the best position to do the same; however, balancing the concerns of religious communities also remains a challenge. It must be noted that religious groups have seldom reacted favourably to the Parliament’s legitimate encroachment in the sphere of personal law. It is imperative to move past religious vote bank politics and recognize that in order to fully realize the rights of trans individuals, “one needs not only physical vision in the eye, but also love in the heart.”[43]
The author, Keshab Roy Choudhury , is currently a law student at the O.P. Jindal Global University, Sonipat, Haryana.
[1] (2014) 5 SCC 438.
[2] Ibid, at 492.
[3] D. Sanyal & A. Ghosh, How Can Families be Imagined Beyond Kinship and Marriage?, 54(45) Economic & Political Weekly (16/11/2019), available at <https://www.epw.in/engage/article/how-can-families-be-imagined-beyond-kinship-and-marriage>, last seen on 5/02/2021.
[4] U. Ghia & D. Gandhi, Transgender Rights Bill: A Stunted Understanding of Gender and Equality, The Wire (26/11/2019), available at < https://thewire.in/lgbtqia/transgender-rights-bill-a-stunted-understanding-of-gender-and-equality >, last seen on 10/02/2021.
[5] A. Banerjie, Why India’s transgender people are protesting against a Bill that claims to protect their rights, Scroll.in(26/11/2019), available at < https://scroll.in/article/944882/why-indias-transgender-people-are-protesting-against-a-bill-that-claims-to-protect-their-rights >, last seen on 10/02/ 2021.
[6] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, 198.
[7] Law Like Love: Queer Perspectives on Law, 386 (A. Narrain & A. Gupta, 1st ed., (2011).
[8] Supra 1, at 484.
[9] Supra 1, at 462.
[10] Supra 1, at 465.
[11]Ibid.
[12] Supra 1, at 476.
[13] (2017) 9 SCC 1.
[14] Ibid, at 100.
[15] (2019) 11 SCC 1.
[16] Ibid, at 151.
[17] S. 3(2), The Hindu Succession Act, 1956.
[18] (2019) AIR Mad 265.
[19] Ibid, at ¶3.
[20] Supra 18, at ¶9.
[21] Supra 18, at ¶16.
[22] (2019) AIR UTT 138, ¶19.
[23] Supra 18, at ¶8.
[24] Ibid.
[25] Shafin Jahan v. Asokan KM,(2018) 16 SCC 368, 405.
[26] Francis Coralie Mullin v. UT of Delhi (1981) SCC 608, 618.
[27] Lalaram and Ors. v. Jaipur Development Authority and Ors.,(2016) 11 SCC 31, 95.
[28] Nangai v. Superintendent of Police,(2014) 4 LW 364, 375.
[29] Justice KS Puttaswamy v. Union of India, (2017) 10 SCC 1, 508.
[30] Sweety (Eunuch) v. General Public, (2016) AIR HP 148; Illyas and Ors. v Badshah, (1990) AIR MP 334, 339.
[31] I. Goel, Caste and Religion Create Barriers Within the Hijra Community, The Wire (18/05/2018), available at https://thewire.in/lgbtqia/caste-religion-hijra-community, last seen 20/03/2021.
[32] Gayatri Reddy, With Respect to Sex: Negotiating Hijra Identity in South India, 111 (1st ed., 2005).
[33] S. 2, The Repealing and Amending (Second) Act, 2017.
[34] S. 1, The Caste Disabilities Removal Act, 1850.
[35] (2018) 2 Mah LJ 804.
[36] Ibid, at 810.
[37] S. 32, The Indian Succession Act, 1925.
[38] Dr. P. Saxena, Family Law II, 449 (3rd ed., 2011).
[39] Kantaru Rajeevaru v. Indian Young Lawyers Association,Review Petition No.3358/2018.
[40] F. Ahmed, Remedying Personal Law Systems, 30(3) International Journal of Law, Policy and The Family 248, 250 (2016), available at < https://academic.oup.com/lawfam/article/30/3/248/2413021>, last seen on 11/02/2021.
[41] A.P. Kumar, Uniform Civil Code: A Heedless Quest?, 51(25) Economic and Political Weekly (18/06/2016), available at <https://www.epw.in/journal/2016/25/law-and-society/uniform-civil-code.html>, last seen on 10/02/2021.
[42]A. Almedia, Goa’s Civil Code Shows That Uniformity Does Not Always Mean Equality, The Wire(8/08/2016), available at <https://thewire.in/law/goas-uniform-civil-code-is-not-the-greatest-model-to-follow>, last seen on 10/02/2021.
[43] Supra 18, at ¶1.
The Journal of Indian Law and Society 