By Sonia Bucan
Politicizing religion has historically served as a powerful tool. It is responsible for some of the greatest empires in history, and still lays the framework for the legal systems in several countries today. For example, Islam is the foundation of the Islamic republics of Afghanistan, Iran, Mauritania, and Pakistan. These countries, along with several others, follow a legal system known as Sharia law. Based on the teachings of the Quran and Hadith, Sharia law is a clear example of the politicization of religion given its formation of state institutions based on Islamic principles. However, Sharia law is becoming increasingly scrutinized by human rights advocates due to its harsh conservatism regarding gender and sexuality. India’s caste system and prevalence of gender discrimination is under similar scrutiny. Hindu law has not been the official legal structure of India for decades, yet it continues to play an influential role on the laws and norms that govern society. Thus, the politicization of religion results in institutions which claim to be rooted in religion, however this is often motivated and manipulated by culture in an attempt to set a certain course for society. This is observable in both the Islamic republics and within India.
This article will argue that the appropriation of specific religious principles for formal and informal political purposes leads to the creation of legal and social frameworks which prove antithetical to modern human rights ideals. This is not to say that religion is opposed to human rights, but rather that the usurpation of certain religious aspects provides an institutional justification for the furtherance of a conservative society based in tradition. First, Sharia law will be analyzed to understand how Islamic Republics have used Islam to promote conservatism, specifically with regard to gender and sexuality. Secondly, Hinduism’s influence on the societal framework of India will be examined, specifically concerning the caste system and the prevalence of child marriage.
Sharia Law in Islamic Republics
Sharia law is a legal code derived from the teachings of the Quran and the Hadith, followed predominantly by Islamic countries. Thus, it is inseparable from the religion of Islam. However, Sharia law does not align with Islamic beliefs entirely, and many provisions of Sharia law cannot be found in the Quran as there is “considerable leeway in its interpretation” as Katerina Dalacoura has argued. “The jurists can appeal to the traditions of what Muhammad did or said and use ‘independent reasoning’ in order to construct workable law.” As a result, Sharia law has been used as a tool to appropriate certain texts of the Quran and Hadith in order to establish a legal system which pushes certain social and political norms upon society. Most countries that have implemented Sharia law at some level of their legal frameworks use it to maintain a regressive society, specifically regarding gender and sexuality. However, this effort to push conservatism has resulted in certain laws that have become the focal point of modern human rights debates.
The use of Islam as a justification for not abiding by certain aspects of customary international law has been met with much scrutiny. Several Muslim states did not sign the 1948 Universal Declaration of Human Rights claiming that Sharia law adequately identified the rights of Islamic peoples. However, this led to backlash from the international community which called for Islamic republics to recognize human rights discourse. Eventually, the Cairo Declaration of Human Rights (CDHR) was constructed and adopted by all Muslim majority nations. The CDHR is a guide on Islamic human rights, laying out inherent rights such as the right to life, security, freedom, and justice. Yet, the CDHR took a highly conservative approach to gender and sexuality through its traditionalist interpretation of Sharia law. This perspective aided in the justification of certain political agendas throughout the Islamic world, which take hardline stances on women and sexuality and, in some cases, oppose modern human rights ideals.
Sharia law has been used not only to maintain a traditional society, but as a justification for the unequal treatment of women in several Islamic republics. In 1981, the UN General Assembly adopted The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Its aim was simple: end discrimination against women and promote universal legal equality between the sexes. It is regarded as one of the most important international agreements for the promotion of gender equality and the empowerment of women. Unfortunately, it is also the human rights convention with the greatest number of reservations. Reservations within international law allow a country to encourage ratification of a treaty but exempt them from any articles they wish to not be legally bound by. 15 states, such as Bahrain, Egypt, and Kuwait, cited Sharia law as the sole reason for reservations within the convention. This allowed them to reject parts of the convention that they viewed as contradictory to Islam. The most popular article that Islamic states issued reservations for was Article 16, which set out to accomplish equality between the sexes within family life, marriage, and divorce, particularly concerning property rights, inheritance, and children. Additionally, it forbids child marriage.
There is a general consensus by human rights activists about the importance of Article 16, as the Girls Rights Platform has pointed out: “Reservations to this article have broad consequences… including forced sex/rape, early pregnancy, access to contraception, and child marriage.” Yet, Sharia law is used as a justification for not allowing women these rights, which is antithetical to the goals of the convention. Egypt requested a reservation to Article 16, saying “Sharia lay down that the husband shall pay bridal money to the wife and maintain her fully, Sharia therefore restricts the wife's rights to divorce by making it contingent on a judge's ruling.” The United Nations issued a statement in response claiming that, even if religiously rooted, reservations to Article 16 are “incompatible with the Convention”. Thus, Sharia law was used as a tool to exploit religion in order to justify the avoidance of being legally bound by legislation that would promote progressivism, despite the fact that the Quran gives women equal rights and aligns with several aspects of Article 16.
Sharia law has also proven to be incredibly conservative in regard to sexuality. Recently, the nation of Brunei launched a series of new laws including the forbidding of sex between two men, and adultery. The punishment for these crimes is death by stoning. Brunei adopted Sharia law as the country’s legal system in 2014 and has implemented the law as part of its Sharia penal code at the national level. International condemnation has flooded Brunei since the law’s announcement, and the United Nations described the law as “cruel and inhumane.” Additionally, it is now illegal to practice, promote, or proselytize any religion besides Islam. This is in direct contradiction with Article 18 of the Universal Declaration of Human Rights, which states that any individual has the right to practice any religion, educate others about their religion, and to change their religion at any point.
Scholars such as Sabine Schmidtke have stated that pre-modern Islam, particularly in the Middle Ages, had a “tolerant and even encouraging attitude towards sexual practices between people of the same sex”, despite the fact that the Quran condemns acts of homosexuality. However, as the West became increasingly tolerant toward homosexuality and as homosexuality became more visible, the Islamic world began to repress it. Liberal attitudes towards homosexuality have been seen as “another symptom of Westernization. Thus, it can be claimed that the conservatism espoused by Sharia law may be understood as an anti-Western movement. Understanding that Islamic societies once tolerated homosexuality allows for a deeper analysis into the conservatism espoused by Sharia law. Sharia law aims to maintain a traditional Islamic society; however, its rules on homosexuality are not necessarily rooted in tradition. Thus, it may be seen as an ideology rooted in being directly oppositional to the West, as a result of the politicization of Islam. This appropriation of religion has allowed for the promotion of conservatism and regressive ideals within Islamic republics. As a result, it has paved the way for introducing hardline stances on gender and sexuality into legal frameworks through Sharia law.
Hinduism in India
With 80% of India’s population subscribing to it, Hinduism plays a significant role in the political and societal frameworks of India. Elements of Hinduism have seeped into political structures, as well as informal rules, to provide justification for regressive views on social structures, laws, and traditions. Although Hindu law officially ended after British colonial rule, large sections of it have been carried over into the country’s new legal system. Despite a new tide of freedom washing over the country, Indian society remains riddled with beliefs, traditions, and customs incompatible with modern understanding of human rights and this aids in maintaining the restrictive nature of Indian society. Examples of this include the caste system and gender discrimination, which arose from the informal institutionalization of Hinduism within societal frameworks in India.
Hinduism presents women in a dual light, of good and bad. Many elements of Hinduism bolster female empowerment and sexuality. However, when mobilized for political purposes, Hinduism can be appropriated as a way of suppressing women. This is done through purporting the notion that men are superior to women. This idea of patriarchal superiority has been historically prominent in Indian society and has found itself deeply embedded within the country’s current societal framework, particularly regarding issues such as child marriage.
Child marriage is an overt human rights issue that asymmetrically affects girls. This problem is particularly severe in India. According to UNICEF, India has the most child brides of any country in the world, with an estimated number of 15,509,000. In the 1990s, 54% of girls under the age of 18 were married. Although this number decreased to 27% in 2017, child marriage continues to be a human rights issue that is prevalent within India. The Prohibition of Child Marriage Act (2006) set that the minimum age of marriage for women and men is 18 and 21, respectively. However, as Vandan’s recent study noted “a number of legislative enactments contain provisions which in essence incorporate and endorse the validity of child marriage.” Interestingly, India also put forth a reservation to Article 16 at the Convention on the Elimination of All Forms of Discrimination Against Women, similar to several Islamic republics as previously mentioned. India’s reservation claimed that, while it fully supported the principle, “compulsory registration of marriages is not practical in a vast country like India with its variety of customs, religions, and level of literacy." Not agreeing to compulsory registration of marriages opens an avenue for child marriage to occur under the nose of the law. Therefore, the largest hinderance to abolishing child marriage within India is the customary laws based in religion, according to Girls Not Brides. However, the Vedas, the oldest Hindu scriptures, forbids child marriage. Thus, it is curious that Indian society claims that the practice of child marriage is rooted in religion. In this particular instance, religion is being used as a pawn in the competition between cultural tradition and human rights. The caste system also plays a large role in this custom, as societal pressure for women to be married at puberty is extreme within certain castes.
The caste system is one of the most intrinsic parts of Hinduism. It divides Hindus into four categories: Brahmin, Kshatriyas, Vaishyas, and Shudras. In addition to these main categories is a group which is viewed as completely separate: the untouchables. The untouchables are seen as the lowest rank in society and any contact with this group is seen as “polluting”, thus ostracizing them from society. Evidently, the caste system inherently favors certain groups, such as Brahmins, while suppressing others. The mere existence of a system that hierarchically divides society is directly in opposition to Article I of the Universal Declaration of Human Rights, which states that all humans are born equal. Despite not having much significance in terms of the formal legal framework of India, the caste system plays a major role in the societal framework and aids in maintaining a traditional society. This is especially due to the fact that, as Bawaskar wrote “Indian politics nourishes the caste system.”
Despite the fact that India proclaims itself a secular state, the caste system is still alive and functioning throughout the entire country. The government has taken legal steps to ban caste-discrimination, and even banned the notion of untouchability, however discrimination based on caste is far from gone. For example, in 2012, the India Human Development Survey asked various households whether they enforce the hierarchy of the caste system in their everyday interactions, especially with those who belong to a lower class. The majority of respondents claimed that they did. This is due to the stickiness of informal rules, meaning that deeply imbedded customs and traditions can prove very difficult to change. Unfortunately, this has led to severe dichotomies in aspects such as health and sanitation throughout the country. Inequalities, due to caste, severely limit access to health services for many throughout India. The National Family Health survey has shown “sharp socioeconomic divides in health outcomes, with the lower castes, bearing the burden of mortality disproportionately.” Thus, the politicization and institutionalization of Hinduism’s caste system within India is asymmetrically affecting the health of those traditionally deemed inferior.
Discrimination based on caste, while not within India’s legal framework, proves to be pervasive within India’s societal framework and has continued to play a significant role in politics since India’s inception as a state in 1947. Several influential Indian scholars have critiqued the caste system, finding it inherently in contrast with human rights. B.R. Ambedkar, an influential Hindu scholar who played a crucial role in drafting the Indian Constitution, converted to Buddhism as a result of his view that Hinduism could not be reconciled with human rights as long as the caste system still existed. Dr. S. Radhakrishnan, one of the most powerful Hindu scholars, made the following argument after India was freed from British colonial rule: “If democracy is to seriously be implemented, then caste should go.” Despite these critiques, the caste system still remains a core part of Indian society. The decision to maintain the caste system was an incredibly political one, as the mere existence of the caste system perpetuates the notion that a certain population is superior to another. This should not be understood solely as a result of the embeddedness of informal norms within Indian society. Rather, it must also be understood as a political decision to maintain and conserve a traditional society within India and has been justified by the institutionalization of Hinduism within the country’s societal frameworks.
Evidently, many problems arise as a result of conflating different aspects of religion into one singular framework. It is not religion itself that is the issue. Rather, it is the exploitation and appropriation of specific religious principles which are used as tools to promote a particular societal structure. Whether this be in terms of legal or societal frameworks, the politicization of religion serves as an institutional justification for a particular goal. In the case of Sharia law in Islamic republics and Hinduism in India, this goal is the promotion and maintenance of traditional societies upholding the status quo. However, this may open avenues for human rights violations to take place with virtually no consequence as religion is used as a scapegoat.
Al-Ahsan, Abdullah. “Law, Religion and Human Dignity in the Muslim World Today: An Examination of OIC's Cairo Declaration of Human Rights.” Journal of Law and Religion, vol. 24, no. 02, 2008, p. 570., doi:10.1017/s0748081400001715.
Baru, Rama, et al. “Inequities in Access to Health Services in India: Caste, Class and Region.” Economic and Political Weekly, vol. 45, no. 38, 2010, pp. 49. JSTOR, www.jstor.org/stable/25742094.
Bawaskar, Himmatrao. “Health and the Indian Caste System.” The Lancet, vol. 385, no. 9966, 31 Jan. 2015, doi:https://doi.org/10.1016/S0140-6736(15)60149-0.
“Child Marriage.” UNICEF, unicef.in/Whatwedo/30/Child-Marriage.
Dalacoura, Katerina. Islam, Liberalism and Human Rights: Implications for International Relations. Tauris, 2007.
“Declarations, Reservations, Objections and Notifications of Withdrawal of Reservations Relating to the Convention on the Elimination of All Forms of Discrimination against Women.” Convention on the Elimination of All Forms of Discrimination against Women, United Nations, 10 Apr. 2006, documents-dds- ny.un.org/doc/UNDOC/GEN/N06/309/97/PDF/N0630997.pdf?OpenElement.
Desai, I. P. “Caste and Politics.” Economic and Political Weekly, vol. 2, no. 17, 1967, pp. 797. JSTOR, www.jstor.org/stable/4357872.
Donnelly, J. Universal Human Rights in Theory and Practice. Cornell University Press, 1989.
“India - Child Marriage Around The World. Girls Not Brides.” Girls Not Brides, www.girlsnotbrides.org/child-marriage/india/.
LoPalo, Melissa, et al. “The Consequences of Social Inequality for the Health and Development of India’s Children: The Case of Caste, Sanitation, and Child Height.” Social Justice Research, 8 Feb. 2019, doi: https://doi.org/10.1007/s11211-019-00323-x.
“Reservations in International Law.” Girls' Rights Factsheet, Plan International, www.girlsrightsplatform.org/sites/default/files/2018- 02/Factsheet_Reservations%20in%20International%20Law_EN.pdf.
“Reservations to CEDAW.” United Nations, United Nations, www.un.org/womenwatch/daw/cedaw/reservations.htm.
Schmidtke, Sabine. “Homoeroticism and Homosexuality in Islam: a Review Article.” Bulletin of the School of Oriental and African Studies, vol. 62, no. 2, 1999, pp. 260., doi:10.1017/S0041977X00016700.
Sharma, Arvind. Hinduism and Human Rights a Conceptual Approach. Oxford Univ. Press, 2012.
Specia, Megan. Facing Uproar, Brunei Says Stoning Law Is Meant to 'Educate' and 'Nurture'. The New York Times, 12 Apr. 2019, www.nytimes.com/2019/04/12/world/asia/brunei-stoning-law-defense.html.
Tan, Yvette. “Brunei Implements Stoning to Death under Anti-LGBT Laws.” BBC News, BBC, 3 Apr. 2019, www.bbc.com/news/world-asia-47769964.
Universal Declaration of Human Rights. United Nations, www.un.org/en/universal-declaration- human-rights/index.html.
Vandana. “Child Marriage Under Hindu Personal Law: Factum Valet or An Issue for Protection of Human Rights of Women.” Indian Law Institute Review, Vol. I, Summer, 2017.