By:Anvitha B V Gowda
Abstract:This article primarily focuses on the intersectionality of the Hij̣rā as a culture with the caste and class dominations that exist within the community. It also delves into the Guru-Chela system as a custom of inheritance which remains uncodified without legal recognition to date.
If they see breasts and long hair coming,
They call it woman,
If beard and whiskers
They call it man.
But look, the self that hovers in between
Is neither man nor woman…
Gender, as Simone de Beauvoir puts it, is a construct. Likewise, a Hij̣rā is constantly sculpted to fit in the community. Especially in the Indian social framework, the intersectionality of gender, caste and class (and many more, however, it lies outside the ambit of the paper) plays a considerable role in understanding the Hij̣rā community. Although the community primarily constitutes persons of the ‘third gender’, its composition extends significantly beyond just that. Hij̣rā kinship is a nonheteronormative familial structure that operates through the discipleship-lineage system. A Hij̣rā Gharana ideally possesses an optimistic assurance of a desired way of life for the oppressed nonbinary gendered individuals seeking support which starts with a guru adopting a Hij̣rā (who is termed a Chela) through ritualistic ceremonies. The paper aims to understand the community as a cultural institution, a ramification of socio-political influence, a historical identity, and an economic system.
During the Colonial rule in India, the courts criminalised Hij̣rā by condemning them as habitual sodomites under the Criminal Tribes Act (CTA) of 1871. However, two centuries later, the contemporary political interplay has been no different. Cross-dressing, performing in public, prostitution and begging were categorised as obscene. The primary objective of the Colonizers was to radically erase the existence of the entire Hij̣rā community. However, through time, the community has progressed to employ the customs, which were once considered obscene, as a sign of struggle for cultural restoration. In principle, a Hij̣rā Gharana, as Dr Dasgupta expresses through his paper, should be a place that renders a sense of community for the marginalised providing for what he calls a ‘liveable life’ or a ‘bearable life’. However, experiences for a Hij̣rā, in a world where strict heteronormativity persists, can differ significantly based on the person’s caste, class and the Guru.
“New homes are not so easily found, nor are the old ones left behind.” – Urvashi.
Although Hij̣rās abandoned their past identity while joining the community, it hovers around constantly forcing them under the hands of exploiters. As Dhruba Jyothi said, “caste is a surveillance and queerness is too flimsy a castle to guard it”. The Hijrā community does not have a written set of principles to follow, however, there are internal governing bodies of the house that decide and control the actions of Chelas. Since there has been no codification of the laws governing the community, the foundational characteristic that an ideal Guru is expected to possess is respect, livelihood and embodiment. It is important to speculate on what are the indicators of a respected Hij̣rā in a desirable Gharana. A Hij̣rā, in a binary dominant nation, continues to live a life of an outcast. However, that does not make them immune to the vicious system of caste that has mercilessly continued to haunt the Gharanas. Surname does play an important role in the life of a Hij̣rā, while some retain it, some choose the queer shield. A guru can be a mother, a leader, or a guide, however, in reality, the complexities of the relationship between a guru-chela are greater than a hetero-familial relationship due to the lack of a written regulation. Although Hij̣rās feel safe the most in the Gharanas, it is difficult to escape from the discrimination based on the caste system. Since the regulations imposed by the gurus are strict it requires Chelas to live a particular way of life to be identified as the guru’s dearest who usually enjoys the benefit.
It is important to consider Simone de Beauvoir’s argument regarding constructive gender norms to understand the social position of a Hij̣rā. As Judith Butler has clarified further through the concept of performative gender roles, Hij̣rā as an identity stems from the culture that has been long-standing in the nation. For example, Dr Das Gupta mentioned a conversation with Anjali, a transgender person, who said “Mashi amake shari porte shikhieche” (Aunty taught me to wear a saree). The intention of highlighting the conversation was to show the purity of Anjali’s relationship with their Mashi (equivalent to a guru). However, the gender expression of the transgender person would be confined, along the journey which was once an enriching experience. This rightly explains the concept of ‘gender performativity’ proposed by Judith Butler. Further experimenting with the topic, we come to see how gender performativity negatively affects the inheritance law of the Chelas.
The guru-chela system of inheritance is an uncodified cultural practice through a non-biological disciple-lineage system. The property is passed down upon the death of the Guru to their ‘dearest’ Chela. Since nothing explicitly defines who the dearest Chela is, the next kin of a Guru is difficult to establish. However, in certain cases, the rationale behind choosing the dearest Chela can be discriminatory for the people who join the community with the hope of change, not only with respect to gender expression but with regard to caste and class oppression that follows along. The Transgender Persons (Right to Protection Act) of 2019, which guarantees the right to property and right of residence of a transgender person, has failed to address the issue of inheritance, especially the complications surrounding the customary practice of the guru chela system. Withholding the legal recognition of such a customary law is one of the reasons why the exploiters arbitrarily exercise their power upon the already oppressed section of the community.
Sweety v General Public has been one of the most important cases to deal with the guru chela system. However, the court took little to no effort to elaborate on the rules and regulations of the guru chela system. The crucial concern for the court was to determine whether the system that claims to operate beyond the binary heteronormative familial structure intersects with the Hindu Law of Succession Act. Although the court held the property of the deceased to belong to the guru, there has been no explanation for doing the same except that the defendant was a member of the Hijra community hence should be governed by the Guru-Chela Parampara. As Arvind Narrain says, “The rights of these individuals now stand precariously poised between empathy and contempt”. The court under Sweety v General Public establishes that the Hijra community falls outside the ambit of the Hindu Law of Succession Act not because they have a custom that has been persistent among the population for a considerable period but rather because the Smriti mentions that the outcastes and eunuchs do not deserve any share. However, the court also adds that the recognized third gender like any other person enjoys legal and constitutional protection while completely negligent of the fact that the Guru Chela system has not been recognized by the law.
The very ‘legal and constitutional protection’ that the courts have guaranteed does not manifest unless every individual it aims at is being treated like a citizen of the nation. Gender identity or sexual orientation of an individual should not serve as the basis for deciding selective laws in the name of ‘granting equality’. A citizen as regulated by section 10 of the Indian Constitution must be subjected to the provisions of the laws made by the parliament. However, framing uniform civil laws cannot be viewed as a solution to the issue that is being argued. As established through the critique of Sweety v General Public, in contemporary India, the Guru-Chela system would be altered to symbolise the majoritarian notion of the country, which would destroy the very essence of the Hij̣rā Community. However, the court rather than noting each gender identity, should neutralise the gendered laws. In terms of Guru-Chela as a method of inheritance, it is important to codify the system. It would further allow for reform and amendments in the law. Legitimization would help voice the exploitation and oppression faced by the Chelas. They should be provided rights not because the courts empathise with their situation but because they rightfully deserve so.
About the Author
Anvitha B V Gowda, a second-year BA LLB student at Jindal Global University, is interested in the intersectionality of gender, caste, sexuality and public policy.
Image Source- Hinchy J, “The Hijra Panic,” Governing Gender and Sexuality in Colonial India: The Hijra, c.1850–1900 (Cambridge University Press 2019). https://www.cambridge.org/core/books/governing-gender-and-sexuality-in-colonial-india/hijra-panic/1E3C6C60CC72BEDBBF1FD1559F83C505