The surprising absence of Mahatma Gandhi from the Constitution of India
“On 2 October, the world will mark the 156th anniversary of Mahatma Gandhi’s birth. Gandhi, whose political baptism in South Africa was followed by his remarkable stewardship of the freedom movement in India, imagined a decolonised polity that was indigenous in its values, practices and governing systems. Yet, in the document that underpins the modern Indian state and its polity — the Constitution — that Indianness is missing. With some exceptions, this absence of indigeneity is the story of constitution-making in much of the Global South. What we have in these countries, in Gandhi’s words, is ‘English rule without the Englishman’. (Replace ‘English’ with the appropriate colonial ruler),” said STIAS fellow Arghya Sengupta in the sixth STIAS public lecture of 2025.
Why was this the case? What were Gandhi’s core constitutional ideals of the duties of citizens and community-based governance? How was the Indian Constitution developed? Why did Gandhi’s ideas fail to make it meaningfully into the document? And what is needed in constitutional development in a post-colonial world? These were some of the questions Sengupta tackled in his fascinating and engaging presentation.
“I’m asking what Gandhian or decolonial ideas could look like in an alternate constitutional framework,” he said.
Arghya Sengupta is the Research Director of the Vidhi Centre for Legal Policy, a think-tank in New Delhi. His research interests are in constitutional law and regulation of the digital economy, areas in which he has published widely both in peer-reviewed journals and the popular press. He has argued landmark cases in the Supreme Court of India, including the nine-judge Constitution Bench judgment in the Right to Privacy case and the five-judge Constitution Bench judgment on the legality of a particular method of appointing judges to the Supreme Court.
He is the author of three books: Independence and Accountability of the Indian Higher Judiciary (Cambridge, 2019), Hamīñ Ast? A Biography of Article 370 (co-authored – Navi Books, 2022) and the bestseller The Colonial Constitution (Juggernaut, 2023). He recently co-edited a series of essays titled The Working of the Indian Constitution, published by Routledge. He completed his D Phil in Law at the University of Oxford and lectured in Administrative Law at Pembroke College.
“We live in an unfree time, a time of genocide,” said Sengupta in his opening comments. “It’s a privilege to have a place for freedom and free thought at STIAS.”
“9 December 1946 in Constitution Hall was the first meeting of the Indian Constituent Assembly to draft the constitution for a free India,” he said. “Absent is the Muslim League which embarked on a programme of direct action – basically large-scale violence − the antithesis of the ideas of non-violent struggle that underlined the freedom struggle. More conspicuously absent is Mahatma Gandhi who is in a remote village in Bengal where large numbers of people had been killed in communal riots. He saw it as his job to stop civil war – the constitution was a political document which couldn’t bring peace. However, he was absent not only physically but also in the absence of his ideas from the constitution-making process and eventual document. He had led India to freedom but was not physically present when its constitution was being made.”
Defining period
Instead of attending this momentous moment, Sengupta explained that Gandhi was focusing on what he saw as his individual and community duties. “These ideas, rooted in traditional Indic thought, were shaped by his time in the Phoenix Settlement outside Durban, and more generally over the duration of his eventful career of two decades as a lawyer and political activist in South Africa between 1893 and 1914.”
“This became a defining period for the development of his ideas,” he continued. “As Mandela later said: ‘You gave us Mohandas; we returned him to you as Mahatma’. The period was transformative. It was where his main political treatise was written, central to which was his concept of duty.”
Sengupta explained that Gandhi initially saw his time in South Africa as an adventure but was in for a rude shock – “realising it was a place where the most basic human entitlements were not available to all.”
He explained that Gandhi could have run back to India but duty and achieving his mission were a constant trope. In 1894 the commercial case that had brought him to South Africa ended but he became involved in drafting a petition opposing a bill to disenfranchise Indians in Natal and led a campaign of activism culminating in the creation of the Natal Indian Congress in 1894.
Sengupta noted that by 1908 there were already clear signs in Gandhi’s writing that he was thinking about Indian freedom and the governance issues that would follow which, he believed, should be different from the standard features of constitutional governance – particularly in the division of powers, and no ‘big’ government but rather a confederation of self-sufficient villages.
In this time, he started a printing press and moved to a farm at Phoenix outside Durban which served as a model of community living that was spartan and simple.
“His nephew’s biography later showed that not all shared his zeal, that life on the farm was tough and Gandhi was, in several matters, no liberal. It was disciplined with strict rules on personal and community behaviour,” said Sengupta. “The discipline formed the basis of his ideas of Satyagraha – literally meaning truth force, and the foundation of a form of non-violent struggle that was used in South Africa to protest against disenfranchisement and the pass laws.”
Gandhi saw discipline as enabling people to do their duty – believing individual sovereignty freed the self and allowed communities to come together.
“But his time in South Africa was also controversial,” said Sengupta. “He was often seen as only advocating for the rights of the Indian community. There was also a difference between his advocacy and methods. He was a complex individual with often eclectic ideas − drawing neat conclusions is a fraught endeavour.”
But what happened to these ideas and why are they not in the Indian Constitution which should have been their natural home?
“I argue that a combination of political exigencies and conceptual fuzziness were primarily responsible,” said Sengupta.
He explained that the constitution-drafting process between 1946 and 1949 was a remarkable exercise. At the time India comprised 389 million people, with 545 princely states, 22 languages and hundreds of dialects. “It’s hard to believe they could agree on a single document in three years”. India was on the cusp of independence and there was no time for endless deliberation on constitutional principles. The establishment of Pakistan in August 1947 also made a strong central government seem important to limit the chance of another secession.
Sengupta argued that the process was helped by two intentional actions − the Constitutional Assembly was not directly elected by the people – they elected provincial representatives who elected members. Also, it included mostly technocrats – lawyers and other professionals − “the big political leaders left it to the lawyers”.
This meant that Gandhi’s idea of a smaller central government was nipped in the bud along with his ideas of duty and community. The constitution makers also opted for what they saw as best practices − largely based on models of Western Liberal constitutions including some division of power, but with some key departures from fundamental rights especially on what the state could do to restrain citizens – including detention without charge and rights restrictions. Gandhi went along with these though his own views were markedly different.
“It was to some extent about forsaking ideals for political expediency,” said Sengupta.
“Gandhi himself saw it as entirely Western liberal but a logical outcome of the institutions that were present.”
Gandhi was assassinated in 1948 before the constitution was adopted.
Alternative frameworks
So, what could post-colonial thinking in law and constitution-making look like and what are the lessons for the Global South?
Sengupta explained that in the post-colonial, post-World War II period India was not alone, and many newly independent countries adopted tried-and-trusted Western liberal constitutions. “Although it was a somewhat surprising choice there were no alternatives.”
“As non-Western lawyers and political theorists, our minds are still often colonised by frameworks from another place and time. Any search for indigeneity must begin with this realisation, as it did for Gandhi. A lot of unlearning must still be done.”
“For example, how can a constitution lift people out of poverty? South Africa’s Constitution – seen as one of the most progressive – includes socio-economic rights to housing, food and water. These are radical suggestions, and the intent is laudable, but they are not immediately enforceable. The idea was that an independent, effective judiciary would champion those rights, but an independent judiciary is a colonial idea. The framework needs to be rethought. Post-colonial law and constitutions must point to the future – to the work we have to do. Decolonial is about an alternative balance between the state and citizens. The citizen is still below, there is still a deep colonial imprint on the minds. We must be asking what alternative frameworks exist.”
“We need stronger conceptions of rights including socio-economic ones. We need the state to guarantee rights in their truest sense.”
“Also constitution making and popular politics happen on different planes in the Global South,” he added. “There needs to be more thinking of how popular politics can become the everyday of the constitution.”
He hopes his STIAS project – a biography of the life and times of Radhabinod Pal, best known for his dissenting judgment in the Tokyo Trials after World War II − can help to demonstrate how international law can be viewed from a Global South perspective and provide the seeds of some articulation of post-colonial legal thinking.
“Complex work is needed on decolonisation. Decolonial scholars need to work across disciplines. They need to understand what is relevant for constitutions in the Global South. There is an emphasis on excellence but there is a need to include relevance.”
“I don’t think a post-colonial constitution is possible with the form of state as we think of it today.”
He ended by referring to the artwork Secrets of the City by Thato Toeba – recipient of the prestigious 2025 FNB Art Prize in South Africa − describing it as both disruptive and constructing something new. “Fiction and art are leading the way,” he said, “giving ideas of what a post-colonial constitutional framework could be like.”
And asked what Gandhi would be doing today, he said: “I don’t think Gandhi would be involved in constitutionalism today. By the end of his life, he wasn’t that interested in law itself. He would be disturbed by the constant violence which is a negation of everything he stood for. He would also be disappointed in government power and the degeneration of moral character. He would probably be fasting to death somewhere to make people take notice.”
Michelle Galloway: Part-time media officer at STIAS
Photograph: SCPS Photograph