Sakshi Gopal & Samiksha Kumari*
Introduction
The recognition of Transgender as “third gender” is marked as a watershed moment in the constitutional history, in respect to providing substantive equality. Yet, despite this progressive development, one area has remained largely untouched even at this juncture – which is inheritance rights. Devolution of property is not merely about the economic entitlement; rather they are closely intertwined or related with dignity, family recognition, and the social inclusion. For Trans, however, the reality is quite sober, where due to uncertainty in India’s Succession laws; they are forced to fit within the male – female binary. Hence, there is a contrast where, constitutional jurisprudence has evolved to provide equality, dignity, and social Inclusion within the main stream, without any prejudice of gender; however, succession laws have failed to adopt the same.
This legislative gap is necessary to highlight assuming a greater significance, because of the considerable amount of the transgender population. According to the recent 2011, census 4.88 lakh person are identified as transgender. However, according to the estimates of several NGO’s and Civil Societies the estimate of population varies from 2 million to 5 million. This gap can be explained by several factors such as social stigma, familial rejection, and fear of the discrimination. This invisibility of transgender persons within the legal frameworks consequently extends beyond the individual identity and extends further to the right of access to property, inheritance and the economic security.
Constitutional Recognition of Gender Identity
Article 14, 15, 19 and 21 of the Indian constitution collectively guarantee, the equal protection of laws, prohibit discrimination, protect the freedom of speech and expressions, and also provide the right to life with dignity. Hence, our wonderful constitution provides the normative foundation for equality, dignity, and non discrimination. Judiciary has through, progressive interpretation, has expanded and strengthened these guarantees, to encompass, the gender identity.
The court has given several landmark decisions such as in National Legal Services Authority v. Union of India – court have clearly, recognized, transgender as the “third gender”, where the court has clearly held that gender identity is completely autonomous, and is the intrinsic component of personal autonomy and dignity protected under Articles 14, 19(1)(a), and 21 of the Constitution. Court here clearly affirmed that, identifying as a particular gender, is a constitutional right, which can’t be curtailed, and it is completely the onus of concerned person to be identified as he she wants to be, rejecting the binary concept of the gender.
This constitutional position was further, emphasiszed in the landmark case of Justice K.S. Puttaswamy (Retd.) v. Union of India, where in court of 9 judges bench, clearly held that Privacy is to be regarded as a fundamental right. As privacy is concerned with individual choices, bodily integrity, and the freedom to make intimate personal choices, including those relating to gender identity? Justice Chandrachud Clearly noted that –“privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.” This judgment again reiterated that Individual chosen gender is inseparable from the constitutional dignity.
Furthermore while court in the landmark case of Supriyo @ Supriya Chakraborty v. Union of India, has declined to give a legitimacy for same sex marriage, but they again clearly affirmed there, that trans and queer enjoy the equal protections, under Art 21 for a dignified life. Hence the constitutional morality is about protection the rights of these vulnerable.
Collectively, all these decisions clearly establishes one constitutional principle – Gender Identity is neither a medical determination nor a social one, rather it is the inherent aspect of Individual Identity, it’s autonomy which also deserve the equal protections. However, while we have achieved much developed jurisprudence, we still lack behind when we come to succession laws, where succession statues continue to remain anchored in the gender binaries.
The Binary Structure of Indian Succession Laws
Unlike the constitutional rights, which is provided to every single citizen, which doesn’t see whether the holder is male or female, but it is not the case with Succession laws, the laws which governs the succession in India. Hence the problem at the end is that is the personal inheritance laws do not allow one to be recognized from other than the binary inputs, within familial relationships.
In the Hindu Succession Act, 1956 (HSA), there is a clear exemplification of the binary framework. Here Act does not have a single provision which silence the curiosity on the rights of third gender, as its provision consistently employ the gender – specific classifications. Refereeing to the Section 8 of the Hindu Succession Act, which governs the succession of a property of a Hindu Male, Dying Intestate, thereby they refer to Class 1 hier, and in class 1 heir & these heirs only includes – the “son,” “daughter,” “widow,” and “mother,” all of which comes under the binary limit. And here the real problem does not lies in explicit exclusion but in legislative silence.
Coming to the 2005 amendment, where Sec 6 was amended, recognizing the rights of women to inherit the ancestral property, which was marked as a historic advancement. However the amendment was confined only to solve the problem of gender discrimination, between men and women. It neither contemplate nor tried to solve the problems of individuals who are falling outside the traditional gender binary Identity. Consequently, despite marked progress the amendment failed to capture and absorb the gender diversity.
A similar kind of situation exists with the Indian Succession Act, 1925, which is a secular law and governs testamentary and intestate succession for various communities. Although this statue frequently employs comparatively neutral terms such as “kindred” and “heir,” in operation it is in continuance to make a distinct rule based on the binary assumptions. Therefore even India’s Secular framework fails to provide the rights to transgender what they deserve. And such ambiguities and loopholes not only hinder the rightful inheritance, but also undermine the constitutional guarantees given by the NALSA judgment.
Judicial Response in the Absence of Legislative Reform
Although there is the absence of the comprehensive legislation, Indian courts have occasionally, attempted to safeguard the constitutional promises given to transgender. However the judicial approaches and their decisions are quite fragmented and are very specific in nature.
Such as one of the earliest decisions on the Inheritance of Transgender on Inheritance of properties was Illyas v. Badshah Alias Kamla. There the court recognized the Guru Chela relationship, as a legitimate social institution, and affirmed the validity of the custom. Similarly HP HC in the case of Sweety v. General Public has clearly held that even the guru can inherit the property, because their own customs permit them to do so.
These judgments are the proofs that courts undoubtedly, are on the verge of progress regarding the protections of the Vulnerable Transgender. Where there is no need to identify or fit into the binary criteria for inheriting the property, rather they can inherit with having their own gender orientation. But courts cannot be the substitute for the well drafted legislation, recognizing and giving the same rights to Trans community.
The Comparative Perspective: Much More to Learn
Other countries are quite active in fulfilling the demands of the third gender; however there is something which needs to be improved in other countries as well. Nepal, after the case of Babu Pant v. Nepal Government (2007), constitutionally recognized the third gender, however they still lack behind the Inheritance Laws. Similarly, Argentina recent act namely – Argentina’s Gender Identity Law, 2012 is widely regarded as one of the most progressive statutes. This act permits transgender to choose their own sexual orientation, without taking permission from the medical authority or judicial authority. This helps individual with having one uniform, gender, across all the official documents, which in turn will minimize the matters concerning family law, and other laws related to succession.
Although, it is true that India has a different social context, different legal landscape, with very high populace, however, their experiences illustrate that, it is not very not difficult to recognize, the, the gender diversity within the ambit of succession laws. And providing this is neither administratively impossible nor jurisprudentially radical. With, proper discussion and intellectual process, we can embed the neutral provision in the succession laws.
Reimagining Succession Laws: The Way Forward
There are many things to do; the foremost thing is to bring an amendment in the personal succession laws, where replacing of gender-specific terminology with gender-neutral language must be done. Terms such as “son” and “daughter” can be substituted by “child,” and terms like “father” and “mother” can be replaced by “parent,” similarly “husband” and “wife” can be replaced by “spouse”.
Secondly, the Transgender Persons (Protection of Rights) Act, 2019, which is even silent on the matter of Inheritance and succession, an amendment, is necessary especially with matters related to inheritance, succession, testamentary disposition, and family property. Rights of Inheritance, which remains the neglected area, despite it’s value which closely interlinked with the economic security and social inclusion with dignity; must be added to section 3 of the act.
Thirdly, administratively, a change in the system must be reflected where changes in gender markers, must be reflected across all the documents uniformly, such as in birth certificates, Aadhaar, passports, land records, revenue documents, wills, and succession certificates. It would substantially, reduce the inconsistencies arising from the different records.
Finally, sensitization programme must be launched to normalize the gender diversity. Fotr this reform, legal reform is needed as well, where judicial officers, revenue authorities, legal aid institutions, and registration officials must be given the proper training regarding transgender rights and constitutional equality.
Conclusion
The constitutional Progress cannot be concluded just with the recognition of the identity alone. Rather, property as well inheritance rights constitutes indispensable aspect of the economic protection and dignity. Judgment like NALSA, K.S. Puttaswamy, other subsequent decisions have affirmed the position of transgender, but still there are much more to reach. Then only our government can fulfill the constitutional promises. Society must be educated to understand that every individual has the fundamental right to determine and express their own gender identity with dignity and without discrimination. And, only through a harmonious combination of progressive laws, effective implementation, and societal acceptance can India truly uphold its constitutional vision of justice, equality, liberty, and fraternity. It is only then that the nation can genuinely progress towards its constitutional zenith, where both the State and its citizens work together to realize the promises of the Constitution.
* The first author is a student of B.A. LL.B. (Hons.) at National University of Study and Research in Law, Ranchi and the second author is a student of B.A. LL.B. (Hons.) at Department of Law, Babu Dinesh Singh University (BDSU).