A time to articulate new constitutional ideas for India

General Studies Paper 2

Context

• The Government of India is on a mission to decolonise the country. Edwin Lutyens and Herbert Baker’s grand Parliament building has just given way to Bimal Patel’s modern reinterpretation and the name “Bharat” is being used more frequently to describe the country, challenging the monopoly of “India”. So far, names and buildings are on the chopping block. But what about the Constitution? Should it change? If so, in what way? And following whose ideas?

Hind Swaraj

• When we think of the Constitution of India, our mind may naturally go back to 1950 when it came into force. But constitutional ideas in India predated it. An original and indigenous account of what the Constitution would look like was presented by Mahatma Gandhi in 1908.
• In Hind Swaraj or Indian Home Rule, Gandhi expresses his views on subjects like Swaraj and independence, modern civilization, mechanisation, economy etc. In the book, Gandhi repudiates European civilization while expressing loyalty to higher ideals of empire (“moral empire”). The book was banned in 1910 by the British government in India as a seditious text.
• Gandhi was steadfast in his view that without decolonising the Constitution, we may become independent but would not have swaraj (self rule). The English would be driven away and India would get itself a new democratic government, but the nature of government itself would not change. It would be “English rule without the Englishman” which would “not be Hindustan but Englistan”.
• But what kind of constitution would India have? For him, a swaraj constitution ought to ideally be based on ancient village republics and not a large government in Delhi. The economy would be founded on ordinary Indians producing enough to be self sufficient and trading the rest at local markets. India would be united not because a constitution promised rights, but because Indians themselves considered it their duty to forge a nation out of a people.
• Gandhi’s follower, Shri Narayan Agarwal was given the task of drafting such a constitution to put Hind Swaraj into action. But Agarwal’s draft of the “Gandhian Constitution for Free India”, (1946) was less of a legal text and more a moral code. In it, the rights to personhood, liberty and equality would be contingent on a duty to be faithful to the state.

Handing it over to Ambedkar

• Gandhi pragmatically distanced himself from a constitution that bore his name. At that time, there was considerable momentum towards a progressive post-world war 2 constitution based on following provisions:
• a big state with the authority to ensure law and order
• separation of powers to prevent overreach
• a range of fundamental rights to capture the global move towards universal human rights for all.
• Gandhi found such a constitution “entirely Western” but grasped its prospect of consensus instinctively. He himself rang the death knell of the Gandhian Constitution by persuading Rajendra Prasad to appoint B.R. Ambedkar as the Chairperson of the Drafting Committee of the Constitution in August 1947. Ambedkar had a clear and well articulated vision of what India’s Constitution should look like, which was nothing like Gandhi’s.

Gandhi vs Ambedkar: Constitutional ideas:

• Ambedkar believed that India needed a powerful state machinery that could ensure law and order at the margins of the country. Gandhi on the other hand believed that a large state would be too distant from the people.
• For Ambedkar, the state would be duty bound to manage the economy and control industries for the common good. But for Gandhi, self sustaining villages based on agriculture and cottage industry were the way forward.
• Centuries of feudalism, sectarianism and casteism would be uprooted, in Ambedkar’s vision, through fundamental rights to life, liberty and equality for every individual. Gandhi thought that history could not be undone by a policy document such as a constitution — it needed individuals to change themselves.
• Gandhi had grave disagreement with each of Ambedkar’s visions but realised that they enjoyed a wide consensus across party lines. As a result, he was content in letting his ideal constitution wait its turn.

A constitutional moment?

• Today, we are much like India was in 1908 when Gandhi wrote Hind Swaraj — a nation in flux — than in 1950, when India was a nation imbued with newfound freedom. This is why it is a good time not to draft a new constitution, but to articulate a vision of what new constitutional ideas India needs. These ideas have to be built not just on the existing Constitution worked on by B.R. Ambedkar and other members in the Constituent Assembly but also with the Gandhian ideas they ignored as too radical.
• This is not a suggestion to be premodern as many Gandhian thoughts were. Rather, it is an invitation to ask the fundamental question that Gandhi did — what kind of constitution can bring good governance to India? Unlike names and buildings, constitutions do not, and should not change overnight. But that does not mean that they should not change at all.