The model of Power sharing formula of Cyprus divided on religion basis (however that is not stand correct today, as changes have been made in Cyprus), was referred by Advocated Nariman in the case of ‘R.C. Poudyal v. Union of India (1993)’ while contending in favour of one reserved seat for sangha in Sikkim legislature after its merger to India.
Mr. Nariman claimed that a prohibition against discrimination on the ground of religion is not a basic feature of a democratic State. He placed strong reliance on the constitutions of several countries with special emphasis on the Constitution of Cyprus. The argument was that although Cyprus is an independent and sovereign republic with a democratic Constitution, the seats in the legislature are divided between the Greek population following the Greek-Orthodox Church and the Muslim Turkish community. There is a division even at the highest level, the President always to be a Greek Christian and the vice-president a Muslim Turk.
Mr. Nariman emphasised on the separate electorate provided by Cyprus Constitution and urged that these provisions do not render the Constitution undemocratic or illegal. He also referred to the Statesman’s Year Book (containing statistical and historical annual of the States of the world for the year 1985-86) showing that the population of the Christian community following Greek- Orthodox Church was in 1983, 5,28,700 but was allotted only 70% of the seats in the legislature, and the Turkish Muslims with a population of only 1,22,900, the remaining 30% of seats.
In other words the Muslims forming only about 20% of the total population were allotted 30% of the seats.
Answer of the Court
The court said,
The fallacy in the argument of the learned counsel is the erroneous assumption that fundamental features of all constitutions are same or similar. The basic philosophy of a constitution is related to various elements including culture and tradition, social and political conditions, and the historical background.
If the partition of India had not taken place in 1947 and the people belonging to all the religious communities had decided to agree on some arrangement like the people of Cyprus by adopting a constitution providing for sharing of power on religious basis, the Constitution of Cyprus could have been relevant. There was a sustained effort on the part of the Indian National Congress and of’ several other political and social groups, by and large representing the people who remained in divided India and proceeded to frame the present Constitution, to avoid the partition of the country on the basis of religion, but they could not succeed.
Unfortunately the struggle for maintaining the unity of the country was defeated by religion used as a weapon. The country was visited by a grave national tragedy resulting in loss of human life on a very big magnitude. Religious fundamentalism triumphed, begetting and encouraging more such fundamentalism. In the shadow of death and destruction on an unprecedented scale the making of the Constitution was taken up.
The Constitution of Cyprus or any other constitution framed in circumstances different from those obtaining in this country, therefore cannot be relevant for understanding the basic philosophy and ethos of our Constitution. Although it is not strictly relevant for the decision in the present case, it may be noted that this patchwork Constitution of Cyprus of which the parties represented by Mr. Nariman seem to be so enamoured of, has completely failed to keep the country together.
Religion not only became the cause of partition of the country, it led to wide-spread bloodshed which continued even later and in which people belonging to the different communities died in very large numbers. The people of India are convinced that this tragedy was the direct result of the policy of the British rulers to divide the people on the basis of the religion and give them differential political treatment. During their earlier resistance to the establishment of the British rule, the Hindus and the Muslims were working together, and the combination was proving to be dangerous to the foreigners, and in 1857 the Empire had to face a serious threat.
That in this background the principles of divide and rule was adopted and an atmosphere of distrust and hatred between the main communities of the country on the basis of religion was created, are undisputed facts of history. The people, who made exemplary sacrifices, unfortunately failed in their fight for independence of the undivided nation and were left with no alternative but to be reconciled with partition of the country. These were the people who proceeded to frame the present Constitution, and despite the Net back they had suffered, they reiterated their firm belief in a democratic republic where religion has no role to play.
All this is what has been described as ‘Enacting History,’ by jurists and is available as aid to the interpretation of the Constitution. If we proceed to consider the entire Constitution harmoniously along with all the other materials, relevant in law for this purpose including the ‘Enacting History, there is no escape from the conclusion that any weightage at the poll in favour of a group on the ground of religion is strictly prohibited and further, that this is a basic feature, which is not amenable to amendment.
Reference
R.C. Poudyal v. Union of India, (1993)