Open Access Research Article
PROPERTY RIGHTS FOR TRANSGENDERS COMMUNITY IN INDIA BY: GOURIKA AGANPAL
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Article Details
PROPERTY
RIGHTS FOR TRANSGENDERS COMMUNITY IN INDIA
AUTHORED BY: GOURIKA AGANPAL[1]
BBA. LLB 1st year
URN: 2371008
ABSTRACT
Property rights are fundamental to
the socio-economic empowerment and well-being of individuals, yet for
transgender communities in India, securing these rights remains a formidable
challenge. In India, the transgender community faces significant socio-economic
challenges, including discrimination, marginalization, and limited access to
basic rights. Among these rights, property ownership and inheritance remain
crucial yet often overlooked aspects of transgender individuals' lives.
This research paper delves into the
intricate landscape of property rights for transgender individuals in India,
exploring the legal, social, and cultural dimensions that shape their access to
and ownership of property. This research paper aims to explore the complexities
surrounding property rights for the transgender community in India, shedding
light on the legal framework, societal attitudes, and practical obstacles they
encounter.
The paper begins by providing a
comprehensive overview of the legal landscape pertaining to property rights for
transgender persons in India, analysing relevant statutes, case law, and policy
frameworks. It delves into the historical context and evolution of laws
concerning transgender rights, highlighting both progress and persisting gaps
in legal recognition and Furthermore, the paper explores advocacy efforts,
grassroots initiatives, and policy recommendations aimed at advancing property
rights for the transgender community in India. It underscores the importance of
legal reforms, awareness campaigns, and community empowerment in fostering
inclusive and equitable access to property rights.
KEYWORDS: Transgender, Transgender Rights, Inheritance
Rights & Property Rights
INTRODUCTION
Transgender people are the people who
are very different form the gender norms. It is the community which is most
marginalised community in the country. It means it is the term which means the
individual whose gender identity is not same as male and female. They do not
fall under stereotypical categories of gender binary.[2]
They have faced discrimination, social oppression and physical violence as
society has failed to accept their gender identity. Their inborn perseverance
of gender turns out to be different from their bodily features. They identified
as Transgender, transsexual and Hijra. Since the beginning of human
civilisation, the existence of transgenders people has been acknowledged but
they have lacking subsequent approval from ordinary society. Even in 21st
Century these individuals are seen as taboo and they are subjected to
harassment. They are characterised as shame and stigma in both public and private
sector. [3]
But now they have recognised as third
gender and permitted to legal shield under law. The Govt. has enacted
Transgender Person (protection of right) Act, 2019 to protect from the
discrimination and provide them equal rights in area of education, employment,
and health services.
And if we talk about the term “Property”,
it may be defined as movable or immovable property that is owned by a person or
individual or group of person or group of individuals. And in the context of
transgender, they are not accepted as family member in their own family therefore,
they are not even having coparcener right in their joint Hindu Family with
their gender identity nor as a legal heir of their parent’s separate family.
PROPERTY
RIGHTS OF TRANSGENDER
COMMUNITY
IN INDIA
In India, there are many properties
rights issue that is faced by transgenders. Even they are not allowed to own a
property on rent. They do have ownership rights based on equality as they
treated as third gender but are they have any right to protect their property
because their legal right is not much stronger as compare to other gender
binary. It is nowhere mention under Transgender Person (protection of right)
Act, 2019 nor is it mentioned in Transfer Property Act 2019. In the Transgender Person (protection of
right) Act 2019 enacted to made a decent effort to protect their rights and to
promoted their welfare as they are facing discrimination on the grounds of
education, medical facilities, healthcare, movement, access to good and
services, choice of profession etc. Basically, the act has enacted to get rid
of unfair treatment regarding the right to reside, purchase or rent or
otherwise owned any property.
Under section 4(2) of the act
provides the right to self-perceived gender identity. Section 5 of the act that
a transgender person could be perceived as third gender (transgender) by making
an application to the District Magistrate for issuing a certificated of
identity as a transgender person. But there is a big loophole in this act that
it is not dealing with any property rights of transgenders.[4]
TRANSGENDER
PERSONS (PROTECTION OF RIGHTS) BILLS, 2016
In the judgement of National Legal
Service Authority Versus Union of India[5] it
is held that the transgender community treated unequal in the society
therefore, it introduced with legal protection for the transgender community as
they recognised as third gender but the ongoing violation of rights of
transgenders persons under Article 14, 15, 16, 19 and 21 of the Constitution of
India and also laid down several guidelines for state and central
government to provide them actualisation
of rights to transgender persons.
“We, therefore, hold that values of
privacy, self-identity, autonomy and personal integrity are fundamental rights
guaranteed to members of the transgender community under Article 19(1)(a) of
the Constitution of India and the State is bound to protect and recognize those
rights.” [6]
After the judgement of this case the
Transgender Persons (Protection of Right) Bill was introduced in Lok Sabha in
the year 2016. And in this bill, there are various chapters that are dealing
with rights of transgenders. In some sections, it is mentioned that transgender
person should not be separated from their family and immediate family on the
ground of their gender identity. It is also provided that they can enjoy the
rights of household and use all the facilities available in the house. In this
bill Lok Sabha talks about the transgender right to residence but does not talk
about their inheritance rights. This bill needs many amendments as transgenders
are the citizen of India and should be concerned with their Human and Legal
Rights as third gender. The court also
held that State and Centre Government must varied social Schemes for third
gender community and run public awareness campaign to erase social stigma. The
state must construct special toilets and departments to investigate their
special medical issues.
In the famous case Navtej Singh Johar
Versus Union of India[7]
2018 in this case Supreme Court said that Transgenders are having history.
History owns an apology to the member of this community and their families for
delay in providing redressal for ostracism.
The member of this community must
claim to live a life full of fear of reprisal and persecution. This war an
account of the ignorance of the majority to recognise that homosexuality is a
completely natural condition part of a range of human sexuality. As fundamental
rights are equal for all citizen no matter who we are male, female or third
gender.
THE
CONSTITUTION OF INDIA
It talks about fundamental rights of
every Individual. The Constitution of India is “Sex Blind”. It means that the
basic premise of equality before law and equal protection of law is based on a
Constitutional mandate that the sex of a person is irrelevant Article 14 of the
Constitution of India states that the State shall not deny "to any
person" equality before the law or equal protection of the law within the
territory of India. The term "all persons" includes transgender
persons. And Article 15 prohibits gender discrimination against all citizens.
Not recognizing the identity of transgender/hijra people leads to a systematic
denial of equal rights and equal legal protection. Article 19 (1) (a) of the
Constitution of India describes that all citizens have the right to freedom of
speech and expression. It guarantees one of the most basic human rights. Thus,
expressing and conforming to one's gender is an obvious derivative of Article
19(1)(a). Denying the right to express one's gender identity through speech and
to choose a romantic/sexual partner would lead to a violation of Article 19.
Interestingly, the Births and Deaths
Registration Act 1969 says nothing about the 'sex' of the person being
registered at the time of birth or death. The law is gender neutral. The
obligation to indicate gender on the birth or death certificate in the case of
birth or death does not appear to arise from the provisions of this law per se.
Such requirements can be included in the format of the certificate provided for
in the legal regulations adopted by each country.
INHERITANCE
RIGHTS
Property rights are
a crucial component of respectful rights laws. Still,
these rights have regularly avoided the transgender
community due to the property legacy law in India being established in twofold sexual orientation classifications.
For occurrence, the Hindu Progression Act of 2005 entirely recognizes male and
female beneficiaries and their arrange of progression.
Indeed, the Indian Progression Act of 1925, with
its gender-neutral wording, shows gender-based disparities within the arrange of progression. Transgender people, despite experiencing gender-reassignment
surgery and upgrading their documentation, frequently confront deterrents in securing in Inheritance
property due to bias and the failure to find reasonable successors.
Whereas Uttar Pradesh took
a step towards advance in 2020 by giving Inheritance rights to transgender people for rural property, a broader redesign of property laws is fundamental to guarantee full uniformity in Inheritance property.
THE GURU CHELA SYSTEM
The court
recognized inheritance rights within the Guru Chela system and recognized the
Guru Chela as a customary group. However, property rights within this system
are entirely at the discretion of the guru. Government-supported housing
programs and priority housing allocation for transgender people are urgently
needed to address this issue. Madhya Pradesh was the only state to recommend
appropriate housing for transgender people as part of its state policy in 2020.
THE ROLE OF
NALSA AND INTERNATIONAL LAW
The Incomparable Court's NALSA judgment recognized that
transgender persons' avoidance from legacy and progression laws damages sacred standards of balance. The Transgender People (Security of Rights) Act of
2019 forbids segregation against transgender
people with respect to their lodging rights.
Be that as it may, not one or the
other the NALSA judgment[8] nor the 2019 Act unequivocally addresses legacy rights or gives lodging concessions. Hence, India must adjust its approach with worldwide law. As stipulated
in Article 11(1) of the ICESCR, satisfactory lodging offices ought to be open to all, notwithstanding of sex personality. The Incomparable Court ruled in
NALSA v. Union of India[9]
that sex personality is decided by an individual's
choice. In any case, a government survey carried out in
Kerala uncovered that 76% of
transgender individuals were incapable to enlist their seen sexual orientation characters. 81% of individuals yearned to alter their sexual orientation character but needed arrange of bolster. Transgender individuals will not be able to
state lawful rights like legacy get to unless they are allowed to recognize agreeing to their inclinations and get distinguishing
proof in line with those inclinations.
CONCLUSION
They do have ownership rights based
on adjustment as they are treated as third sexual introduction, but do they
have any right to guarantee their property since their lawful right isn't much
more grounded as compared to other sex twofold. It is not indicated underneath
Transgender Person (security of right) Act, 2019 nor it's said in Trade
Property Act 2019. Inside the Transgender Person (affirmation of right) Act
2019 endorsed to form distant better; a much better; higher; stronger; an
improved'' a distant better than normal effort to secure their rights and to
progress their welfare as they are standing up to isolation on the grounds of
instruction, helpful workplaces, healthcare, advancement, get too great and
administrations, choice of calling etc. Underneath region 4(2) of the act gives
the correct to self-perceived sex character. Section 5 of the act that a
transgender person may be seen as a third sexual introduction (transgender) by
making an application to the District Judge for issuing a certificate of
character as a transgender person. But there's a huge elude clause in this act
that it isn't overseeing with any property rights of transgenders. Transgender
Individuals (Assurance of Rights) Bills, 2016 Inside the judgment of National
True blue Advantage Pro Versus Union of India it is held that the transgender
community treated unequal within the society in this way, it displayed with
legal affirmation for the transgender community as they seen as third sex but
the progressing encroachment of rights of transgenders individuals underneath
Article 14, 15, 16, 19 and 21 of the Structure of India conjointly laid down
some rules for state and central government to supply them actualisation of
rights to transgender individuals. “We, consequently, hold that values of
assurance, self-identity, autonomy and individual judgment are vital rights
guaranteed to people of the transgender community underneath Article 19(1)(a)
of the Structure of India and the State is bound to guarantee and recognize
those rights.” After the judgment of this case the Transgender Individuals
(Security of Right) Charge was presented in Lok Sabha inside the year 2016. In
several ranges, it is said that person
got to not be confined from their family and speedy family on the ground of
their sexual introduction character. This charge needs various modifications as
transgenders are the citizen of India and must be concerned with their Human
and Lawful Rights as third sex. The court as well held that State and Middle
Government must move social Plans for third sexual introduction community and
run open mindfulness campaign to erase social disgrace. As fundamental rights
are broken indeed for all citizens no matter who we are male, female or third sex.
The Structure of India It talks nearly basic rights of everyone. It suggests
that the basic preface of correspondence a few times as of late law and rise to
security of law is based on a Protected command that the sex of a person is
insignificant Article 14 of the Structure of India states that the State should
not deny ''to any person '' correspondence a few times as of late the law or
rise to affirmation of the law interior the space of India and Article 15
forbids sexual orientation isolation against all citizens. Not recognizing the
character of transgender/hijra people leads to an efficient dissent of rise to
rights and rise to lawful security. Article 19 (1) (a) of the Structure of
India portrays that all citizens have the correct to flexibility of discourse
and expression. Denying to the specific one's sexual introduction personality
through talk and to select a sexual assistant would lead to an encroachment of
Article 19. Still, these rights have routinely maintained a strategic distance
from the transgender community due to the property bequest law in India being
built up in twofold sexual presentation classifications.
There is an urgency of addressing
property rights for transgender individuals as a fundamental aspect of their
dignity, autonomy, and social inclusion in Indian society. By advocating for
legal reforms and fostering societal acceptance, stakeholders can work towards
ensuring that all individuals, regardless of gender identity, enjoy equal
rights and opportunities in property ownership and inheritance.
JUDGMENTS RAEFORD
1. NALSA vs.
Union of India (2014): The Supreme Court ruled that transgender people
should be recognized as third gender and must be allowed to enjoy all the
Fundamental Rights.
2. Navtej
Singh Johar v. Union of India (2018): Section 377 provides punishment
for unnatural offences, and this impediment was used as an instrument to harass
them. Due to their relatively insignificant numbers, they were less noticed.
However, the Supreme Court, in this case, decriminalized the so called
“unnatural offences” under the Section.
Suggestions
All the laws should
be the same for them, like for example inherited property rights, voting
rights, etc should be there for them as well. Moreover if our education system
and more systems like government exams and all happen in a format like in Lok
Sabha there are reserved seats for General, SC (Scheduled Castes), ST (scheduled
Tribes) and OBC (Other Backward Class) then why can`t we have reserved seats
for them. in our education system also, we have reserved seats for all the
categories then why not for them as they are a part of our society and now Tho
we also accept them as third gender then why not give the equal rights and
equal reserved seats like us.
[1] The author is a student of First
year.
[3] https://lexpeeps.in/transgender-property-rights/
[4] https://lexpeeps.in/transgender-property-rights/
[5] https://privacylibrary.ccgnlud.org/case/national-legal-services-authority-vs-union-of-india#:~:text=The%20Court%20held%20that%20in,the%20rights%20of%20the%20community.
[6] https://privacylibrary.ccgnlud.org/case/national-legal-services-authority-vs-union-of-india#:~:text=The%20Court%20held%20that%20in,the%20rights%20of%20the%20community.
[7] Navtej Singh Johar v. Union of
India (2018)
[8] Navtej Singh Johar v. Union of
India (2018): Section 377 provides punishment for unnatural offences, and this
impediment was used as an instrument to harass them. Due to their relatively
insignificant numbers, they were less noticed. However, the Supreme Court, in
this case, decriminalized the so called “unnatural offences” under the Section.
[9] The Supreme Court ruled that
transgender people should be recognized as third gender and must be allowed to
enjoy all the Fundamental Rights.
Article Information
PROPERTY RIGHTS FOR TRANSGENDERS COMMUNITY IN INDIA BY: GOURIKA AGANPAL
Authors: GOURIKA AGANPAL
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/03/02
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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