(2003) JLP 48: 85-123
Nidhi Gupta
Abstract
The concept of human rights incorporates the tenets that: the individual is the basic unit of society; rights are the basic organising principle of society; and recourse to formal law including adjudication in mainly adversarial proceedings is the primary method of securing rights. Hindu philosophy with its concept of dharma adheres to the tenets that: the family or group is the fundamental unit of society; duties are the primary basis for securing human existence in society; and reconciliation and repentance are the primary method for dealing with violation of duties. Nevertheless the Indian endorsement of human rights discourse is not an imposition of foreign values, but a voluntary adoption of a welcome concept which is not incompatible with Hinduism. It is necessary to move beyond the two extremes of ‘universalism’ and cultural relativism’.
The discourse of human rights may be attractive to women’s movements in many countries, but it faces resistance, as threatening familiar and valued traditional cultures. In India this may be seen with respect to the traditional practice of dowry. However, the debate about this complex and varied practice has shown a lack of understanding. There is doubt about whether payment and expenditures associated with marriage which do not result from express negotiations and demands should be categorised as dowry. To deal with the problem, it is necessary to address all of these transactions.
Traditional practices such as dowry are integral parts of culture, and it may not be useful to try to eradicate them altogether. Problems arise because the culturally endowed sense of religious and moral duty with which dowry is associated is today exploited by bride takers. This is possible because many girls lack the possibility of economic independence. The general replacement of arranged marriages with ‘love marriages’ is not a realistic option. The granting of inheritance rights to women will not go far towards a solution. A uniform method of legal prohibition and penalisation of giving and taking dowry is unlikely to be successful. It is necessary to fight the notion of male supremacy which underlies these transactions. The best method to approach this is through the reconceptualisation of law as a site of discursive struggle.