Gandhi and Dispute Resolution

Transcription

1 Chapter IV Gandhi and Dispute Resolution

2 Gandhi and Dispute Resolution both were happy with the result, and both rose in public estimation. My joy was boundless. I had learnt the practice of law. I had learnt to find out the better side of human nature and to enter men s hearts. I realized that the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing out private compromise of hundreds of cases. I lost nothing thereby--not even money; certainly not my soul 1. - M.K. Gandhi 4.1. Introduction Mahatma Gandhi in his autobiography described his experience at amicable dispute resolution (cited above) as an exercise in uniting parties riven asunder. We can see various undercurrents of Gandhian ethics in conflict resolution theory and techniques, and alternative dispute resolution practices all over the world today. Knowingly or unknowingly most of the alternative means of dispute resolution methods adopt Gandhian ideals. The relationship between Gandhian non-violence (ahimsa) and theories of conflict resolution has been analysed by many scholars. The literature on law and society and the Gandhian literature are generally interlinked in political theory particularly with respect to civil disobedience, but not so much in other areas such as interpersonal conflicts or the role of the legal system as a general mechanism of conflict resolution (Weber, 1991b). Resolution of conflict without allowing it to go through court proceedings has been a cause dear to the Gandhian agenda. As a 103

3 lawyer, Gandhi always tried to settle conflicts outside the court system even while collecting his regular fees. The modern alternative dispute resolution movement has established a method for avoiding legal adjudication by giving the disputants some degree of control over the outcome of the dispute in a Gandhian spirit through the good offices of a third party. In 1909 itself, through his manifesto, Hind Swaraj or Indian Home Rule, Gandhi raised strong criticism against British legal system which prevailed at that time in India. In Hind Swaraj, he explored the impact of British judicial system on the Indian social system. Gandhi talked about the British courts in India as part of the machinery used to maintain imperialist political control (Weber, 1991b: 69). Gandhi did not have any belief in the British judicial system for resolving disputes among people. He differentiated between pure or ancient justice and western or modern justice. Pure justice was that which was inspired by fellow feeling and compassion. This system was governed by a sharing of joys and sorrows and was based on mutual regard, discipline, courtesy and affection. He argued that a totally different way of life prevailed in the modern west 2 (CWMG, Vol. No.16:302-04). The modern west had no place for feelings in public activities. He cautioned against introducing this despicable justice in India (Suhrud, 2009: 88). Postcolonial scholars like Polly O. Walker (2004) also speak of the attempt of Western colonial nations to undermine the other worldviews and implement western based systems in their colonies with coercion. Silencing indigenous worldviews has been one of the major tools of colonisation. Elizabeth Kolsky reveals a new perspective on the British Empire in India, highlighting the disquieting violence that invariably accompanied imperial forms of power 3. Major theorists of conflict resolution explored the importance of culture in shaping people's ways of dealing with conflict (Avruch and Black, 1991).Walker stressed the need for decolonizing approach which is necessary in the field of conflict 104

4 resolution, which has respect and understanding of indigenous worldviews that have been marginalized through colonization (Walker, 2004). As part of resistance movement (freedom struggle), Gandhi put forward an alternative action plan to oppressive (British) rule. The creation of competing and alternative patterns of relations and interaction, through the production of parallel cultural, economic or political institutions, might be necessary. And so, a social space for a new order is created. Through the 'constructive programme', Gandhi emphasized the social integration of the new society and the creation of alternatives to the oppressive institutions that the movement tried to overthrow. The dismantling of oppression alone is not enough, according to Gandhi. Instead, it is necessary to ensure that the new society does not arise with ease from the ashes of the old. The development of the new society should be initiated during the resistance struggle, in order to sincerely show what is wanted, instead of the present situation, and in order to make success possible (Sharp, 1979: 81). Gandhi believed that the political and economic structure of India should be decentralised so as to establish the village based political economy i.e., the village as a pivotal administrative and social unit 4. Mahatma Gandhi, as an article of faith, believed in people's participation and decentralised justice 5. He said, 'my idea of village swaraj is that it is a complete republic, independent of its neighbours for its own vital wants, and yet interdependent for many others in which dependence is a necessity So there will be no system of punishments in the accepted sense, this Panchayat will be the legislature, judiciary and executive combined to operate for its year of office. Any village can become such a republic to-day without much interference.' (CWMG, Vol. 83:113) The nationalist movement in India which culminated in the Independence of the country failed to evolve an indigenous legal system fully 6. Mahatma Gandhi did voice his suspicion of the 105

5 British-sponsored courts and the lawyers in his many exhortations of civil disobedience movements, but when India gained freedom, and the framing of the Constitution began, the Gandhian emphasis on indigenous legal system and judicial administration was not acceptable to most members of the Constituent Assembly. The Constitution as it emerged contained elements of the Gandhian ideology village panchayats and democratic decentralization only in the Directive Principles of State Policy 7. The entire juridical structure was otherwise kept intact (Singh, 2005). B. R. Ambedkar, who piloted the Constitution through Constituent Assembly, made his view of a village based polity quite clear. No doubt the village communities have lasted where nothing else lasts But mere survival has no value What is a village but a sink of localism, a den of ignorance, narrow mindedness and communalism? I am glad that the Draft Constitution has discarded the village and adopted the individual as its unit (Ambedkar, 1948) 8. Gandhian ideologues and followers did not succeeded in implementing the social system as envisaged by Gandhi. Gandhi said: The Grama panchayats shall be entrusted with the dispensing of justice, no separate judicial panchayats are necessary. The poor peasants need not to go out of his village, spend hard-earned money and waste weeks and months in towns on litigation. He can get all the necessary witnesses in the village and fight out his own case without being exploited by lawyers. When intricate points of law arise, sub judge from the taluka or district could come down to the village and assist the panchayat in deciding difficult cases. The sub judge shall also act as a guide, friend and philosopher to the ignorant villagers by acquainting them with the laws of the state. Such a judicial system will not only be simple, prompt and cheap but also just because the details of civil and criminal cases will be, more or less, open secrets in the village and there shall be hardly any scope for fraud and legal juggleries (Harijan, 22 July, 1946). 106

6 4.2. From a Barrister to Satyagrahi Gandhi as a Lawyer Gandhi started his career as an Attorney in South Africa and he practised law for 20 years 9. During that period he dealt with hundreds of cases related to conflicts of all kinds Interpersonal conflicts, Labour conflicts, Social conflicts, Religious conflicts, State conflicts and National conflicts and used every possible technique for resolving them through the legal channel, by mediation, by education, by arbitration and so on. But right from the beginning Gandhi became disgusted with the legal techniques. I became disgusted with the profession. As lawyers the counsels on both sides were bound to rake up points of law in support of their clients; the winning party never recovered all the costs; I felt it was my duty to befriend both parties and bring them together (Gandhi, 1994:111-12). From the beginning of his public life he had been pursuing peacemaking effort following the footsteps of his father who was responsible for settling disputes in his province. Gandhi's first success story in peacemaking began in South Africa, where he went as a legal adviser but acted as a mediator and settled the issue between Dada Abdulla and Sheth Tyeb Haji Khan Mohammed 10. Through this case Gandhi realised that the role of the lawyer was not to create further rift and tussle between the parties, but to make them reach an amicable settlement. Compromise became the chief motive of his legal practice (Desai, 2009:195). Gandhi was always in favour of settling a case and often advised his clients not to fight to the bitter end. Gandhi was overjoyed at the success of his first case in South Africa and concluded that the whole duty of an advocate was not to exploit legal advantages and adversary weaknesses but to promote compromise and reconciliation (Mehta, 1983: 101). This incident converted him and encouraged him to settle many such conflicts later. Many such events can be traced from the life of Gandhi in South Africa. His active role in settling the case of Balasundaram, 107

7 an indentured labourer, and Parsi Rustomji, a businessman, bears testimony to his art of peacemaking Gandhi- The founder of ADR in India? As far as possible, Gandhi advised his clients to settle conflicts with their opponents out of court. Gandhi ensured that the settlements had legal sanctity. Gandhi insisted the parties to withdraw the case if they filed the case before the court. Agreements were written and attested by the parties in the presence of witnesses. Gandhi intended to do his legal practice as part of his public work. I never resorted to untruth in my profession and that a large part of my legal practice was in the interest of public work (CWMG, Vol. 44: 360). Hundreds of Gandhi s clients became friends and co-workers in his public service. 11 Gandhi was willing to negotiate and compromise only if that did not violate the fundamental principles he believed. Gandhi had learnt to believe in his convictions; even if the judge gave a severe order against him, he argued till the last if he was convinced of the truth of his position. This allowed him to lose many battles but win the war (Desai, 2009: 206). Gandhi took a stand all his life against injustice, but disapproved of the British legal system, which continues in India. In South Africa, he set up his own informal dispute resolution (reconciliation and recompense) processes and encouraged litigants to settle their cases out of court. However, as it was rightly pointed out, he fought against unjust laws. Now civil society has to fight for implementation of just laws. But that does not rule out popular activism or bypass the negativities of litigation. This is not to say that litigation is not necessary and just a case won in the courts can provide satisfaction to both litigants and society in general. But it can perpetuate hard feelings. No doubt a judicious use of both the processes of popular activism and litigation would be useful, depending on the circumstances. 108

8 Gandhi s first encounter with British rule in Indian soil was in the Champaran peasant movement 12. In this movement Gandhi took the initiative and mobilised people against the injustice of the government and made some legal compromises. After Champaran, he took up the issue of workers of Ahmadabad textile mills. One of the mill owners requested Gandhi to intervene in the dispute. The workers and the mill owners accepted the principle of arbitration. They appointed three arbitrators from each side. Gandhi was representing the workers. On the commencement of the strike and following lockout of the mills, mill owners offered twenty percent increase in wages. The workers demanded 35 percent increase in wages. The workers took a pledge in a public meeting that they would not rejoin mills till a 35 percent enhancement in the wages was ensured. They also proclaimed that they were not working against mill owners and their mills or make any disturbance to them. But they remained peaceful during the lockout (Desai, 1951; CWMG Vol. 16:364). Gandhian scholar Thridip Suhrud comments that this pledge was similar to the pledge taken at Empire theatre at Johannesburg (1906) on the occasion of introduction of Asiatic Registration Act (Suhrud, 2009). This was the advent of satyagraha. After twenty two days, Gandhi declared fast unto the settlement. Gandhi began considering the compromise formula after three days fasting. The compromise formula was one which honoured the pledge of the workers and the decision of the mill owners and accepted the principle of arbitration. The workers called off the strike according to formula and the mill owners agreed to pay them an increase of 35 percent on the first day, 20 percent on the second day and 27½ percent from the third day till the arbitrator s award was declared. Both parties agreed that the increase of the interim period was only temporary and final wages would be decided after the arbitrator gave his award 13. Ahmadabad labour strike and fast was an Indian experience in dispute resolution for Gandhi. Through these campaigns and succeeding satyagrahas (Bardoli and Kheda 14, Gandhi attempted 109

9 to alter the unjust legislations and anti human conditions. The South African experience taught Gandhi to abandon litigation as a tool for social change and contributed to his decision to embrace nonviolent civil disobedience (DiSalvo, 2009: 143). After his return to India, it is noted that Gandhi never tried to engage in litigation in his fight against social injustice. He rejected the mode of litigation and not the law as such. Thus it would be correct to say that Gandhi is the father of ADR in India Towards a Gandhian Model The words conflict resolution can mean very different things to different people. They are often used synonymously with dispute settlement and conflict management. Pioneering analyst of the position of needs in conflict situations, John Burton sees conflict resolution as a problem solving exercise that aims at the elimination of the sources of the conflict, not merely the management of the conflict or the settlement of the manifest dispute. In short, for Burton, conflicts may be managed and disputes may be settled without conflicts being resolved. In contrast to an adversarial power approach, Burton champions a problem- solving approach which is grounded in his view of innate human needs, which transcend cultures, and which must be satisfied if deep- seated conflicts are to be resolved. For Burton, the violation of the drives that stem from these needs leads to conflict and crime, while their satisfaction, through problem solving processes, prevents violence, and conflicts can be resolved by getting to the roots of a problem through a searching analysis by all those concerned in the light of which an agreement can be reached without any compromise of human needs (Burton, 1997:45). This collaborative problem solving approach to conflict resolution seems to have its origins in developments in industrial relations in the 1960 s, when the idea arose that more cooperative interaction between the parties could lead to a greater increase in 110

10 productivity than that which ensured from more traditional forms of power bargaining (Scimecca, 1989: ). In the mid 1960 s, Burton instituted international problem- solving workshops at the Centre for the Analysis of Conflict in London. One of the facilitators at the first workshop was the Harvard Professor of international law Roger Fisher (Scimecca, 1989: 268). Also around this time, some peace activists turned their attention to peace making activities; and dissatisfaction with the costly, slow and adversarial court system led to the development of what has come to be known as the alternative dispute resolution (ADR) movement (Tidwell, 1998:10-17). This alternative conflict resolution method grew out of the adjudicative legal tradition and maintained the role of a third party to determine the outcome in accordance with prevailing norms and according to theorists like Burton still operated within the power- bargaining frame, with legal or industrial norms determining the outcome. Later in the 1960 s a new approach, focusing on human needs, became more fashionable. In this approach, conflicting parties are brought together to analyse the conflict in a non- bargaining way that looks at its deep- rooted sources so that the conflict can be truly resolved, rather than creating a situation where merely the manifest dispute is settled. For simple interpersonal disputes, community or neighbourhood justice centres became popular, providing cheap mediation as an alternative to legal and quasi legal processes. These developments were gradually moving towards the Gandhian model, and particularly so in the recent non- mainstream approach known as transformative mediation that sees mediation as a process that potentially can change individuals, and through them society, for the better. This approach is very reminiscent of Bondurant s characterization of a Gandhian view of conflict, starting from the premise that conflicts need not be seen as problems in the first place. Instead it suggests that they should 111

11 be seen as opportunities for moral growth and transformation (Bush and Folger, 1994: 81) Satyagraha The Gandhian Way Gandhi gave the theory and practice of nonviolence, practised it in his daily life and used it to resolve conflicts. No one has done more to develop and popularize the tool of nonviolent action than Mahatma Gandhi. Tidwell pointed out that all conflicts cannot be or should not be resolved. He clearly admits that positive peacemaking is a good thing. Nevertheless he did not wish to resolve all the conflicts; but proposed that some should be won (Tidwell, 1998). Gandhi has demonstrated the value of nonviolent satyagraha as an effective weapon for correcting untenable positions, when obtaining redress through constitutional means is slow, difficult, or beset with hurdles. In recent times social scientists have started taking an interest in analyzing the processes underlying Gandhi's technique of nonviolent activism i.e. Satyagraha. The work of nonviolent theorists such as Gene Sharp and the persistence of historical traditions and practices of pacifism such as those contained in the ideas of Gandhi, have cross- fertilised with academic enterprise to enhance understanding of violent political conflict and alternatives to it. The objectives of Gandhi s satyagraha were to make latent conflict manifest by challenging social structures which were harmful because they were highly inequitable, but to do this without setting off a spiral of violence the complementary value was non-violence (ahimsa). In the Gandhian model of conflict, which contains within it built-in inhibitors of violence, the objective is not to win, but, through what Bondurant called the Gandhian dialectic, to achieve a fresh level of social truth and a healthier relationship between antagonists (Wehr, 1979:64). The term Satyagraha has been translated variously as passive resistance, nonviolent resistance, nonviolent direct action and 112

12 even militant nonviolence (Weber, 199b:2). For Gandhi it was not only a method of conducting conflict, it was also a way of life, of living truth. Jean Bondurant considered satyagraha as a ' theoretical key to the problem of social and political conflict. The 'key' lies in a peaceful method of responding to and conducting the conflict once it exists' (Sharp, 1979: 61) Concept and Technique of Satyagraha According to Rammanohar Lohia, satyagraha is Gandhi s major gift to mankind. Gandhi is known the world over as the author and advocate of Satyagraha 15. To Gandhi, truth meant being truthful in thought, word and deed. But as a concept, satyagraha connotes non-violent and peaceful adherence to truth. Therefore Gandhi insisted that one s pursuit of truth must be through nonviolent means. There is nothing new or revolutionary about Gandhi s insistence on non-violence as the rule of private morality or personal conduct. This is obviously the common heritage of all great religions of the world. What is unique about Gandhi s emphasis on the non-violent adherence to truth is, of course, the way he applied it to life and its problems (Mathai, 2000). The unique contribution of Gandhi lies in the way he developed truth and non-violence into an infallible technique of social change which can be used both for removing the existing evils from society and for ushering in a new order free from all the ills that plague the present social order. Satyagraha is the application of truth-force towards the promotion of social reform and social welfare. As non violence for Gandhi meant not merely non-injury, but active love and the positive will to sacrifice one for the sake of others, the use of non-violence for the redressal of grievances and the correction of mistakes would not normally provoke any unfavourable or undesirable adverse reactions in the opponent. Under the moral pressure of non-violence one was more likely to introspect and change his position than if he were threatened by the weapon of violence. 113

13 The technique of satyagraha is not to destroy the opponent but to convert or win him/her by sympathy and self suffering. The basic assumption behind satyagraha is the inherent goodness of human nature. Gandhi believed that the basic assumption of satyagraha is that human nature is essentially spiritual, rational and good. A satyagrahi proceeds on the assumption that, as human nature is basically good and at its deepest layers consists of the noblest feelings, if properly appealed to it will respond positively. A satyagrahi makes a distinction between the evil and the evil-doer and while trying to eradicate evil, tries to save the evil-doer by making him cognisant of the evil 16. A satyagrahi, as a seeker after truth, can ill afford to compromise with untruth or evil and therefore wherever and whenever he comes across untruth in any shape or form- injustice, exploitation, violence, open or concealed- he resists it with all the might he can command. He never fights shy of uncovering and exposing conflicts. Satyagraha is a method of conflict resolution and not conflict-insulation and in order to resolve a conflict one has to confront it first and take it by the forelock (Mathai, 2000:244). Gandhi did not run away from confronting and resolving conflicts. On the contrary, he faced them directly and by a practical use of the non-violent technique resolved them to the best advantage of all concerned. That a satyagraha cannot but resist injustice and evil wherever and whenever it occurs is, thus, clear from the life and work of Gandhi. The objectives of Gandhi s satyagraha were to make latent conflict manifest by challenging social structures which were harmful because they were highly inequitable, but to do this without setting off a spiral of violence- the complementary value was nonviolence (ahimsa). Strong echoes of satyagraha can be discerned, for example, in Burton s analysis of conflict as rooted in the denial of ontological human needs, and in the uses of the problem-solving method by Burton, Kelman, Mitchell and others to achieve mutually acceptable and self-sustaining outcomes as described (Ramsbotham, et al, 2008: 39). 114

14 As satyagraha was for Gandhi the most powerful method of direct action capable of eradicating social evils and preparing the ground for genuine and lasting change, he laid down strict conditions for offering it. Gandhi specified certain rules 17 and qualifications 18 for the satyagrahis. Satyagraha as a technique of fighting social evils and ushering in a just social order can assume varied forms of non-violent direct action. Non-Co operation 19, Civil Disobedience 20 and Fasting 21 are the three major forms of satyagraha. Hundreds of thousands of known and unknown votaries of ahimsa have proved the efficacy of satyagraha or non-violent direct action as it is popularly known in the West. As R.R. Diwakar testified: it can be used for resisting any injustice big or small, for bringing about any reform in any institution or society, for the repeal of any unjust or bad laws, for the removal of any grievances, for the prevention of communal riots or disturbances, for bringing about a change in the existing system of Government, for resisting an invasion, for replacing one government by another. Thus the range and purpose for which satyagraha can be used as a remedy are wide and varied enough (Diwakar, 1969:45). Thus we can say that Satyagraha, the active form of non-violence is an imperative one today. It must pervade all aspects and spheres of life, all levels of human interactions intrapersonal and interpersonal, national and international Power as Obedience and Resistance as Disobedience Nonviolent movements relate to a tradition formulated by M. K. Gandhi, the person who created the concept of non-violent resistance or 'satyagraha' (Vinthagen, 2006). Resistance is concerned with breaking up the power relations where humans are made into tools for external interests or servants in oppressive hierarchies. Non-violent movements' use of disobedience and non-cooperation thus attacks the very foundations of power (Vinthagen, 2006:4). 115

15 Gandhi carefully crafted a strategy for measuring power in terms of the willingness of people to suffer for their cause - without inflicting violent harm on their adversaries. Through such nonviolent actions as breaking unjust laws and flooding the jails of colonial India, boycotting English textiles, provoking the wrath of the occupiers, and accepting whatever violent punishment they meted out, he persuaded a nation infinitely more powerful in conventional military terms to withdraw peacefully from a country it had occupied for years. In an unequal society the exploiters will always have an edge over the exploited and that the legal system will act as a resource for the dominant interests as a pliant agency of repression of the vulnerable people (Baxi, 1982). That is why Gandhi said, law is nothing but the convenience of the powerful (CWMG, Vol 25: 65). Gandhi resisted the British colonial government by disobedience strategies/movements. He believed that exploitation (using power structure) is impossible without the co-operation of the victim (sufferer). Gandhi said subsequently, disobedience is a state of peaceful rebellion- a refusal to obey every single state made law. It is certainly more dangerous than an armed rebellion. For it can never be put down if the civil resisters are prepared to face extreme hardship (CWMG, Vol. 24:47). Gandhi says that only he who has mastered the art of obedience to law knows the art of disobedience to law (CWMG, Vol.19:80) Conflict Transformation The Gandhian Legacy Conflict is a normal part of our daily lives and is an important dynamic in personal growth and social transformation. Streamlining or transforming the conflicts beyond mere settlement or resolution is the Gandhian agenda. Gandhi had persuaded one of his co-workers and client Parsi Rustomji 22 to confess before the authority and not to go forward with the case as he was the real culprit. 116

16 By transformation of a dispute we mean a change in its form or content as a result of the interaction and involvement of other participants in the dispute process. Transformation is continuous, beginning when one party initially perceives a grievance against another. Both Galtung and Naess admit that the goal of Gandhi through satyagraha was not to resolve conflict, but to achieve self-realization. For Gandhi, resolving the conflict is just one outcome of the process. The term 'conflict transformation' seeks to exploit the full potential of positive transformations that can be achieved when a conflict emerges instead of being narrowly focused on settlement of the immediate issue in question' (Khoshoo and Moolakkattu, 2009:29). Recently, a growing number of theorists are rejecting the notion of conflict resolution as such, in its place they talk about conflict transformation. The radical and socially transformative objectives of Gandhian social theory are also echoed in the modern conflict transformation models associated with peace building from below. Some authentic practitioners of conflict resolution have recently argued that mediation has the potential to do more than produce agreements and improve relationships. They go so far as to argue that it can transform people s lives (Bush & Folger, 1994: xv). They make the very Gandhian point that conflict affords opportunity for moral development and that the role of the mediator is not only to find solutions to problems but also to change people themselves for the better ; they complain that this potential has largely been overlooked (Weber, 2001b:509). Even the resolution process is phased in such a way that the conflict leads to a deep transformation in the parties and their relationships and in the situation that created the conflict (Miall, et al, 1999:21). First, in Gandhi s approach, attempts should be made to resolve all conflicts, and attempts should be made to convert all opponents so that the parties end up on the same side. If, however, this is not 117

17 possible, it provides a way of fighting for justice that minimises the possibility of excluding the chance of later conversion taking place. Second, while winning is not rejected totally (after all, Gandhi wanted his immediate goal of freedom for India to prevail, albeit without humiliation for the opponent), the main aim of conducting conflict may be something beyond winning or losing or even beyond a win-win resolution of the dispute at hand. It may have more to do with an existential transformation of the individuals involved. The Gandhian conflict process also goes well beyond conflict resolution to personal integration (or transformation) at a deeper level (Weber, 2001b). Bush and Folger see this transformative process coming about through two effects: empowerment and recognition (1994:2). Recently this approach has been utilized in victim/offender mediations, but perhaps its value has not been taken as far as it could be. Some theorists feel that the transformative dimensions of mediation, that is, empowerment and recognition, matter more than the settlement, not only because of their intrinsic value but also as expressions of a much broader shift to a new moral and social vision' (Weber, 2001b; Bush and Folger, 1994:4). According to Gandhi, satyagraha is not only a useful technique for the resolution of conflicts, and the satyagrahi is far more than a mere practitioner of a certain skill. The satyagrahi is the embodiment of an ideal, and the satyagrahi lifestyle is the lifestyle worth living. In claiming that a person s highest duty in life is to serve mankind and take his share in bettering its condition (CWMG, Vol.6:294), Gandhi was making the point that the ultimate congruence of the self and the other means that the highest form of morality is the practice of altruism. While self-suffering was quite likely to be a consequence of altruism, Gandhi was firmly convinced that to suffer wrongs was less degrading than to inflict them (Weber, 2001b:510). 118

18 4.6. Gandhi and Modern Conflict Resolution Theory For many Indian scholars, Gandhi is the father of the nation, and their examination of Gandhi s techniques tends to relate to political activism and the freedom struggle. Not surprisingly, it is the Western analysts of Gandhian thought who have undertaken what little exploration there has been of Gandhi s satyagraha in terms of conflict resolution. Galtung (1992: 94-96), echoing Naess (1974: 70-85), summarizes Gandhi s conflict norms in such a way that at least parts of them could almost seem to have given rise to or have been derived from the integrative conflict resolution literature. The first norm relates to goals and conflicts, and states that one should act in conflicts; define the conflict well (state your goals clearly, try to understand the opponent s goals, emphasize common and compatible goals, state conflict relevant facts objectively); and have a positive approach to the conflict (give the conflict appositive emphasis, see it as an opportunity to meet the opponent, as an opportunity to transform society and as an opportunity to transform the self). The second norm relates to conflict struggle and enjoins one to act non-violently in conflicts (do not harm or hurt with words, deeds or thoughts, do not damage property, prefer violence to cowardice, do good even to the evil doer); to act in a goalconsistent manner (by including constructive elements, using goal- revealing forms of struggle, acting, acting openly rather than secretly, and by aiming the struggle at the correct point); not to cooperate with evil (do not cooperate with evil structures, status, action or with those who cooperate with evil); to be willing to sacrifice (by not escaping from punishment and being willing to die if necessary); not to polarize the situation (one should distinguish between antagonisms and antagonists, between persons and status, one should maintain contact with opponents and have empathy for their position, and be flexible in defining parties and positions); not to escalate (by remaining loyal, not provoking the opponent or allowing oneself to be provoked, by not 119

19 humiliating or allowing oneself to be humiliated, by not expanding the goals of the conflict and by using the mildest forms of conflict behaviour). The third and final norm relates to conflict resolution, and it directs that conflicts should be solved (do not continue the struggle forever, always seek negotiation, seek positive social transformation and seek transformation of both the self and the opponent); that one should insist on essentials rather than non - essentials (do not trade with essentials, be willing to compromise on non-essentials); that one should see oneself as fallible (be aware that you may be wrong, admit your mistakes, maintain consistency over time); that one should be generous with opponents (do not exploit their weaknesses, do not judge them harder than yourself, trust them); and finally that one should aim for conversion rather than coercion (seek solutions that can be accepted by both you and the opponent, never coerce the opponent, convert the opponent into a believer of the cause, or, as Galtung implies, be open to being converted yourself) (Weber, 2001b:494). Gandhi s own statements readily reflect these principles: A satyagrahi must never forget the distinction between evil and the evil-doer (CWMG, Vol. 46:289); the essence of non violence technique is that it seeks to liquidate antagonism but not antagonists themselves (CWMG, Vol. 75:167); it is often forgotten that it is never the intention of a Satyagrahi to embarrass the wrong doer ; The satyagrahi s object is to convert, not to coerce, the wrong doer (CWMG, Vol. 75:196); It is the acid test of non- violence that, in a non-violent conflict, there is no rancour left behind and in the end the enemies are converted into friends (CWMG, Vol. 74:131). In a conflict situation, for Gandhi, there is no other plan than adherence to nonviolence in thought, word and deed, and no other goal than to reach the truth (and ultimately the Truth). Because good ends can never grow out of bad means, the 120

20 opponent (for Gandhi there may be opponents but never enemies) is not forced to expose him or herself to loss. There is ideally no threat, coercion or punishment. Instead, in Gandhi s scheme, the idea is to undergo self suffering in the belief that the opponent can be converted to seeing the truth by touching his or her conscience, or that a clearer vision of truth may grow out of the dialectical process for both parties. Gandhi s writings often refer to arbitrations and even judicial adjudication as ways of resolving conflicts. It must be remembered, however that much of his energy was taken up with opposing large scale violent ethnic and religious conflicts, and in these situations anything that could calm passions was welcome. Given that the Mahatma had died decades before the advent of the alternative dispute resolution movement or before conflict resolution movement or conflict resolution literature had brought some sense of order to the terminology used in the field, it is not surprising that he used the term mediation interchangeably with arbitration. The Gandhian process of conflict solving sees the appearance of a case in an adjudicative tribunal as a failure of the parties to settle the dispute and emerge as the friends the model aims at. Adjudication generally precludes the Gandhian dialectic from ever coming into play between the opponents. Although it may be a truism, it must be realized that individuals often see no other choice open to them than to go to police or a lawyer owing to mistrust of the other disputant and a general feeling of impotence in being able to carry out their own negotiations. Even when a dispute is in the hands of lawyers a settlement may be reached short of actual adjudication, but rarely will one party see the other s point of view and have undergone a process of conversion, thereby removing the source of future such disagreements and the possible need for ensuing litigation (Weber, 1986). 121

21 The modern alternative dispute resolution (ADR) movement has established a system aimed at avoiding legal adjudication and giving disputants a measure of control over the outcome of disputes in something of a Gandhian spirit through the good offices of a mediator. It is the mediator s job to assist the parties to come to their own resolution of their dispute (Deutsch, 1973: ). There is no power to compel settlement; the disputants must rely on their own mutual agreement with assistance from the mediator and, because it is in their interest, they themselves make settlements work. While the outcome sought is an accommodation between the parties, it could lead to the conversion aimed at by satyagraha and so come close to Gandhian ideal. In other words, this level of third party involvement is not totally outside the parameters of the ideal Gandhian conflicting process, as adjudication or even arbitration would be. After all, Gandhi himself took pride in being a third party assistant in so many disputes (Gandhi, 1940; 97, Weber, 1986; ). In short, while the Gandhian conflict process is generally seen as a bilateral one, Gandhi himself may have perceived a role for mediators similar to the one advocated by the champions of transformative conflict as aiding in spiritually and morally enriching process by not merely going beyond issues of power and rights and rights, but even those of interests, to ones of relatedness (Dukes, 1993:50). None of the authors of the popular books espousing the new winwin models acknowledge any debt to Gandhi. Although it seems that the theoretical work on which this new literature is based cannot be causally linked to Gandhi s satyagraha, the two bodies of knowledge are complementary in principles and goals. Further the empirical literature while not going as far as Gandhian theory, does seem to provide reasonably strong backing for the validity of the Gandhian approach to conflict resolution grew out of a life time of conducting conflict and seeking truth for the Mahatma. Practitioners and popularisers of both disciplines could gain much by realizing that they are in fact part of the same 122

22 discourse. They could profitably read that part of the literature that is unfamiliar to them in order to help them better conceptualise conflict resolution. And perhaps skilled mediators could consider whether, consistent with Gandhi s approach, there may be broader normative and transformative dimension in their search for integrative agreements Review of Gandhian Literature on Conflict Resolution Theory Gandhi's well known examples of non-violent resistance and writings on his technique acted as a starting point in the growth and development of conflict resolution literature. Thomas Weber observed that, Gopinath Dhavan's The political Philosophy of Mahatma Gandhi (1946) 23 is a typical one. 'While it contains section on social conflicts, religious conflicts and economic conflicts, the book is really a detailed study of satyagraha, and was written while the Mahatma was still alive, well before the advent of modern conflict resolution literature. The terminology, therefore, is quite distinct' (Weber, 2001b: 496). Chatterjee (1974) has tried to show that the apparent contradictions between the idealist postulates of satyagraha and the structural characteristics of the same as viewed from a game frame work, can be resolved. His observations were supported with empirical study, on a series of satyagrahas resorted to by a group of encroachers in Angarkata 24. Chatterjee pointed out that the study laid down some promising paths of further probes into the possibility of evolving an appropriate game model for satyagraha. He states some advantages of the inquiry as: 1) To indicate the structural constraints under which the satyagrahis as well as the opponents, enjoying constitutional and legal safeguards, are placed. 123

23 2) To show the more promising lines along which negotiations, bargaining and compromise may be directed, so that modifications in pay-offs or perceptions thereof, may be effected, favoring the emergence of 'natural' and mutually profitable solutions. 3) To throw light on the limits of concession which each of the parties may stretch themselves to grant, before negotiations break down. (Chatterjee, 1974:28). 'Gandhi provides a coherent and workable mechanism for conflict resolution; unfortunately it has not received the attention it deserves' (Chandrasekaran, 1990). This comment is from an Indian writer in Gandhi Marg, a scholarly journal for Gandhian and peace studies. To a larger extent, Thomas Weber, Melbourne's La Trobe University professor has commented that there has been 'mutual ignorance' (Weber, 2001b) between the Gandhian techniques and modern conflict resolution theory and praxis. He authored many books on this line and published a dozen scholarly articles in international journals. He has been researching and writing on Gandhi's life and thought for almost twenty years. His articles and books mainly focus on non violent direct action based on satyagraha. He successfully intertwined the two bodies of knowledge- concerning Gandhian satyagraha and modern conflict resolution theory and its practical application as advocated by the negotiation guide books. Weber's Conflict Resolution and Gandhian Ethics is a pioneer one in this field, which was published by Gandhi Peace Foundation in India. Many other works have been brought out in recent years that laid emphasis on the relation between Gandhian ethics and conflict resolution. One among them is Gandhi's way- A Hand Book of conflict resolution by Mark Juergensmeyer, sociology professor at University of California. Gandhi's method of fighting has two dimensions; one is to imagine a solution that includes the best features of both the sides. Gandhi pioneered in what is now called the 'win-win' approach to conflict resolution. The second is an 124

24 innovative one to incorporate the solution into the struggle itself. In Gandhi's view, the way you fight and the goal for which you are fighting are the same (Juergensmeyer, 2003: ix). The first of the three parts of the book is an attempt to give an introduction to Gandhi s way of fighting and his approach to conflict resolution. As a conclusion of the first part, Juergensmeyer listed step by step a set of basic rules for Gandhian conflict resolution. 1 Do not avoid confrontation. Avoidance simply prolongs underlying conflicts. Encounters between positions bring clarity. 2 Stay open to communication and self-criticism. Critical perspective is needed to sort out truth from untruth. 3 Find a resolution and hold fast to it. Seize on to harmonious alternatives, but be willing to challenge and change them. 4 Regard your opponent as a potential ally. Do nothing to harm or alienate your opponent. Your goal is to join forces to struggle against untruth. 5 Make your tactics consistent with your goal. Ensure consistency between ends and means. Good end could be reached only by good means. 6 Be flexible. Be willing to change tactics, alter goals, and revise notions, including those of your opponent and your conception of truth. 7 Be temperate. Escalate your actions by degrees. Opponents should not feel intimidated, thereby fostering communication rather than defensiveness. 8 Be proportionate. Determine trivial vs. important issues. The basis for judgment is the degree to which life and the quality of life are abused. Mount a campaign of strength equal to that of the opponent. 125

25 9 Be disciplined. Especially when involving large numbers for collective action. Make certain your position is coherent, consistent, and committed to non-violence. 10 Know when to quit. Deadlocked campaigns or ones with negative results may require revision in tactics or a change of goals. Concession, without agreement on principle is not victory. Victory can only be claimed when both sides can say the same. Winning in the Gandhian sense requires a transformation of relationships. Five case studies from domestic disputes to protest against nuclear weapons are in the second third part. In every case he analysed the structure of the conflict and some solutions are suggested on Gandhian lines. Mark Juergensmeyer (2003) has put Gandhi s ideas to a different sort of test in the third part of his book. This is an imaginary dialogue between Gandhi and western three social thinkers, namely, Karl Marx, Sigmund Freud and Reinhold Niebuhr. He raised some questions about the gaps in Gandhian theory and practice. But he does not discard the possibility of Gandhian approach. Finally Juergensmeyer states, 'it (Gandhian way) holds out the prospect of being able to fight yet at the same time be moral, to settle conflicts at their most basic levels, and to find resolutions in which both sides emerge as victors' (Juergensmeyer, 2003: ). The present conflict resolution which depends on an impartial third party who enables those in conflict to reach an agreement has been criticised as value neutral, which does not have any possibility for moral judgements of the effects of a power imbalance on the interaction. Scholars like Francis (2002) point out that to motivate the higher power party to come to the table at all, some shift in power relations must occur; otherwise the status quo is preferable. Thus there are situations where third parties have to become advocates of the lower power group s struggle for justice and equality in solidarity with them. According to Francis, conflict transformation is a blending of Gandhian 126

26 nonviolent advocacy with conflict resolution dialogue. That is the true peacemaking involves both the struggle for social justice and equality and the skills necessary to move from confrontation to discussion. Also she addresses the importance of cultural sensitivity in conflict transformation. It is mentioned that there is a danger that conflict resolution as offered by westerners, can seem patronising or even undermining the will of the disempowered to fight for their rights. Francis says that conflict transformation grows around collective action and the notion of individual rights within society. A Gandhian scholar and activist William Baskaran in his book Indian Perspectives on Conflict Resolution described the right way of Gandhian path of conflict resolution with some practical experiences. Baskaran explored satyagraha, the Gandhian technique for conflict resolution, as a creative conflict for peaceful resolution of disputes in the midst of modern ways. According to him satyagraha has three dynamics that are essential for the waging of creative conflict. 1) Search for Truth. 2) Nonviolence. 3) Creative Self Suffering. He stated that self suffering in creative conflict includes facing official and unofficial brutalities and meeting the reaction to the provocative non violent direct action (Baskaran, 2004:53-55). He analysed the role of academics and NGOs in the field of conflict studies and resolution. 'Examining the various experiences and exploring new and creative alternatives in this field may clearly define the role of academics in the future' (Baskaran, 2004:14). Baskaran explored the possibility of Shanti Sena 25 (peace brigade), a nonviolent force for peace making as visualized by Gandhi. The major mission of this brigade is to make peace through conflict intervention, conflict regulation, conflict resolution, conflict transformation, nonviolent direct action and constructive work. Gandhi had tried, with only limited and temporary success, to establish a Shanti Sena (Peace Army) during his life time and after his death there were some further 127