On 17 October 1949, Brajeshwar Prasad opposed a proposition to incorporate Mahatma Gandhi’s name in the Indian Constitution’s Preamble as the Father of the Nation. Prasad’s opposition was not born out of contempt for Gandhi, but rather out of disapproval for a Constitution that was not “Gandhian” enough. He did not want to invoke Gandhi’s name in a “rotten constitution”. This prompts the question – what would essentially constitute Gandhian constitutionalism?
The Two Pillars
Two attempts have been made to create a framework of the Constitution inspired by Gandhi. The first one was the “Swaraj Constitution,” and was drawn up by a delegation from Aundh with inputs from Gandhi. A ten-year period of administrating under this Constitution came to be known as the “Aundh Experiment.” The second attempt was by Principal Shriman Narayan Agarwal. In his book, Agarwal tries to draw up a basic framework of a Gandhian Constitution. Although ratified by Gandhi, the book does not proclaim to be encompassing all his ideas. The book places a Gandhian Constitution on the two pillars of “Non-violence” and “Decentralisation”. To understand Gandhian constitutionalism, one must first understand these fundamental principles.
Non – Violence or Ahimsa
Historically, the imagination of Western states has been inherently violent. Hobbes, a seventeenth-century English philosopher, measures sovereignty by its monopoly over the means of violence. In his work, the materialisation of the State is as a “Leviathan” – a mighty sea monster. In contrast to this, Gandhi’s idea of the State is benign. Gandhi asserts that to be completely democratic, the State has to give up on “all forms of violence.” This is deeply linked to Gandhi’s preaching of “ahimsa”. According to him, ahimsa or non-violence is an active force and a way of life that extends much beyond physical manifestations of harm. Gandhi’s conception of structures such as the police for instance, which is an essential institution of exercising state violence, is entirely at odds with the current mainstream Hobbesian notions. Although Gandhi acknowledges the need for a police force, he believes it needs massive restructuring. Gandhi’s guidelines for a police force are that they are extensively trained in the teachings of non-violence and reform. Thus, Gandhi’s idea of democracy is based not only on its procedural aspects but also in its substantive form. His vision of what is fundamentally democratic governance does not merely reassign violence to the polity as suggested by Hobbes in the “Social Contract Theory”. This leads us to the next question – how does one imagine a state that can smoothly function without coercive powers?
According to Agarwal, decentralisation becomes a driving force in ensuring efficient governance without resorting to violence. Agarwal outlines a model of Panchayati Raj Institution, a form of local self-governance, where almost complete autonomy is present in the village. However, a belief in parliamentary governance seemed almost universal in the Constituent Assembly. As Granville Austin illustrates, the Congress had never fully embraced the idea of society put forth by Gandhi in “Hind Swaraj.”
Some of these ideas do eventually find their way into our Constitution. Article 40 under Directive Principles of State Policy which mentions the need to organize village panchayats. Furthermore, the 73rd and 74th Constitutional amendments formalised the setting up of panchayats (Part IX), municipalities (Part IX-A) and co-operatives (Part IX-B). However, the functioning of the third tier of government is dependent on the devolution of power and resources in practice. Although political decentralisation has been somewhat achieved through the amendments, this has not been matched by financial and administrative decentralization. The powers and responsibilities of locally elected leaders continue to be extremely limited and narrow. Further, the power to supersede local bodies on the part of State Governments violates the spirit of democratic decentralisation. Therefore, though there is an effort to incorporate Gandhian ideals in the text of the Constitution, the realisation of these ideals is only achieved in a mechanical sense. Decentralisation is present in the letter but not in spirit.
A critique of a decentralized form of government in which power rests within the Panchayat, is that it might lend legitimacy to a casteist institution. When the Bombay Legislative Council was debating the enhancement of Panchayati power, Ambedkar opposed such a move. He believed that a body so deeply entrenched in notions of caste and hierarchy could not be expected to discharge “bare justice.” Even Gandhi was not blind to the practical limits of the scheme, and realized the perversion of the system through the degradation of the caste system. In 1942, when Gandhi wrote of Village Swaraj, he specifically mentioned that they should be devoid of caste in its present form as well as graded untouchability. Thus, while decentralization may be desirable for economic and political purposes, there is a need to safeguard it against the ills of certain existing power structures. The idea of a non-coercive governance can only be achieved when the ideal of decentralization is applied in a manner that is equitable and free from the burden of prejudices.
What is Gandhian Constitutionalism?
The language of governance inevitably includes the usage of words that are not inherently indigenous. When we try to envision Gandhian constitutionalism, we must separate it from the traditional notions of legal constitutionalism. He considered the profession of law to be one that “teaches immorality”. Thus, it seems unlikely that a Gandhian Constitution would be a document that legally restricts powers of the state through written rules. This brings us to the dilemma of language, should we even use the word “constitutionalism” with the prefix – Gandhian?
The term constitution has two meanings, empirically it is the political conditions that prevail in a specific region at a given time and normatively it is the body of rules that establishes the constraints of political control in a legal sense. What Agarwal does, and what is, to some extent, embedded in the final Constitution, is a normative presentation of legal constitutionalism based on Gandhian ideals. Legal constitutionalism is an assemblage, structured body of rules or code, whereas Gandhian Constitutionalism is a way of governance that is driven by the spirit of decentralisation and non-violence in a more empirical manner.
Albert Venn Dicey’s theorisation of constitutional conventions also becomes relevant. Dicey differentiates between the rule of law and constitutional conventions. These conventions regulate the conduct of several members of sovereign power, but are not really laws since they cannot be enforced by the court. Thus, constitutional conventions are innate and inbuilt in society through years of interaction and cohabited growth, and are values intrinsic to communities. Thus, when we talk about Gandhian constitutionalism, we talk about constitutional conventions that drive governance. In this way, morality is incorporated into the language of the law.
The Spirit of a Gandhian Constitution
The Constitution is a living document; it grows and evolves with society. It is not the mere machinery of this document that is integral to its functioning. The spirit that motivates the text is what remains constant and vital. Gandhian constitutionalism would be one whose spirit is based on the two pillars of decentralisation and non-violence. These are not values that are to be merely incorporated into existing frameworks, but rather tenants on which the entire framework is to be built and practised. Decentralisation cannot be accommodated into the existing quasi-federal structure of our government, but needs to be the starting point of creating a suitable governance structure. In the present context, there is a great debate about the federal structure of our State being threatened, and an increased reliance of Central coercive power such as in the recent case of the revocation of Article 370. Similarly, non-violence needs to be the driving factor while laying out state structures. The recent outrage over the custodial deaths in India reveals the dissatisfaction over the use of physical violence as a manifestation of power. There is an urgent need to rethink the innate violence within our governance systems and consider adopting more non-violent institutions.
Gandhian constitutionalism is a body of political and moral ethics that acts as the basis of formation of a way of democratic governance. Unless a constitution interlinks itself with the ideas of decentralisation and non-violence in ways that are prescriptive as well as non-prescriptive, it will fail the test of Gandhian constitutionalism and will be, in the words of Prasad, a “rotten constitution”.