NATIONAL LAW UNIVERSITY, JODHPUR

PROJECT: RESEARCH METHODOLGY

TOPIC:

Critical Analysis of the Current Scenario of Transgender Rights in

India

SUBMITTED BY:

Siddhi Singhal

Sukanya Subramanian

LL.M. I (Corporate Law) (2022-23)

SUBMITTED TO

Prof. Siddharth Balani

1
Table of Contents
INTRODUCTION ............................................................................................. 3

RESEARCH OBJECTIVE................................................................................. 3

RESEARCH SCOPE ......................................................................................... 4

STATEMENT OF PROBLEM .......................................................................... 4

LITERATURE REVIEW .................................................................................. 5

RESEARCH METHODOLOGY ....................................................................... 7

CENTRAL ARGUMENT .................................................................................. 7

RESEARCH QUESTIONS ................................................................................ 8

CHAPTERISATION ......................................................................................... 8

CRITICAL ANALYSIS .................................................................................... 8

CHAPTER I: PROTECTION OF TRANSGENDERS BY CRIMINAL LAWS ...... 8

PRISONERS .......................................................................................................................... 8

SEXUAL HARRASSMENT ............................................................................................. 10

CHAPTER II: STANDPOINT OF PERSONAL LAWS ON TRANSGENDERS .. 13

MARRIAGE ......................................................................................................................... 13

INHERITANCE. ................................................................................................................. 14

RESULT OUTCOME: CONCLUSION AND SUGGESTIONS ...................... 16

BIBLIOGRAPHY ............................................................................................ 17
ARTICLES ............................................................................................................... 17

CASES ...................................................................................................................... 18

CONSTITUTION ..................................................................................................... 18

INTERNATIONAL CONVENTION/TREATY ...................................................... 18

STATUTES............................................................................................................... 18

2
INTRODUCTION
Transgender are those people who defy norms that have been set by the society with regard to
the gender and the behavior and appearances according to such genders as preconceived by
the society. It is now understood that a transgender means a person who does not confirm
with the gender assigned at birth and includes trans-man and trans-woman, whether or not
they underwent treatment for sex-reorganization or hormone therapy or otherwise, persons
who at birth show variation in their primary or secondary sexual characteristics, genderqueer
and persons having socio-cultural identities such as kinner, hijra, aravani and jogta. The term
transgender is an umbrella definition intending to bring several aspects of gender recognition
and person with intersex variations. Although, they have peacefully existed with the society
prior to the British colonization, several legislations enacted by the Crown were targeted
towards the transgender and branded them as criminals. Their social status further
deteriorated and they became marginalized and vulnerable to harassment and discrimination.
In furtherance of several protests and movements, a petition was filed before the Supreme
Court by NALSA for the recognition of transgender as a third gender, which was upheld by
the Court and declared that they must be treated as third gender, for the purpose of protecting
their fundamental rights under the Constitution. The Supreme Court asserted that now it’s
high time for the Government to end its viewing of transgender as a social stigma in and
encourage the equal protection of transgender under Article 14, 19 and 21 of the Constitution.
The Parliament enacted the Transgender (Protection of Rights) Act in 2019 in furtherance
of the Supreme Court judgement, however, it also has various lacunas which is not able to
protect the fundamental as well as human rights of the transgender community.

RESEARCH OBJECTIVE
 To determine the actual status of protection of marital rights of the transgender
community by the statutes and the judgements that have been delivered by Hon’ble
Courts.
 To ascertain the right of transgender to inherit the property of their family members
under the personal laws.
 To determine the action taken by Central Government as well as State Government
against the discrimination and harassment faced by the transgender prisoners in the
prison.

3
  To assess the standpoint of the legislature as well as Judiciary on the sexual offences
against the transgenders in India.

RESEARCH SCOPE
Despite the recognition of the third gender by the Apex Court in 2014, the transgender
community still face harassment and discrimination in the society. The researcher has
adopted a methodology of identifying the scope of rights which are yet to be accepted to be
applicable to the transgender community through careful analysis of now prevailing legal
positions, especially in the sphere of family and criminal law matters, by interpretation and
reasoning rooted in the Indian Constitution. The researcher has adopted doctrinal method of
research.

STATEMENT OF PROBLEM
There is no doubt to the fact that the legislative organ of the country has enacted the
Transgender Persons (Protection of Rights) Act 2019 to endorse the rights of transgenders,
however, it is also important to note that despite this, the legislature is unable to demonstrate
the scope of the concerned notion. Additionally, certain rights for transgenders have still not
been acknowledged by the legislatures as well as judiciary because of the jurisdiction's one-
dimensional comprehension of the notion, which makes it impossible to understand its core
that once again fosters the violation of the rights of transgender by the pillars of the
democracy that further lead to increment in the instances of physical as well as sexual
violence against this community. In fact, not just as a victim but also as the prisoners the
transgender community is facing discrimination which is one of the major concerns.
Furthermore, the third gender community is not able to enjoy the marital relationship despite
of having the right to self-determination and self-identity as every law is explicitly talking
about the relationship of man and woman. Hence it is important to assess such loopholes that
revolving around the technicality of “gender” assigned by the state and failure of considering
transgender as a third gender under various legislations, the terms assigning gender if not
amended to include transgender will lead to violation of their rights which needs to be curbed
by the legislature as well as judiciary considering there are many rights interwoven with their
constitution rights and human rights.

4
LITERATURE REVIEW
This particular research paper has been brought about as a result of enormous readings and
thorough research brought into being, through the support of various honorary research
papers, and articles analyzed by reputed jurists and academicians who have brought into fore,
their entire understanding with regard to the rights of transgenders. The field pertaining to
ensuring the granting of right in every arena, especially with regard to the field of research,
while keeping in mind various legislations which is gender centric in nature. Having said that,
this research paper focuses on the loopholes revolving around the technicality of “gender”
assigned by the state and failure of considering transgender as a third gender under various
legislations, the terms assigning gender if not amended to include transgender will lead to
violation of their rights. A large number of academicians and students have brought forth
their perspectives on the human rights as well as constitutional rights of transgenders that
have already been acknowledged by the by the State and its organs, and some have realized
the importance of other rights on which the State is yet to look into. However, it would also
be imperative to mention that these learned members also failed to cover certain aspects in
their honorary pieces of work. A summarized version of these reputed pieces of work can be
enumerated under the following descriptions:

Transgender: Identity and Rights

By Shubhanshi Suman

Shubhanshi Suman, Transgender: Identity and Rights, 2 Jus Corpus L.J. 539 (2022)

This work of research is inherently based on an understanding of the sociological aspect of

the trans community, while also keeping in mind the Transgender Protection Bill into
consideration. What came across as particularly encouraging was her emphasis on the vertical
as well as horizontal reservation to the transgender community that has been provided by the
Constitution of India along with the focus towards the sexual offences against this
community. While keeping in mind the aforementioned observations, it would also be
pertinent to mention the various flaws enumerated in this piece of research, which lacks the
much-required discussion on the need for granting the right to this third gender community
pertaining to inheritance, marriage. Her lack of analysis with regard to the aspect of prisoner
rights which has been ignored directly or indirectly is also what seems to be extraordinarily
missing in this piece of research, which to a great extent, has been covered by the current
research paper.
5
 Transgender Rights- An Ongoing Wrangle

By Indra Kumar Lahoti and Nitisha Agrawal

Indra Kumar Lahoti and Nitisha Agrawal, Transgender Rights- An Ongoing Wrangle, 9(2)
NLIU L. Rev. 540 (2020)

The aforementioned paper has been published by the law review of National Law Institute of
University, wherein the researchers cover almost all aspects with regard to the personal law.
This paper also greatly analyzes the Transgender Persons Act 2019 as well as the judgement
of NALSA vs. Union of India while taking the educational, employment rights into
consideration. Keeping in mind the various flaws prominent within this research paper, this
paper has however failed to deliberate further on the laws pertaining to the criminal offences
as well as prisoner rights which has been covered extensively in this present paper.

Comment at the Margins: Preliminary Notes on Transgender Prisoners in

India

By Deekshitha Ganesan and Saumya Dadoo

Deekshitha Ganesan and Saumya Dadoo, Comment at the Margins: Preliminary Notes on
Transgender Prisoners in India, 13(3) NUJS L. Rev. 1-19 (2020)

The aforementioned paper has been published by the law review of National University of
Juridical Sciences, wherein the researchers cover almost all aspects of the rules, legislations
pertaining to the prisoners related to the status of transgender as this community faces lot of
harms in the prisons. Keeping in mind the various flaws prominent within this research paper,
this paper has however failed to deliberate further on the other criminal offences that could be
happen against the transgender specially the sexual offences. It also fails to provide a stance
of the same with regard to the marriage rights and inheritance rights that has only been dealt
by the personal laws which has been covered extensively in this present paper.

Gender Inequality in Criminal Laws: A Denial of Rights to Men and

Transgender

By Aditi and Mordhwaj

6
Aditi and Mordhwaj, Gender Inequality in Criminal Laws: A Denial of Rights to Men and
Transgender, 24 Supremo Amicus 787 (2021)

The aforementioned piece of research was published in Supremo Amicus wherein the author
deliberates on the criminal laws specially the laws related to the sexual offences that are
ignorant towards third gender community. It also plays an imperative role in concentrating
upon the Transgender Protection Act 2019. What is however disappointing in this extensive
work of research is that it fails to analyze the rights of transgender as a prisoner which is
available to other genders. It also fails to acknowledge the rights regarding marriage and
inheritance which has been provided in personal laws. The current piece of research analyzes
all the aforementioned concepts in detail.

RESEARCH METHODOLOGY
The current research paper is the doctrinal research which is the result of an analytical and
critical study that has been completed with the support of secondary data which is the
compilation of relevant statutes, research papers and articles of learned members and students
of the society, newspaper articles and web sources, cases etc. It is pertinent to mention that
major portions of the current research paper have concentrated on determining the availability
of rights to the transgenders by the legislatures as well as Judiciary of India. Several other
documents have been referred whilst writing this paper with an intention to understand the
standpoint of Central Government as well as State Government with regard to the human
rights as well as constitutional rights of the third gender. Having mentioned the same, the
conclusion with regard to the stand of India on the rights provided under criminal laws as
well as personal laws that have been critically examined in order to states some suggestions
that should be taken into consideration by the pillars of democracy in order to ensure the
protection of rights of transgenders.

CENTRAL ARGUMENT
The unreasonable standard or pre-conceived notion of society in regard to gender-based
aspects and the failure of the legislations to recognize the importance of defining gender -
neutral rights along with the lack of focus by judiciary on certain aspects revolving around
third gender rights led to the violation of the fundamental rights and human rights of those
who do not fall under such norms as well as scope of defined by aforementioned organs of
democracy.

7
RESEARCH QUESTIONS
The current piece of research is based on various legal issues pertaining to the rights of
transgenders. The same can be enumerated under the following:

 Whether the legislature as well as Judiciary has successfully protected the Human
Rights and Constitutional Rights of transgenders with regard to marriage?
 Whether the transgender prisoners are facing discrimination due to the ignorance of
Central and State Government?
 Whether the “third gender” community has the equal right to inherit the property
under any personal laws which other genders have?
 Whether the current legislatures pertaining to the criminal offences are protecting the
dignity of transgenders from any sexual abuse or harassment?

CHAPTERISATION
CHAPTER I: AN ANALYSIS OF THE TRANSGENDER RIGHTS WITH REGARD TO
THE CRIMINAL LAWS

CHAPTER II: ANALYSIS OF THE RIGHTS OF TRANSGENDERS REGARDING

PERSONAL LAWS

CRITICAL ANALYSIS
Transgenders face lot of criticisms and societal discriminations along with the physical abuse
as they do not abide by the norms of society which makes the acceptance of this community
in the society difficult. Hence, the Indian Constitution has granted transgender people several
fundamental as well as Constitutional rights. Even, the Hon’ble Supreme Court has accorded
them the right to be recognized as “third gender” along with various welfare mechanism.
However, this community is still struggling relating to certain rights.

CHAPTER I: PROTECTION OF TRANSGENDERS BY CRIMINAL LAWS

PRISONERS
It is a well-known fact that the most recent information about the prisons in India and the
prisoners were available in the National Crime Record Bureau Annual Prison Statistics in
which various data with regard to the categories of male and female has been mentioned in a
proper and segregated manner where unfortunately transgenders has found no place from any
Government leading to violation of their right to self-identify gender as well as non-

8
recognition of this third gender in the prisons which ends up making them highly accessible
to the criminal offences including sexual offences by the jail inmates as well as police. 1 It is
very saddened to state that this is the situation even after having the landmark judgement of
the Hon’ble Apex Court in National Legal Services Authority of India vs. Union of India 2
opined that no medical treatment or evaluation shall be the requirement for self-identification
while acknowledging the right to self-identity gender and suggested the Central Government
as well as State Government to confer the legal recognition of sexual orientation as third
gender along with man and woman.

There is no doubt to the fact that there is a specific law with regard to the responsibility of
governing or maintaining the prisons of India which has been named under the Prisons Act
1894,3 however, this Act also fails to recognize the right of transgender pertaining to the self-
determination as according to the provision under this act it is important to maintain three
documents related to the prisoners in which there is a separate column about the gender
identity and considering in the present manual or under this act no separate categorisation of
transgender has being made, hence, the entire procedure that needs to be followed by the jail
authority will be hampered because of misgendering. Not just this, the issue regarding this
misgendering leads to the increment in cases of sexual as well as physical harassment against
the transgender prisoners in case they need to share the same prison with either male or
female prisoners. Even though various states like Tamil Nadu or Karnataka claimed that the
prison authorities have the strict instructions to guarantee the comfort to transgenders in the
prison by placing them in different wards then male or female prisoners, however, it also has
been witness that they are not able to understand the difference between separate cell and
separate word considering in 2016 the Bangalore Central Prison asserted that the transgender
has been placed in a separate cell rather than separate ward.4

It is imperative to note that every prisoner has the fundamental right to live with human
dignity even in jail as per Article 21 of the Constitution. Even, the Hon’ble Supreme Court in
the case of State of Andhra Pradesh vs. Challa Ramakrishna Reddy 5 asserted that right to
life with human dignity is a basic human right that cannot be suspended even in jail as

1
Gursimran Bakshi, Access to Justice Denied: A Case of Double Marginality of Transgender Prisoners in India,
Cambridge University HR Law Soc., (Oct. 14th, 2022, 9:00 PM), [Link]
denied-a-case-of-double-marginality-of-transgender-prisoners-in-india
2
National Legal Services Authority of India vs. Union of India, AIR 2014 SC 1863
3
Prisons Act, 1894, No. 9, Acts of Parliament, 1894 (India)
4
Deeksitha Ganesan, Saumya Dadoo, Confinement at the Margins: Preliminary Notes on Transgender Prisoners
in India, 13 NUJS L. Rev. 1 (2020).
5
State of Andhra Pradesh vs. Challa Ramakrishna Reddy, AIR 1994 SC 2663

9
prisoners does not cease to be a human being in prison. However, it seems like the Judiciary
as well as Executive forget about this aspect specially when it comes to the transgender
prisoners as these organs of the democracy along with the other authorities have failed to
understand that this kind of improper confinement could violate the autonomy as well as
privacy of transgenders which is their fundamental rights under Article 21 of the
Constitution6 of India that cannot be infringed under any circumstances. The Hon’ble
Supreme Court in the case of Navtej Singh Johar vs. Union of India7 observed that the right
to sexual autonomy is a vital element of the right to life and liberty as per Article 21 of the
Constitution. Additionally, the particular medical requirements of the transgender prisoners
have not been taken care of in a proper manner because according to Section 24 of the
Prisoners Act, 18948 in case of medical examination of criminal transgender, the medical
professionals with the expertise in sexual orientation and gender identity should assist entire
procedure in order to prevent any kind of exploitation against the third gender. Furthermore,
it has been witnessed that the discrimination has been made against the transgender several
times even after the enactment of Transgender Persons (Protection of Rights) Act, 20199
or the binding judgement of Supreme Court, the third gender community under the Training
Manual of Basic Courses for Prison Officers, 2017 has been regarded as an unspecified
special category of business instead of getting special treatment or therapy for their hormonal
changes.10 Hence, it can be concluded that the legal framework is unresponsive and
inconsistent when it comes to addressing the issues of the transgender prisoners considering
the pillars of the democracy are ignorant towards the hyper visibility of transgender that
could jeopardize their physical as well as sexual dignity.

SEXUAL HARRASSMENT
Sexual harassment offences, including sexual offences, require careful consideration for the
protection of transgender from sexual harassment. On the other hand, Protection of Children
against of Sexual Offences Act, 2012 is gender-neutral and any “child who is below 18
years of age” is a victim under the said Act, thus including a transgender child too. Section
18 of the Transgender (Protection of Rights) Act, 2019 envisages only an imprisonment

6
INDIA CONST., art. 21
7
Navtej Singh Johar vs. Union of India, (2018) 10 SCC 1
8
Prisons Act, 1894, § 24, No. 9, Acts of Parliament, 1894 (India)
9
Transgenders Persons (Protection of Rights) Act, 2019, No. 40, Acts of Parliament, 2019 (India)
10
Dr. Shannu Narayan, Envisaging Inclusiveness through Transgender Person's Rights Law in India, 4 Int. J.L.
Mgmt. & Human 404, (2021).

10
for maximum 2 years in case of sexual abuse committed against a transgender 11. The Delhi
High Court in the case Anamika vs. Union of India12, held that Section 354-A of the
Indian Penal Code, 1860 that deals with sexual harassment made by a male to a transgender
will be liable under Section 354-A, in light of the NALSA judgment and the gender-neutral
language of the provision. Although the provision employs gender-neutral language by using
the term “whoever”, the scope of punishment under the said Act is not at all par with India’s
other penal provisions for sexual abuse in the IPC and to name a few:

[Link] PENAL PROVISION NATURE OF GENDER MAXIMUM

UNDER IPC OFFENCE OF THE PUNISHMENT
VICTIM UNDER IPC
1. 35413 Assault to women with Woman 5 years
intention to outrage
modesty
2 354-B14 Assault to woman with Woman 7 years
intent to disrobe
3 354-C15 Voyeurism Woman 3 years on first instance
16
4. 354-D Stalking Woman 3 years on first
instance.
5. 37617 Rape Woman 10 years minimum
punishment, extending
till life.
18
6. 376(2) Custodial Rape Woman Imprisonment till the
reminder of natural
life.
7. 376 D19 Gang Rape Woman Imprisonment till the
reminder of natural
life.

11
Shubhanshi Suman, Transgender: Identity and Rights, 2 Jus Corpus L.J. 539 (2022).
12
Anamika vs. Union of India, W.P. (CRL) 2537/2018 (DL).
13
The Indian Penal Code, §354, No. 45 Acts of Parliament, 1860 (India).
14
The Indian Penal Code, §354-B, No. 45 Acts of Parliament, 1860 (India).
15
The Indian Penal Code, §354-C, No. 45 Acts of Parliament, 1860 (India).
16
The Indian Penal Code, §354-D, No. 45 Acts of Parliament, 1860 (India).
17
The Indian Penal Code, §376, cl. 1, No. 45 Acts of Parliament, 1860 (India).
18
The Indian Penal Code, §376, cl. 2, No. 45 Acts of Parliament, 1860 (India).
19
The Indian Penal Code, §376-D, No. 45 Acts of Parliament, 1860 (India).

11
Section 10 of the IPC defines “man” and “woman” by assigning gender indicative terms as
“male human being” and ‘female human being”, respectively 20. Therefore, the above-
mentioned provisions are applicable only if the victim is a female and does not recognize
transgender or third gender as a victim21. The Parliament has enacted the Sexual Harassment
of Woman at Workplace (Prevention, Prohibition and Redressal) Act, 2013 to prevent
the occurrence of sexual harassment at workplace against women and mandates constitution
of Internal Compliant Committee. On the other hand, under Section 9 (2) of the
Transgender (Protection of Rights) Act, 2019 though mandates every establishment to
have a complaint officer to hear the violations under the said Act 22, the legislation is not
catering to the qualification of such compliant officer.

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is a
socio-welfare legislation enacted by the Parliament to protect the members of Scheduled
Castes (“SC”) and Scheduled Tribes (“ST”) from all forms of abuse, including sexual abuse,
by members belonging to other communities. However, IPC recognizes the offence of “rape”
in terms of gender definition and this gap whole together leave out the sexual offence of rape
faced by transgender SC or ST member. It is important to keep doctrine of intersectionality as
upheld by the Supreme Court in Patan Jamal Vali vs. State of Andhra Pradesh 23, “where
oppression operates in intersectional function, it becomes difficult to identify on which
ground the oppression was based on because it operates on multiple grounds alongside”. A
transgender SC or ST member will have multiple grounds or reasons to have the oppression
inflicted on: caste, gender, disability, age and the Act was enacted to protect the members of
SCT and ST from oppression. However, it also needs to be taken into consideration that
Immoral Traffic Prevention Act criminalizes the intimidation or any forceful act towards the
transgenders sex workers. Hence, the legislature has not completely failed in fulfilling its
duty but it is also important for this pillar of democracy to ensure the same kind of protection
to transgender against sexual offences in other laws.

20
The Indian Penal Code, §10, No. 45 Acts of Parliament, 1860 (India).
21
Aditi and Mordhwaj, Gender Inequality in Criminal Laws – A Denial of Rights to Men and Transgender, 24
Supremo Amicus 787 (2021).
22
The Protection of Transgender Rights Act, §9, cl.2, No. 40 Acts of Parliament, 2019 (India).
23
Patan Vali Jamal vs. State of Andhra Pradesh, (2021) SCCOnline SC 343.

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CHAPTER II: STANDPOINT OF PERSONAL LAWS ON TRANSGENDERS
MARRIAGE
Right to marry is a human right under Article 16 of UNHRC 24 as well as the fundamental
rights that fall under the categories of life and personal liberty which has been stated under
Article 21 of the Constitution.25 Not only this, the right to marry allows people to choose
their spouses according to their own choice and the State is not allowed to restrict this right as
it is a sign of dignity which is again protected under Article 19 of the Constitution 26 as well
as Article 21 of the Constitution 27 as a fundamental right. Hence, keeping such aspect into
consideration it has been witnessed that the legislations with regard to marriage across India
have been evolving in quick manner because of the shifting in the perspectives of the public
on number of related subjects such as gender and sexual orientation in order to ensure the
protection of fundamental rights. Undoubtedly, the executive being one of the important
pillars of the democracy strive to cope up with the rapid development in the laws which could
lead to the number of legal issues, however, unfortunately despite having four legislations on
marriage which are very wide in scope, there seems to be no legislations that permits
transgender people to be married, having family which proves that these legislations are
discriminatory in nature.

It is important to mention that surprisingly, in historical era, the Hindu community has
witnessed several cases with regard to the marriage of transgender like Princess Shikhandi
chose to transformed herself to a man in order to marry her lady love, in spite of which the
validity of marriage had not been shaken.28 Even so, in this progressive era, when the country
has codified personal laws on marriage neither the laws nor the judiciary acknowledged this
right of transgenders considering every law impliedly mentions that the marriage has to be
solemnised between man and woman as the requirements for valid marriage has been
provided for males and females only. It is pertinent to state that the Hon’ble Madras High
Court in the case of Arunkumar vs. Inspector General of Registration 29 after giving the
option to transgender to decide whether she wants to present herself as a man or woman for
marriage related purposes opined that she will be treated as a “bride” under Hindu marriage

24
UNHRC, art. 16
25
Supra note 6
26
INDIA CONST., art. 19
27
Supra note 6.
28
Sireesha Jaddidi & Gunjan Sharma, Position of Transgender in Contemporary India: An Analytical Study, 4
Intl J L. Mgmt. & Human 2754, (2021).
29
Arunkumar vs. Inspector General of Registration, WP(MD) No. 4125 of 2019

13
Act while giving the rational for the same. There is no doubt to the fact that this judgement
holds an important stand in the jurisprudence of India with regard to the marriage of
transgenders, however, it is very saddened to state that this judgement has gotten zero
attention in our country and moreover, the legislature itself failed to recognise this landmark
judgement as in Transgender Persons (Protection of Rights) Act, 201930 which was
enacted after this judgement the interpretation of bride and groom with regard to the
transgenders have not been included that resulted to the ambiguous situation in the country. 31
Furthermore, this judgment of Hon’ble Madras High Court is not binding in every state of the
country and moreover, it only talks about the Hindu law which cannot be applied on other
religion as India is a secular country where every religion has different personal laws
according to their customs and religion whereas legislature as well as Supreme Court are not
ready to recognise the need of such important changes in the society that leads to the
complete violation of the fundamental rights of the transgender community due to such kind
of ignorance of the pillars of the country.

INHERITANCE.
The law of inheritance in India is governed by personal laws of the respective religion,
however, the scope of these inheritance laws does not cover transgender. The Transgender
Persons (Protection of Rights) Act, 2019 though protects the transgender community from
discrimination in education, housing and employment aspects 32, the said Act does not cover
the right to inherit the property under their personal laws. Although considered generally
progressive in comparison to its counterparts Hindu Succession Act, 1956 and Muslim
personal laws, the Indian Succession Act, 1925 also identifies gender in terms of female
and males. Up until the judgement of NALSA vs. Union of India 33, transgender used to
inherit the property by virtue of the gender assigned to them under the birth certificates and
thus sacrificing their identity. The Supreme Court in NALSA case recognized the umbrella
term “transgender” as a third gender for the purposes of enforcing their rights under the
Constitution. However, the Hon’ble Apex Court did not talk about the inheritance rights per
se.

30
Supra Note 9
31
Indra Kumar Lahoti & Nitisha Agrawal, Transgender Rights - An Ongoing Wrangle, 9 NLIU L. Rev. 540
(2020).
32
The Protection of Transgender Rights Act, §3, No. 40 Acts of Parliament, 2019 (India).
33
Supra note 2.

14
It is imperative to mention that the case of Shayara Bano vs. Union of India34, the Supreme
Court of India held that the Muslim Personal Law (Shariat) Application Act, 1937 falls under
the scope of “law” under Article 13(1)35 and Article 13(3) of the Indian Constitution.36 As
a pre-constitution statute, in case the provisions of such Act contravene with Part III of the
Constitution, such provisions will be void to that extent due to the application of doctrine of
eclipse37. Once the statute hits the violation of rights under Part III, such statute will fall
under the judicial scrutiny of the constitutional courts. The exclusion of transgender who
identifies as a “third gender” under the scope of Shariat Application Act, when the legitimacy
and the status of “third gender” is already recognized by the Supreme Court in NALSA
judgement, will violate the provisions of Article 14, 15, 19 and 21 of the Constitution.

There is no doubt to the fact that Article 25 of the Constitution grants every person the
freedom of conscience and freely profess, practice and propagate their religion provided that
it is subject to the constitutional limitations of public order, morality and health and any other
provisions under Part III 38. The “morality” in question here is not what a person, religious
sect or section would mean but it is an implication of the constitutional morality i.e., the
norms of the constitution. The Supreme Court applied the principle of constitutional morality
in Indian Young Lawyers’ Association vs. State of Kerala 39 and Navtej Singh Johar vs.
Union of India40 while interpreting the term morality. Norms under the Constitution include
the basic features of the Constitution as well as provisions of the Constitution. Moreover, the
High Court of Himachal Pradesh in Sweety (Eunuch) vs. General Public41, observed that
Shastric law does not confer inheritance rights upon eunuch while reversing the lower court’s
judgement. Having said that exclusion of transgender from the inheritance laws under the
laws that has been enacted by the State is violation of Article 14, Article 19 and Article 21 of
the Constitution and the basic structure doctrine.

It is important to note that Article 3(A) of the Yogyakarta Principles prohibits State
discrimination on the basis of sexual orientation or gender identity and the State must ensure
all persons are given the legal capacity in civil matters, including equal rights to own, acquire

34
Shayara Bano vs. Union of India, 2017 (9) SCC 1.
35
INDIA CONST., art. 13, cl. 1
36
INDIA CONST., art. 13, cl.3
37
Keshava Madhava Menon vs. State of Bombay, (1951) AIR 128.
38
INDIA CONST., art 25, cl 1.
39
Indian Young Lawyers’ Association vs. State of Kerala, (2017) 10 SCC 689.
40
Supra note 7.
41
Sweety (Eunuch) vs. General Public, (2016) AIR 148 (HP).

15
(including through inheritance), manage, enjoy and dispose of property”42. In NALSA vs.
UOI43, the Supreme Court has held that the Yogyakarta Principles are not in contravention to
the fundamental rights as enshrined in the Indian Constitution and these must be recognized
and followed. The Apex Court applied the rationale in Vishaka and Ors vs. State of
Rajasthan and Ors. 44 to arrive at the above-mentioned conclusion, where if international
convention does not contravene the fundamental rights under the Indian Constitution and “in
harmony its spirit must be read into these fundamental rights provisions such as Article 14,
15, 19 and 21, to enlarge the meaning and content thereof and to promote the object of
constitutional guarantee.” Therefore, in light of ensuring the protection of the fundamental
rights of transgender, it is imperative that the legislature must take appropriate measures to
ensure gender-equality in case of inheritance.

RESULT OUTCOME: CONCLUSION AND SUGGESTIONS

The assignment of gender to applicable subjects under the personal laws and criminal laws
that are in force in India has led to widespread exclusion of transgender from the marriage
laws and laws on inheritance, as well as denial of victim as well as prisoner status under the
criminal laws. Marriage laws assign gender specific roles of “man” and “woman” under
marriage laws of different religion thus invalidating the status of a transgender in matrimonial
bonds. Although the Madras High Court recognized the self-identified gender of transgender
and allowed registration of marriage of transgender under the marriage act. However, after
the identification of third gender by the apex court in NALSA judgement, a new identity of
“third gender” comes into play in the already pre-set gender identified legislations. The
personal laws on inheritance again identifies the heirs and intestate in terms of gender
identified norms. As the laws on inheritance contain codified laws such as inheritance laws
for Hindus, Christians and Parsis and uncodified laws for Muslims, it becomes difficult for a
transgender to claim the right to inheritance under their self-identified genders and are forced
to undertake the state assigned genders.

The criminal laws in India are widely gender-specific and majority of sexual offences are
drafted in order to protect the victims who are women, thus leaves out the victims who are
transgender. Transgender, already being a vulnerable and oppressed community have faced
the abuse, whether physical, sexual, verbal or otherwise from the hands of their oppressor due
42
Principles on the Application of International Human Rights Laws In Relation To Sexual Orientation and
Gender Identity, art. 3, cl A (2006).
43
Supra note 2.
44
Vishaka and Others vs. State of Rajasthan and Others, (1997) 6 SCC 241.

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to their non-adherence to the societal gender norms and identity. Another aspect of non-
recognizing them as a third gender in the penal code is the oppression faced by transgender
who belong to the SC or ST communities. Being already marginalized and further fueled by
caste-based discrimination, they become victims of further abuse. The pitiable state of the
prison rights of transgender is another resultant of the lack of proper gender identification and
improper implementation of measures. The prisons are categorized as “male” and “female”
prisons and they are generally put in such prisons without any regard to their self-identified
gender. Due to the same, they face harassment from the prison inmates as well as prison
officers thus violating their right to dignity and privacy. Hence, certain suggestions have been
enumerated for the perusal of the competent authorities:

 Gender sensitization classes must be conducted for the police, prison officers, other
prison staffs as well as jail inmates and all forms of discrimination must be vehemently
condemned.
 Provision of separate wards to the transgender in every police stations and prisons.
 Inclusion of third gender as a victim for certain sexual offences under the India Penal
Code, 1860 and under the SC &ST (Prevention of Atrocities) Act, 1989.
 The applicability of Uniform Civil Code which is also an Article of the Constitution but
as a part of Directive Principle of State Policy which unfortunately, cannot been
enforceable. Now, the time has come to replace all personal laws with Uniform Civil
Code or to amend every personal law in order to include transgender as an eligible person
for marriage as well as inheritance under the personal laws.
 Conduct awareness classes to the general public through municipality and panchayats
regarding the transgender rights and the concept of third gender.

BIBLIOGRAPHY
ARTICLES
I. Gursimran Bakshi, Access to Justice Denied: A Case of Double Marginality of
Transgender Prisoners in India, Cambridge University HR Law Soc., (Oct. 14 th, 2022,
9:00 PM), [Link]
marginality-of-transgender-prisoners-in-india
II. Deeksitha Ganesan, Saumya Dadoo, Confinement at the Margins: Preliminary Notes
on Transgender Prisoners in India, 13 NUJS L. Rev. 1 (2020).

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 III. Dr. Shannu Narayan, Envisaging Inclusiveness through Transgender Person's Rights
Law in India, 4 Int. J.L. Mgmt. & Human 404, (2021).
IV. Sireesha Jaddidi & Gunjan Sharma, Position of Transgender in Contemporary India:
An Analytical Study, 4 Intl J L. Mgmt. & Human 2754, (2021).
V. Indra Kumar Lahoti & Nitisha Agrawal, Transgender Rights - An Ongoing Wrangle,
9 NLIU L. Rev. 540 (2020).
VI. Shubhanshi Suman, Transgender: Identity and Rights, 2 Jus Corpus L.J. 539 (2022).
VII. Aditi and Mordhwaj, Gender Inequality in Criminal Laws – A Denial of Rights to
Men and Transgender, 24 Supremo Amicus 787 (2021).

CASES
I. National Legal Services Authority of India vs. Union of India, AIR 2014 SC 1863
II. Navtej Singh Johar vs. Union of India, (2018) 10 SCC 1
III. State of Andhra Pradesh vs. Challa Ramakrishna Reddy, AIR 1994 SC 2663
IV. Arunkumar vs. Inspector General of Registration, WP(MD) No. 4125 of 2019
V. Sweety (Eunuch) vs. General Public, (2016) AIR 148 (HP).
VI. Shayara Bano vs. Union of India, 2017 (9) SCC 1.
VII. Keshava Madhava Menon vs. State of Bombay, (1951) AIR 128.
VIII. Indian Young Lawyers’ Association vs. State of Kerala, (2017) 10 SCC 689.
IX. Anamika vs. Union of India, W.P. (CRL) 2537/2018 (DL).
X. Patan Vali Jamal vs. State of Andhra Pradesh, (2021) SCCOnline SC 343.
CONSTITUTION
I. INDIA CONST., art. 21

INTERNATIONAL CONVENTION/TREATY
I. UNHRC, art. 16
II. Principles on the Application of International Human Rights Laws In Relation To
Sexual Orientation and Gender Identity, art. 3, cl A (2006).

STATUTES
I. Prisons Act, 1894, No. 9, Acts of Parliament, 1894
II. Transgenders Persons (Protection of Rights) Act, 2019
III. The Muslim Personal Law (Shariat) Application Act, §2, No. 26 Acts of Parliament,
1937 (India).
IV. The Indian Penal Code, 1860
V. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

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