—Ashwani Kumar Singh, Assistant Professor of Law, Vinayaka Mission’s Law School, VMRF (DU)
In his recent book The Colonial Constitution, Arghya Sengupta argues that the Indian Constitution is a colonial document.[1] He arrives at this conclusion by arguing: first, the framers adopted an Indianized version of the Government of India Act 1935; second, the Constitution provides for broad grounds to curtail constitutionally guaranteed fundamental rights; third, since the directive principles were not made justiciable, the constitution fell short of “becoming truly transformative and original”; fourth, the Constitution created a strong union executive which like colonial administrators could capture state governments; and fifth, the framers did not consider other alternatives before imposing a western-style constitutional democracy.
Some arguments raised by Sengupta are neither new nor radical. For example, the office of governor has been used to undermine the Indian federal structure, or as Bhatia argues,[2] to accelerate the centralizing drift embodied in the Constitutional text. Many of Sengupta’s other arguments are, however, problematic. One of the alternative constitutional frameworks that he suggests the Constituent Assembly should have considered is the Gandhian Constitution. In the post, I argue that the Gandhian Constitution falls short of the very same standard which Sengupta has mapped out in his book and suffers from similar flaws as those that Sengupta has alleged against the Constitution. I discuss two such drawbacks — first, the governmental structure lacks accountability; and second, fundamental rights are made subservient and subject to fundamental duties. If we were to address the flaws present in the Gandhian Constitution, the system of governance that it endorses would drift away from the autonomous village panchayat (village democracy) and come close to some form of “western-style constitutional democracy.” To be sure, any reference to the Gandhian Constitution should be, as is generally understood, seen as a reference to the Gandhian Constitution of Free India drafted by Shriman Narayan Agrawal and hesitantly endorsed by Mahatma Gandhi. Gandhi, in his foreword to Agrawal’s draft, wrote “there is nothing in it which has jarred on me as inconsistent with what I would like to stand for.”
Village Panchayat and Directive Principles
In the Gandhian Constitution, a village panchayat (an autonomous local body vested with legislative, executive, and judicial powers) ideally consisted of 5 members (but not more than 11) directly elected by the residents of the village. The members of the village panchayat would then unanimously elect the president of the village panchayat. If they failed to make a unanimous decision, the residents of the village would directly elect one of the members of the village panchayat as the president. The Gandhian framework had 5 levels (village → taluka → district → provincial → central) of governing bodies. Only the village panchayat was directly elected by the people. The Presidents of a certain number of villages constituted a taluka panchayat. The Presidents of a dozen taluka panchayats constituted a district panchayat. Provincial panchayats (similar to state legislatures) and the All-India Panchayat (similar to the Union Legislature) were constituted in the same manner.
Sengupta accuses the framers of ignoring indigenous systems of governance such as the Gandhian Village Democracy (Panchayati Raj System) and adopting a parliamentary system, which he calls a top-down imposition. While the Constitution did not establish any framework for local government (village councils/panchayats), it did impose a “political duty” (through unenforceable constitutional directives) on the State to “organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government.” Though it took more than four decades to constitutionalize a framework of local government, states (federal units) had already begun enacting statutory frameworks for the organization of local government in their respective regions before any attempt for its constitutionalization could take place. The absence of a constitutional mandate for organizing village panchayats did not put an end to bottom-up republic.
The Gandhian framework of the village panchayat and the framework of the village panchayat found in the Indian constitution differ primarily on the autonomy available to village panchayats and the division of powers, both horizontal and vertical. The Gandhian Constitution entrusted greater autonomy to the village panchayat. Provincial, district and taluka panchayats were largely responsible for guidance and coordination, to enable their immediately preceding units to function effectively. There was however nothing in the Gandhian Constitution that could hold the political actors accountable. Though the people had the right to recall members of their respective village panchayats if 75 percent of people voted to that effect (again, there was no clarity on how a recall election could be initiated), there was no mechanism to recall members of successive panchayats (taluka, district, provincial and All-India panchayats). Other than the right to recall—which itself could be difficult to set in motion, and general elections, there was no mechanism to hold the panchayat accountable. The Indian Constitution created a far more complexed, diversified, and accountable system than what the Gandhian Constitution had to offer. Sengupta also falls for an archaic understanding of village panchayats, made up of “inherently peaceful, equal individuals only interested in the amicable settlement of disputes.” He criticises the Constitution for its design flaws but then, as it appears, endorses a constitution that has “design flaw” written all over it.
Rights and Duties
Sengupta argues that the provisions for curtailment and suspension of fundamental rights watered down their significance. It cannot be denied that the legitimatisation of preventive detention by its inclusion alongside the fundamental rights is a serious design flaw. Sengupta is not the first to identify this problem. However, that design flaw by itself does not make the Constitution colonial or dilute the relevance of fundamental rights. The framers did adopt structural frameworks from different constitutions and constitutional practices, but they also added many unique and lesser-known elements such as directive principles to accommodate ideological dissenters (including many Gandhians) and to insert an element of political constitutionalism. Tundawala and Khaitan have discussed these borrowing and indigeneity elements in detail. My argument here is limited to the claim that fundamental rights had a far more precarious position in the Gandhian Constitution.
The Gandhian Constitution made fundamental rights contingent on the performance of fundamental duties. While Sengupta recognises this fact, he neither offers any concrete response as to what qualifies as the performance of fundamental duties, nor does he state his position on the idea of making fundamental rights conditional. The very first duty enumerated in the Gandhian Constitution requires citizens to be “faithful to the State especially in times of national emergencies and foreign aggression.” This forms a perfect launch pad for initiating sedition and other laws to curb free speech particularly since the duty of faithfulness is not even limited to “national emergencies and foreign aggression.” Sengupta makes note of these overly ambitious and impractical sides of the Gandhian framework, yet remains unhappy with the framers for disregarding the Gandhian Constitution.
Conclusion
It is undeniable that the Constitution has its flaws, and constitutional design cannot be ignored on the pretext of Ambedkar’s famous words: “However good a constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot.”It is doubtful whether Ambedkar meant to disregard the values and importance of constitutional design by his statement. Despite its flaws, the Constitution has — with the help from the judiciary, the opposition, and the people — survived several attacks from different political actors, and continues to do so. Some flaws have been addressed and selectively improvised through informal and formal constitutional changes. For instance, a) the 44th Constitutional Amendment restricted the power of the President to suspend the right to petition the Supreme Court for the enforcement of any fundamental right (as it stands, enforcement Articles 20 and 21 cannot be suspended); b) the Supreme Court has enforced non-justiciable social rights provisions by linking them to fundamental rights (primarily, Article 21 on the right to life); the Supreme Court in a recent judgment concluded that Governors do not have the option of exercising a pocket veto on bills pending before them and must act within a specified timeline (as fixed by the Court). Lastly, Sengupta is right that decentralisation is essential, and local governments should be given decisional autonomy to a certain extent. The Constitution of India does not by any account eliminate the possibilities of decentralisation. However, rogue village democracy, as was the case with the Gandhian Constitution, is not the answer.
Suggested citation: Ashwani Kumar Singh, The Gandhian Constitution Was Never an Alternative, Int’l J. Const. L. Blog, Aug. 27, 2025, at: http://www.iconnectblog.com/the-gandhian-constitution-was-never-an-alternative/
[1] Arghya Sengupta, The Colonial Constitution (Juggernaut 2023).
[2] Gautam Bhatia, The Indian Constitution: A Conversation with Power (Harper Collins 2025).
Comments