Women's right to property under the domain of Hindu legal system has, so far both academic and non-academic approaches in the socio-economic realities are concerned, undergone through sharp scrutiny and harsh criticism. The determination of equal right to property for Hindu women with a view to establish a viable regime of gender justice has experienced arguments placed both in favour and in opposition as well.
Supporters of Universalism vies for the establishment of universal application of human rights regime, disregarding the socio-cultural, religious, political or geographical realities and limitations, as enshrined under the Universal Declaration of Human Rights (UDHR) and other relevant conventions like International Covenant on Civil and Political Rights (ICCPR), (International Covenant on Economic, Social and Cultural Rights (ICESCR) and The Convention on the Elimination of all forms of Discrimination against Women (CEDAW).
On the other hand, Cultural relativism opposes establishment of any such blatant regime without paying any attention to the cultural, socio-economic and political differences as their key understanding towards this view is that there's no universal standard to define morality. From socio-legal pretexts, this particular conflict of thoughts concerning rights issues has been reintroduced from post-modernist approaches. This perplexing discourse is significant from the context of a country like Bangladesh where the legal regime governing Hindu women's property rights suffers from serious backlog due to the absence of required amendments and strong cultural support in favour of normative rules and practices of traditional Hindu society.
Article 17 of the UDHR has been contemplated as the cornerstone of the proponents of Universalism in regard to the equality in property rights for women. This provision is generally construed along with Article 3 and 26 of the ICCPR and Article 3 of the ICESCR, even though they don't expressly speak up on property issues, which in consequences has given rise to the twin principle of equality and non-discrimination. This twin principle is one of the significant underlying principles behind the initiative of establishing a universal rights regime within the periphery of International Bill of Rights.
Their campaign has been fuelled with the introducing of the CEDAW which aims at preparing national agenda for the eliminations of all kinds of discrimination and state of inequality against women. To the Universalists, human rights are inalienable, self-evident and applicable to all human beings. They theorize that human rights are universal and therefore they should apply to all in the same manner disregarding sex, race, religion, society or culture. They regard the twin principle of equality as the basis in establishing an exploitation-free society for securing socio-economic justice for all. Universalists believes that it is the process of establishing equality and elimination of discrimination which shall ultimately ensure social and gender justice.
Cultural relativists opine that since truth is not objective, there can be no objective standard which applies to all cultures. So the concept of Universality of rights is not only a misnomer, but also one of the greatest deceptions ever propagated by human civilization. Cultural relativism is closely related to ethical relativism, which views truth as variable and not absolute. That's why the relativists always argues that what is right or what is wrong should be judged solely from the realities of a given society, not from the context of global rights standards. Relativists assert that inequality is everywhere and discrimination is ever embedded in the nature in itself. So far the sustainability of development is concerned, the propositions placed by Universalists seems to be non-applicable to a number of states, with rapid economic development process even with comparatively conservative cultural practices, within the Eastern, Southern and South-eastern Asia. This is the point where Cultural relativists strongly put forward their arguments against the Universality of rights regime. It has been argued by the relativists that the Bill of Rights is the outcome of western political legacy emanating from the historical events marked by the creation of Magna Carta, French Revolution and American Bill of Rights passed after the long trail of Blood River. They have labelled the Universalism as another form of Cultural Imperialism which attempts to infuse western modelled ethical standards into other society's native cultural norms and practices. Relativists consider the principle of Universalism as the tool for establishing western cultural hegemony over the other traditional society's culture. It has been stated by Nicholas Rengger (2011) that for human rights to be universal, it is crucial for them to be compatible with cultural differences. Universal human rights should not constitute a 'fixed' approach.
So following the arguments of relativists, neither it's plausible nor expected to put forward the principle of Universalism as against the traditional approach of Hindu community regarding equal status of women's property rights. Neither it is positive to have superimposed structure of Universalism nor to have the authoritarian regime in the name of cultural relativism.
Therefore, finding the rightful balance between the two is the crucial fact which matters most in the shifting paradigm of social order. To accept or not to accept is the point where we need to pay attention to the demands of common peoples for whom the law is made. As human beings are not made for law, rather than laws has been made for human beings, it is the people who to decide and chose the best available options so as to improve their present scenario. Referendum or Consensus upon such particular issue can be one of the good options to assess the feasibility of bringing legitimate changes and major overhaul in the present legal regime governing Hindu women's property rights in Bangladesh.
Md Al-Ifran Hossain Mollah is Senior Lecturer of the Department of Law, Eastern University