An Overview on Indian Personal Laws on the Basis of Cultural Relativism and Human Rights.

Article for Blog Post Writing Competition 2011 | by Ankita Singh


April 28th, 20119:54 pm


The liberal and universal paradigm of the concept of human rights is endowed with reason and conscience.This paper thrives to forward a holistic approach on the difference in culture throughout the globe and as to how different variables of culture has a paramount influence on human rights. The issue of cultural relativism and human rights has always been coupled with tension, discourse and debate.

The social reality of culture is manifested while formulating, applying or enforcing the human rights doctrine. Tracing the history prior to the draft of the UDHR docoument, we get an insight that the document is inspired by the basic religious text and scriputres and culturally inspired books available throughout the globe. All the religious writings which outline and serve as a cardinal principal for the cultures preach the concept of Universality, non-discriminaton, dignity and freedom. The soul of the UDHR draft is inspired by similar concepts, thus borrowing its esscensce of humanity and universality from the religious scriptures available.  For an instance, Central to Indian Jurisprudence in general and the idea of punishment in particular is the concept of “Dharma”. It’s not characterised as a religious concept but a ‘compedious term for all the righteous code of conduct in every sphere of human activity which is meant to ensure peace, harmony and happiness to entire humanity’. The myth of Human rights emerging out of western heritage and philosophy is unjustified. The fallacy regarding the idea of liberalism and individualism being a western concept and totally against the ideals of culture is a thought which has developed out of ignorance of the knowledge of history. Human Rights have not evolved out of the western codes of law like the Magna Carta or it is not the thought process of the scholars like Marx, Groutis, and Locke etc. Its connection can be set forth with the eastern as well as the western culture because it embraces humanity as its sole end and has always kept the themes of culture alive within itself. The commentators like Amarty Sen and Abdullahi Ahmed An-Na’im has pointed out the prevalence of the ideas of liberty, rights, and freedom within other cultures and religions such as Buddhism, Hinduism, Islam and Confucianism. An examination of Indian history reveals a number of political leader and social thinkers, such as Emperor Ashoka (c.300 BC) who converted to Buddhism, and the Mughal Emperor Akbar (c. ad 1540), who advocated egalitarianism and tolerance and championed free discussion. Similar notions  are also discussed and debated in Hindu texts such as the Mahabharta.

There has been a myriad of debates and disscussions that has taken place on the concerned issue. In the Second World Confrence on Human Rights held at Vienna from June 14 to 25, 1993, the agenda was to consider the relationship between development, democracy and unrival enjoyment of all human rights, keeping in view the interrelationship and indivisibility of economic, social, cultural, civil and political rights. The Vienna Declaration adopted in the conference affirmed that all human rights are universal, indivisible, interdependent and interrelated.

With all respects to culture, human rights have worked in the betterment of the cultural phenomena through out the world. The demeanor of the word “culture”can be construed from the German massive genocide or the “Holocaust” where on the name of culture many innocent people lost there lives. The statement that “Human Rights is a universal phenomena” cannot be denied. It keeps the aspect of universality alive within itself.  Looking for a example in this context, within our own Indian system of peresonal laws it can be pointed out that the Indian Divorce act in Sec 10 is negativly influenced by the cultural philosophies and myths prevalling in the society in the name of culture. But with the emergence of Human rights as a universal concept, the courts have given it a serious thought and in the case of Pragati Verghese v.Cyril George Verghese [AIR 1997 Bom349], the Bombay High court struck down Sec.10 of the Indian Divorce Act which compels the wife to continue to live with such a person who has deserted her or treated her with cruelty. This example can be an instance where the fair play of human rights with respect to culture has been bought up. Never in the history of any nation has culture advocated for discrimination and inequality. Considering culture as a carte blanche of rights and denying basic amenities under the purview of cultural is not a point that can be argued in favour of using culture as an instrument to promote in-equality and demoralise people in the society. In the Indian context the best example can be the increase in the number of prostitutes demanding legal rights, licences and reemployment training especially in Mumbai, Delhi and Calcutta. Now if these rights are denied on the basis of culture taking the stand that prostitutes are only “Devdasis” and are not priveleged human beings to get the above mentioned amenities will be sheer violation of human rights in the name of culture. Thus, keeping in mind the human rights aspect and overrriding the negativity of the percepts of culture, the judiciary in India in the case of Gaurav Jain vs. Union of India [AIR 1997 SC 3021] placed emphasis on the need to provide prostitutes opportunities of education and training so as to facilitate their rehabilitation. In 2002, the Indian Government even signed the South Asian Association for Regional Cooperation (SAARC) Convention on Prevention and Combatting Traffiking in Women and Children for Prostitution.

In the Indian prospect helpfulness, sanctity, care and self- devotion has been the major ingridients of culture. The Indian culture has always been embraced with the feeling of care and hospitality to fellow human beings. Influenced by human rights phenomena in this regard India has become a signatory to the proclamation on the Full Participation and Equality of People with Disability in the Asian and Pacific Region 1993-2002, which was adopted at the meetting to launch Asian and Pacific decade of the persons with disability(PWDs). The Person with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 treats disability as a ciivl right rather than a health and welfare issue and recognises the need to integrate persons with disabilities within the mainstream of society by some normative action.

In most of the South East Asian countries specifically India, personal laws are still prevailling. The legislature is trying for the “implemantation of Uniform Civil Code” but it’s a difficult task because there is a lot of opposition to the same. Uniform Civil Code is espoused with the fundamentals of Human Rights. It respects “difference” but removes “discrimination”. In the constitution of India under Article 44, the applicabity of Uniform Civil Code is emphasised on. In the set of Personal laws prevalent in India, there are certain tortoures provisions enacted in the shadow of culture which creates absolute discrimination and violates the basic fundamentals of human rights.Cultural practices relating to polygamy, inheritance rights, maintainance, consent at the time of marriage, child custody, child marriage and others are amongst the issue of debate. Therefore, to remove the above atrocities a common approach of applicability of similar laws throughout should be adopted.Uniform Civil Code implies in removing those aspects of customary and religious law and practice that is out of the broad universal ambit of general fundamental rights that a person should be levied with. But the approach of adopting Uniform Civil Code has not got a positive appraisal from the cultural relativists.  Human right suggests the adoption of Uniform Civil Code by removing the differences in the cultural cycle which causes discrimination. In a globalized world, where economies and cultures meet, interact and transforms each other we must develop a set of standard that has international recognition and durability.

Futher, in the paramount sphere of culture “abortion of Female feotus” has been a major problem to be dealt within the constraints of Human Rights in the Indian perspective. In India, if a woman chooses to abort the feotus after a certain limit of the pregnancy period, she is to be penalised under Sec 312, 315 and 316 of Indian Penal Code. It is helpful to begin by looking at an unacknowledged implication of the “Forum against Sex Determination and Sex Pre-selection’s” position that a woman who aborts a female foetus is not excersising her rights over her body but is coerced by social pressure. The human rights preachers have a very strong disagreement against this argument because a women in India Aborts her feotus mostly because of the cultural coercion. Thus, the above penal provisions are not always justified in this context. One needs to adopt more realistic approach of the limitations of culture and universality of human rights. I argue therefore, that along with the reforms in culture on a broader perspective to infer human rights, a furnishing meaningful and viable argument is required to be built in support of human rights having respect for cultrure because it will help eradicate all the existing myths and fallacies in the society.The effectiveness of culture on human rights has been proved above and are backed with supportive alternatives.

Article by-

Ankita Singh

Student, 4th Year, ILS Law College, Pune

[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]

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