From Dharamshastra to Democracy: The Structural Exclusion of Non-Binary Genders From Succession Rights under The Hindu Succession Act, 1956

*Utkarsh Chaudhary

Introduction

The judgment of NALSA v. Union Of India (2014) opened the previously shut doors to the legal recognition of non-binary genders in India. With this recognition, many legal and societal challenges came, the most prominent being the structural exclusion of non-binary genders from inheritance rights, which are sometimes recognised as basic rights. Around 85% of the property in India is acquired through inheritance. This leaves the already poor and marginalised transgender community in a financially vulnerable situation. In most cases, the transgender identity of a person is not accepted by their own family, and they are forced to face exclusion, which severely affects their already poor monetary condition. To compound the crisis, over 96% of transgender persons face systematic discrimination denying them employment, shutting the doors to achieve financial independence. Absence of inheritance rights aggravates their financial constraints, forcing many to resort to begging and sex-work and also compelling them to indulge in criminal activities or find low-wage jobs in the informal sector.

Indian courts have delivered several progressive judgements, including Navtej Singh Johar v. Union Of India and Supriyo v. Union Of India. These rulings have underpinned the right to be recognised and right to choose marriage partners and have also acknowledged the struggles faced by the non-binary genders. None of the judgements have adequately addressed the lack of inheritance rights of the transgender community and the legislation has also failed to address this issue.

History of structural exclusion from Inheritance: ancient texts and colonial laws

In NALSA v. Union Of India 2014, the Supreme Court highlighted that prior to the colonial rule, transgenders were treated with respect, and they also occupied respectable positions in society, but the judgment fell short of shedding light on the position of transgenders in Dharmashastric laws on inheritance. The Shastric laws do not confer any inheritance rights upon transgenders, exposing the cis-heterosexual approach of the laws and structural banishment of the community from ownership of property. In Chapter-Inheritance, line.32-34 of the Vishnu Smriti states that “Eunuchs” cannot claim rights in the property. In accordance with the Manusmriti translated by G. Buhler chapter 9, line 201, prohibits transgender persons from receiving a share in the inheritance. Though there is no direct and established relation between the word “Eunuch” and modern day definition of transgender but position of “eunuchs” under Hindu laws enables us to consider the status of transgender who were excluded from both statutory application of laws and claiming inheritance rights. Many other Dharmashastric texts, including Yajnavalkyasmriti, display the same predicament as above regarding the inheritance rights of non-binary genders as observed by court in Sweety (Eunuch) v. General Public. The aforementioned ancient texts expose the deep-rooted exclusion of non-binary genders from claiming share in property and viewing homosexuality as a deformity.

During colonial rule the condition of the transgender community worsened as British colonial laws were heavily influenced by the Victorian version of morality. Whereunder the nonconformity to heterogeneous sexuality attracted severe punishment and social stigmatisation. As a result of it, registration of transgender community under draconian and discriminatory Criminal Tribes Act 1871 and labelling the whole community as “habitual offenders” and “born criminals” subjected the community to state-sanctioned surveillance and loss of livelihood. Also, the irreparable injury by Section 377 of the Indian Penal Code, 1860, criminalising any homosexual activities, made the community an easy target for unnecessary profiling by law enforcement agencies. In many cases forcing them to conceal their true individuality that severely affected their self-identity.

Interpretations by colonial courts placing the heterosexual concepts at the centre of the dharmic inheritance laws of the Hindus and, again, pushing trans people’s rights into oblivion. Various High Courts made the mistake of linking inheritance in Dharmashastric laws to an ability to enter into heterosexual marriage, as held in the case of Amirthammal v. Vallimayil Ammal. In Krishna v. Sami, the Madras High court connected the inheritance right with the ability to transmit heritable blood, thus systematically disqualifying non-binary genders from claiming inheritance.

Cis-heterosexual nature of the Hindu Succession Act

The Hindu Succession Act, 1956 was passed as legislation which covers the inheritance rights of not only Hindus but Sikhs, Jains and Buddhists. It is categorised as centred around the heterosexual understanding of marriage, blood-relationships, kinship and other relations. The inheritance rights are also tied around this same heterosexual understanding, showcasing the Act’s inability to address homosexual relationships.

Section 3(f) of the Act confines the definition of “heir” to only male and female genders, making only binary genders entitled to inherit property under this Act. Moreover, Section 8 and Section 15 give us rules regarding succession in case of death. Treating Hindu males and females in different ways regarding transfer of property in the event of death. Section 8(a) states that in case of death of a male Hindu, his property would be transferred to Class I heirs specified in the schedule, which includes the male’s mother and lineal descendants. In the absence of Class I, the inheritance rights will be conferred upon Class II heirs, including the father, siblings, lineal descendants of siblings and siblings of the deceased male’s father. In Section 15, it directly states the relatives who are entitled to inherit the property in case of death of a Hindu female. Section 15(1)(a) confers first-priority inheritance rights on the deceased's children alongside her husband. Heirs of her husband form the second-priority category under Section 15(1)(b), applicable only in the absence of children and husband. Now the problem arises in the case where a transgender person is born as a female but identifies himself as male, provided he has no children. If his identity is to be taken from the gender assigned by birth (female), then after the person’s death, their spouse's heirs will be entitled to the share, and if the person is identified as male, an entitlement will go to Class I heirs, i.e. their mother. This will leave a person's identity vulnerable to arbitrary decisions on how he/she is perceived.

Ray of hope - Judicial progress in the midst of legislative silence

Although there is a lack of statutes providing inheritance rights to the non-binary gender. In recent years the Supreme Court and various High Courts have passed many progressive judgments which set the way for future laws recognising their rights. NALSA v. Union of India gave recognition to transgender people and Navtej Singh Johar v. Union of India, decriminalised homosexual relationships and, in Arunkumar v. Inspector General of Registration, a trans-woman was brought under the definition of bride by the Madras High Court. All such examples show the progressive steps undertaken by the Indian judiciary towards allowing transgenders to exercise equal rights and self-determination. India is also a signatory to the Universal Declaration of Human Rights (1948) and UN Charter,1945.“Right of choice”, a right constituting an indissoluble part of fundamental rights promoted by these charters. This puts an obligation to develop a legal framework that allows them to realise their full potential and shields them from economic and social hardships.

Article 14 and Article 15(1) of The Indian Constitution guarantees equality and removes discrimination on grounds of sex, this mandates the legislation to remove arbitrary and the discriminating laws which directly or indirectly denies succession rights on the basis of gender identity. In NALSA v. Union Of India, the Supreme Court laid the ground for the right to self-identity of one’s gender under Article 19(1) and further reasoning that this article is gender-neutral and applies to all persons equally. This prohibits any legislature forcing a trans person to align to binary gender thus, anchoring inheritance rights with right to self-determination. Article 21 guarantees the right to life and personal liberty which extends to living life with dignity. The right to choose one’s gender without facing any discrimination is also an integral part of Article 21 thus, mandating the government to remove obstacles subjecting a person to discrimination based on his gender choices.

 In 2019, legislation passed the Transgender Persons (Protection of Rights) Act, 2019, where Section 3 of the Act prohibits all kinds of discrimination regarding buying, renting, or occupying any property against the transgenders. Nevertheless, the Act itself falls short of addressing the inheritance rights thus, failing to provide any substantive remedy for this issue.

A separate legislative framework that specifically deals with the succession rights will let parliament define relations and heirs of trans-person instead of forcing them to conform to binary genders. As transgenders in India are a diverse community having different customary kinship structures  and inheritance framework, these customs need to be recognised rather than forcing the community to subject to any legislatures dealing with succession rights of any particular religion.  Customs of the trans community have been upheld in Sweety (Eunuch) v. General Public where the court granted succession rights on the basis of “Guru-chela”customs paving way for such decisions and policies in future.

Comparatively, Nepal has given recognition to inheritance rights of third gender in Sunil Babu Pant & ors v. Nepal Government. Another neighbouring Pakistan has also recognised in Khaki v. Rawalpindi  that transgenders also possess constitutional rights like inheritance rights and right to life. As these countries have shared history and traditions with India, these examples offer a comparative jurisprudential basis to associate inheritance rights of transgenders to constitutional values providing millions with necessary  rights.

Conclusion

The trajectory mapped above reveals that the discrimination against transgenders in the Hindu inheritance laws is not incidental, but is a result of centuries-old bias against the trans-people in Dharmic laws. The exclusion under Dharmashastric laws hardened over time, and this deepened even more during colonial times as penal laws and other binary institutions reinforced the same gender biased hierarchies. This bias has even found its way in the laws of modern independent India. After the aforementioned landmark judgments of the Supreme Court, the exclusion of non-binary genders from ancient times has lost constitutional validity. Now, the onus lies on the Parliament to break away from these centuries-old binary gender notions by introducing legislation that cements their inheritance rights and including non-binary viewpoints in the Hindu Succession Act, 1956, enabling two million transgender people to exercise their right to inherit property, and achieve the economic and social justice that the Constitution promises them.

*Utkarsh Chaudhary is a second- year law student pursuing B.A. LL.B.(Hons.) at Dharmashastra National Law University, Jabalpur.

The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.