Mahatma Gandhi and the Indian Constitution

Narendra Chapalgaonker, Subhashchandra Wagholikar

• Publisher: Routledge India
• Year: 2015
• ISBN:
  9781317330738
• Edition: 1
• Topic: History
• Subtopic: Indian & South Asian History
• Index: History

Why did the Constituent Assembly of India discard Mahatma Gandhi's concept of constitutional structure that gave prominence to villages, and prefer parliamentary democracy instead? Why did the self-sufficient and self-governing village of his dream not find a place in India's political edifice?

This book explores these and other important questions that are intrinsically linked to the making of modern India. It traces the events leading up to Independence, the freedom struggle and the forming of the Constituent Assembly. The volume looks at the underlying foundations of the Indian nation state and the role of leaders like Jawaharlal Nehru, Sardar Vallabhbhai Patel and B. R. Ambedkar. It further explores the linkages and the dissonances between Gandhi's ideas and principles and the Indian Constitution.

Engaging and accessible, this book will be an interesting read for researchers and scholars of modern India, South Asian politics and history.

1 THE SETTING

DOI: 10.4324/9781315658339-1

The victory at Plassey in 1757 is believed to mark British ascendancy in India. Ensuing fifty or sixty years saw the British regime stabilized in most parts of the country. British rule in India was not like earlier power shifts the country had witnessed many times. It was not limited to ouster of an individual king or a ruling family, and their replacement by another. Certainly, these new rulers were aliens who had alighted from lands beyond oceans; but more importantly, their English nation was not, unlike India, wholly under feudal rule. Parliamentary democracy had come to stay in their country.

Although the actual administration in India, till the year 1858, was carried by the East India Company, a trading company established in England, still its governance was debated, and its failures were challenged in the British Parliament. This had given Indian populace reason to believe that they could appeal to the King against tyranny of company officials stationed in India. The first political organization called ‘Bombay Association’ was formed on 26th August 1852. In successive years of 1852 and 1853, the Bombay Association submitted two petitions to the British Parliament which were penned by Dr Bhau Daji Laad, a reformer in Maharashtra who was secretary of the Association.¹ Following the rising of 1857, the Queen of England took over reins of Indian administration in next year. Still the British Parliament continued to debate the governance of India and to criticize its omissions.

A branch of the East India Association, established by Dadabhai Naoroji in England, was launched in Bombay in 1869. The Pune Sarvajanik Sabha (or The Pune Public Forum) took one more step in these endeavours towards demanding political rights when it submitted a petition to British Parliament, drafted by Mahadeo Govind Rande, demanding the inclusion of eleven Indian representatives in the House of Commons, to be elected by Indian voters.² This was a nascent plea for a representative political body. Already, a legislature of advisory nature with limited powers had come into existence on which two or three Indian persons were used to be nominated. Before the general elections of 1885 in Britain, organizations like Sarvajanik Sabha of Pune and Mahajan Sabha of Madras had sent their representatives to England to canvass with the contestants on issues concerning India. Even in the absence of voting rights, Indians felt need to strive to get their problems projected in the British Parliament. In 1885, Indian National Congress was launched; it was the first India-wide political organization that later came to lead the freedom movement.

New education

The new rulers introduced new system of instructions in India. Indians were introduced to social and physical sciences as developed in Europe. The new curriculum allowed Indians to study history of struggles fought all over world to secure fundamental rights to every human being, including right to dignified life and other rights of political nature. The rulers had diverse expectations about effects of the new instructions being imparted to Indian people. They knew, on one hand, that new education will awaken Indians to their political rights, leading to possible demands of freedom; on the other hand, some of them hoped that the teaching will see decline of Hindu religion, and the newly educated people will turn to the new, Christian faith. Thomas Babington Macaulay, one of the key officers who decided education policy for India, pointed out to both anticipated effects, one publicly, in his speech in House of Commons on 10th July 1833,³ and other in a private letter, written to his father on 12th October 1836.⁴ In fact, the expectations of large-scale collective conversions were belied; but the liberal education unsurprisingly tended to blossom aspirations of freedom in minds of Indians. Although, imperialist arrogance marked some of higher officers sent to India, some were tempered with liberalism, then in vogue in educated elites in Britain. The philosophy of liberalism was on way to become a significant moral basis of the British system, that granted highest value to individual, to his civic freedoms and to minimalist interference by the state in his freedoms, and it included right of people to elect their government, respect to dissenters, fullest opportunity of development to every person, and the belief that only nonviolent evolutions bring lasting reforms. The Indian political organizations and their political demands could get opportunity of expression only due to liberalism in British regime; under any other regime devoid of parliamentary democracy and liberalism these things would have come to naught.

Double standards of proponents of liberalism

Indians had come to acquire theoretical knowledge of the liberalism being propagated by European thinkers. Books of authors like Adam Smith, John Stuart Mill, Jeremy Bentham, Jean-Jacques Rousseau and Thomas Paine had reached India. Mill and Bentham had found place in the curriculum itself. Educated among Indians had started to understand general philosophy of liberalism. But they could not stomach some contradictions in formulations of these liberal philosophers. Mill was not prepared to say that all nations and people had right to self-rule. Such presentation would have gone against British imperialism. If all were entitled to self-rule, there could be no imperialism and no subject nations. Persons like Mill had worked out through such dilemma: he wrote that right to self-rule was only for those societies that had matured their decision-making capabilities, and not for others. For those still in primitive life, or who were not civilized, there was no need of democracy; they will benefit more under rule of an Akbar-like absolute despot, he claimed.⁵

If all nations have right to self-rule, if Mill and friends accept that Australia and New Zealand had right to independence, then why India cannot have the same right? Newly educated Indians could not find proper and satisfactory response to this question in Mill’s works. If all men are equal, and if all have equal rights, then why did the European government in South Africa exercise racist policies? In India, why was unequal treatment given to Indian people and to those from ruling race? Why did they have unequal rights? Why is there difference in their pays for same work? Such questions exercised minds of educated people.

Logical demand of authority

Response of the educated Indians in two main regions of Bengal and Maharashtra, where the new education system was initiated first, was significant. They were little confused in the face of new rulers, their new procedures, and material changes they had introduced; but not before long, discerning leaders of the society moved out of perplexity and began critique of their circumstances. And they dreamt of future too. Even Lokahitwadi (literally ‘a proponent of people’s interests’) Gopal Hari Deshmukh, who confessed that ‘Britishers were gurus who were sent by Gods from distant lands’, did not desire perpetuation of the alien’s rule. He wrote in one of his Shatpatras (‘The Hundred Letters’, a reformist treatise):

Once the (Indian) people become knowledgeable, they will quietly urge the Britons to grant them parliament on pattern of the one in their own country. After our people begin sitting in it, they will quietly ask, why, they being equally wise, were not bestowed authority. When majority of Hindu people will hold such view, the government will be obliged to act on it…. And then the Britons will stay here only for trading; that means they will be back to the original state of their arrival in India, and our people will enjoy the parliament and self rule…. If the Britons will make any trouble or will try to force some strange piece of legislation, then they will see replay of happenings in America, and our people will make themselves independent, and they will ask the Britons to go back to their country.⁶

Had India befallen to be conquered by some utterly feudal power, she would have yearned for only self-rule and could have won it only by resort to arms. But these rulers were singular, and the times too were unusual. The American and the French Revolutions had proclaimed all over the world, at least in principle, the fundamental rights of individual as well as right of freedom to every nation. As these developments influenced formation of mind of newly educated Indians, their struggle against the British imperialism did not remain confined to self-rule; their idea of independence encompassed constitutional institutions like parliament, and democratic bodies like a representative government elected by people. Indians demanded of Britain a constitutional democracy. They yearned for a constitution written by Indian people without any imperialist control. The idea of freedom comprising a constitutional democracy was endorsed not only by the elite leadership but also mass leaders like Mahatma Gandhi who drew commoners in the freedom movement too backed it. Dadabhai Naoroji who used to argue, like a practiced lawyer, that being British subjects made us British citizens, and that we demand only those rights bestowed to British citizens residing in England, and nothing more, realized later the need to speak explicitly. Delivering presidential address to the twenty second national session of the Congress at Calcutta in 1906, he demanded in categorical words, ‘self government or swaraj like that of the United Kingdom or the Colonies’.⁷ Dadabhai used the term swaraj intentionally. He wanted to underscore that he was in agreement with leaders like Lokmanya Tilak who had been demanding swaraj. Starting with pleas to consider their problems or to grant Indian representations in the British Parliament, political opinion in India had evolved to make unequivocal declaration that ‘swaraj is the only remedy for our all ills and that is our only demand’. Gandhiji who led the Indian freedom struggle expanded the term to mean not the administration of dominion status but an independent state governed by a constitution that is written and accepted by the people of India.

Independence and the constitution

At the very time the British rule was gaining stability in India, the education it initiated had begun to germinate in people’s minds aspirations for freedom, for deliverance from the British Empire. Indians did not visualize a sequence of first waging war or armed rebellion to free the country, and then of working out political arrangements for independent India, not at least on the national scale. Some local rebellions took place, but their leaders also had no idea about future constitutional arrangements. Even the armed struggle raised by Subhas Chandra Bose had the singular aim of freedom. They had no time to reflect on future arrangements. Barring such exceptions, both the direction of political transformations and the ways to achieve those were, naturally, influenced by political traditions of the rulers. Generally speaking, demands for freedom of India were raised by lawful ways only, and parallel to freedom movement, Indian intellectual and political leadership had started thinking about shape of India’s future constitution. It is noted that first private bill indicating the outline of Indian Constitution was drafted and circulated for consideration hardly ten years after the launch of Indian National Congress, the organization that later fought for freedom, in 1885. Indians imagined that the British government will not only grant their demand of freedom, but will also help in the formation of independent India’s Constitution too. Indian leadership hoped that knowing significance of the liberal political philosophy and of universally developing values of freedom and equality, as well as fundamental human rights, the British government will not remain indifferent to these, and that the push of public opinion will compel the empire to create an independent constitutional state in India.

The meaning of a constitution

The constitution is nothing but a well-defined roadmap for administration of an emerging or already independent country. What will be the rights of the citizens? Who will be responsible to protect their rights? Which rights are allowed to be regulated by the state? How will the institutions which are part of the state, like the executive, the judiciary and the legislature, relate with the citizenry, and with each other? What will be limits of their powers? The document that answers these questions is the constitution. It is only a law, a law more important than other laws, as it is believed to be the basic law. The validity of other laws is tested against the constitution. If a law is held contrary to the constitution, it is void to that point. The constitution cannot be changed or amended as easily as other laws. Governments of different parties and of different opinions can come to power through the route of ballot. New governments are entitled to implement their new policies, but the nation needs to be set on some definite course. Some values have to be set as basis of the nation’s governance, and the government is expected to run the country in light of those values and in the direction charted by the constitution. In this way, the constitution is a frame set up for the future.

James Bryce, political scientist and author of the well-known treatise, Studies in History and Jurisprudence, had defined the constitution as ‘the framework to delineate functions, limitations, and powers of permanent institutions established by law in the country’.⁸ Bolinbroke’s definition of the constitution, proffered in his treatise On the Parties’ and quoted by K. C. Wheare in the Modern Constitution described it as ‘that assemblage of laws, institutions, and customs …according to which the community hath agreed to be governed’.⁹ A constitutional government cannot function if the constitution does not affirm powers and limitations of constitutional institutions like the legislature and the judiciary. The legislature is expected to enact laws fulfilling aspirations of the people; the executive is there to implement these laws, and the judiciary checks whether the laws were constitutionally valid and if the executive discharged its responsibility properly. The judiciary not only adjudicates usual cases of disputes between citizens but the constitutional courts (high courts and the Supreme Court) are entrusted with responsibility to review enactments of the legislature and their implementation by the executive.

Authority to frame the constitution

If the law of constitution is believed to contain more legal sanctity than other laws, then who is authorized to make it? Who will first enact the constitution as the legislature comes into existence only after the ratification of the constitution? The constitutions of Australia, Trinidad, New Zealand, Sri Lanka and Canada were enacted by the British Parliament. The bills of these constitutions were presented and passed in the British Parliament in the same manner the other laws are passed. The constitutions of these countries in original form were not approved by citizens of these countries, or their representatives. The British Parliament, in its own authority, awarded constitutions to these countries; only the later amendments were made by the respective countries. Britain was no more sovereign power then. The constitution of Ireland, another British colony, was created by slightly different procedure. A House of Representative of Ireland was established by law enacted by the British Parliament and its members independently created their country’s constitution. The British government disapproved their authority to create the constitution, but the British Parliament again gave its approval to the very constitution prepared by the Irish representatives, and ratified it.¹⁰

However, in case of India’s Constitution, Mahatma Gandhi and Indian National Congress were insistent that it will be authored by Indians and not by the British Parliament. Accordingly, it was to be written by representatives of Indian people. Indian independence was to be authorized by the British Parliament. In a sense, it was to be a peaceful transition. When subjugated country gains independence as result of a revolution, or a republic is born after the overthrow of a tyranny, the leaders accepted by people to lead them prepare the constitution. Many a country’s constitution was born at the dawn of independence as the very part of the process of freedom struggle itself. Peoples’ representatives assembled and prepared constitution; they had not acquired this authority through the ballot, but the charged times had conferred the authority to them. People’s consent was assumed, and the whole country had given approval to their leadership. In India, the Congress wanted the constitution-making to be entrusted to a constituent assembly elected under adult franchise by all Indians. But independence arrived in so unforeseen speed that there was no time to hold fresh elections for the constituent assembly. The British tri-ministerial delegation sent to India to work out procedure of transfer of power had declared its scheme on 16th May 1946. As spelt in the 18th and 19th sections of the ministerial scheme, it was decided that ‘though it would have been proper to elect the constituent assembl...

Table of contents

• Cover Page
• Half-Title Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Preface
• Acknowledgements
• 1 The setting
• 2 The evolution of Gandhiji’s leadership
• 3 The struggle for independence and constitution
• 4 Preparing for the Constituent Assembly
• 5 The Gandhian conception of the constitution
• 6 The Constituent Assembly decides
• Epilogue
• Appendices
• Index