Remembering the forgotten architect of our Constitution

Sir Benegal Narsing Rau (Image Credits – Hindustan Times)

Today marks the 136^th birth anniversary of Sir Benegal Narsing Rau (BN Rau). Most lawyers and law students remember Rau as a footnote in the making of our Constitution, since he served as the Advisor of the Constituent Assembly. Unfortunately, in law school discussions on the Constitution barely mention Rau or his contributions to the Constitution making and the eventual Constitution we adopted. At the outset I must concede that during my initial years at law school, I myself was unaware of Rau’s contributions and  he was just a name to be remembered for trivia as the man who served as the Advisor to the Constituent Assembly.

Rau was not only the drafter of the Constitution, but he was also responsible for the smooth functioning of the Assembly and ensuring that the debates in the Assembly were well-informed. In fact, Pt. Nehru had called him one of the principal architects of the Indian Constitution. Rau’s services were not restricted to the Assembly as he also had an illustrious career as a civil servant, a Judge, and most importantly as a patriot and a true representative of India.

Rau’s biographer Arvind Elangovan provides two key reasons for the inadequate mention of Rau’s name in the annals of our nation’s history. First, Rau stayed away from public eye and second, the history of our Constitution was written as a story of successful Indian nationalism, hence, political leaders were at its forefront and not administrators. Elangovan writes, “In the chronicles of the Indian Constitution, it is usually rare to see the name of Sir Benegal Narsing Rau mentioned with any prominence. There are at least two good historical reasons for the same. Firstly, Rau was a bureaucrat, a distinguished one, and as such played a vital role in the administrative machinery but mostly away from the public eye. Secondly, and perhaps more importantly, after independence, the dominant story of the Indian Constitution was written fundamentally as a story of successful Indian nationalism.”

In January 2017 an op-ed in The Pioneer had remarked that Rau’s 130^th birthday will be celebrated on 26 February, but no big leader or self-proclaimed statesman will remember him. Although I can’t bring a change in the outlook of our leaders, through this post I hope to educate my fellow citizens on the role played by Sir BN Rau not only in the framing of our Constitution but also in other spheres as well. I talk about his early years as a civil servant, his almost appointment as a Judge of the Federal Court, his role in the Constituent Assembly including his meeting with Justice Felix Frankfurter and many other interesting tales from his life.

A. Sheer academic brilliance and an apt administrator:

Rau was born on 26 February 1887 in South Kanara in present day Mangalore, Karnataka, into a family of intellectuals. He obtained a degree in English, Sanskrit and Mathematics from the Presidency College in Madras and thereafter studied at Trinity College, University of Cambridge on a scholarship. It is believed that Pt. Nehru was Rau’s contemporary at Cambridge and was an admirer of his scholarship.

After finishing his studies at Cambridge, Rau immediately appeared for the Civil Services Examination and cleared it. He was given a posting in his home state which he politely refused on grounds of fairness and impartiality. In a letter to the Civil Services Commissioner he wrote, “In regard to the province to which I have been assigned I beg to inform you that I have friends or relatives in almost every part of the Madras Presidency and also that my father possesses lands in the same province. It has been pointed out to me that in these circumstances it might be very difficult for me to perform my duties unhampered. I shall therefore be very thankful for a reconsideration of my case; and should it be possible, I request that I may be assigned to Burma.” This is one of the many incidents wherein Rau showed exemplary values and refused to compromise on his ethics.

Rau was ultimately posted in Bengal and spend fourteen years there. At the time, British India did not follow the principle of separation of powers strictly and hence, Rau served both as a member of the Executive and the Judiciary respectively. He was known for his expertise in constitutional affairs. Hence, in the year 1933, he was deputed to appear in the Third Round Table Conference in London on behalf of the Assam government to present its case before the Joint Select Committee of Parliament. The Committee was looking to develop a feasible system on filling up of seats of the new Council of States by election, and Governor of Assam Sir John Kerr recommended Rau’s name.

B. Almost a Federal Judge:

Despite having been trained as an executive officer, Rau had a temperament and preference for being a Judge. On his return to India, he was being considered for a Judgeship at the Calcutta High Court. However, the Government of India wanted his services for implementing the Government of India Act, 1935. The implementation of the Act required the revision of all existing central and provincial statutes so as to bring them in conformity with the Act. Rau accepted the government’s request. Elangovan writes, “The task involved enormous industry, a meticulous knowledge of the laws of the land and a high standard of draftsmanship. He accomplished it in less than eighteen months, thus enabling the constitution to be brought into operation without any delay.”

After ably completing this task, Rau was appointed as a Judge of the Calcutta High Court. It is believed that Sir Maurice Gwyer (Chief Justice of the Federal Court) was keen on having Rau as a Judge of the Federal Court. At the time, the minimum qualification for being a Judge of the Federal Court was an experience of five years as a Judge of a High Court. Since Rau had no experience as a High Court Judge, he was sent to the Calcutta High Court to obtain this experience. However, his tenure witnessed several interruptions and ultimately, he could not become a Judge of the Federal Court.  The first interruption was his appointment as the Chairman of the Court of Enquiry involving the dispute about wages and working conditions of Railways and second, his appointment as the Chairperson of the Hindu Law Reform Committee that was tasked to study the possible reforms that can be made in Hindu Law. Later when Rau was offered another judgeship in the High Court, he politely refused.

C. Backbone of the Constituent Assembly:

Rau was the drafter of the original draft of the Constitution which was debated upon by the Assembly. His draft contained 243 Articles and 13 Schedules. However, his work was not just restricted to preparing the first draft but also ensuring that the debates in the Assembly were well informed and reasoned. To this effect, Rau prepared a series of pamphlets titled ‘Constitutional Precedents’ which contained key features of the new Constitution, for the use of the members of the Assembly. His pamphlets were appreciated by Pt. Nehru himself for their research and objectivity. Pt. Nehru wrote in a note, “Sir B.N. Rau has prepared a number of leaflets and pamphlets on the various issues before the Constituent Assembly, I have read most of them and I find them very helpful. I think they certainly need to be printed in convenient book form all together and sent to all the members of the Constituent Assembly. The pamphlets have been written very objectively and not with a view to support any particular thesis.”

Rau had also circulated the questionnaire to all the members of the provincial legislatures to obtain their views, and incorporate them in his draft of the Constitution.

In the process of drafting the Constitution, Rau was also deputed by the President of the Constituent Assembly to visit other countries and meet their leading constitutional experts. As a result, Rau met Chief Justice of the United States Supreme Court, Former Chief Justice Hughes, Justice Frankfurter, Justice Thorsen (President of the Exchequer Court), Justice Learned Hand etc. Two meetings of Rau were very interesting and deserve a mention here.

First, on 19 November 1947 Rau met President Harry Truman. Having lost the mid-term elections, Truman advised Rau to not copy the provisions concerning mid-term elections from the US Constitution. Rau assured him that India’s President and the House of People would have fixed tenures. Truman requested Rau to send a copy of the Indian Constitution once it was enacted, adding that he might borrow a point or two from it.

Second, Rau met Justice Felix Frankfurter of the US Supreme Court. Rau shared the first draft of the Constitution with Frankfurter who objected to the inclusion of the provision that “no person’s life or liberty could be taken away except by due process of law”. This phrase was borrowed from the US Constitution and Frankfurter warned him that this phrase could be used by the Judges of the Supreme Court in the future, to invalidate economic and welfare laws duly enacted by the parliament. The phrase “due process” was later replaced with “procedure established by law” by Rau.

Justice Frankfurter was so pleased after meeting Rau that he is believed to have remarked to the then Secretary General of the Ministry of External Affairs that, “If the President of U.S.A. were to ask me to recommend a Judge for our Supreme Court on the strength of his knowledge of the history and working of the American Constitution, B.N. Rau would be the first on my list.”

C. A True Patriot:

Rau was also a true patriot and offered his services whenever the nation needed him. During the INA Trials in Red Fort, wherein three officers of the Indian army who had joined Netaji Subhash Chandra Bose’s forces were tried, Rau acted as the brain behind their defence. He had drafted a memorandum of defence which was used by Shri Bhulabhai Desai, the lawyer for the officers.

In the year 1948, Rau was sent on the Indian delegation to the UN General Assembly to defend India’s position against an appeal filed by the Nizam of Hyderabad challenging India’s intervention in the state. In fact, the brief on the subject was prepared by Rau in close consultation with Prime Minister Nehru and Home Minister Sardar Patel. Later, Rau also served as India’s Ambassador to the Security Council and dealt with issues of Kashmir, atomic energy, future of Italian colonies etc. Rau’s dedication for the nation’s cause was evident from the fact that within four weeks of undergoing an operation for cancer, he was arguing the case on Kashmir at the Council.

Although Rau could not become a Judge of the Federal Court in India, he served as a Judge of the International Court of Justice at The Hague. His name was first proposed in the year 1948 but could not get necessary votes, however, in the year 1951 he was easily elected to the Court. On Rau’s appointment to the Court, Justice Frankfurter sent him a latter congratulating him for taking his rightful place as a Judge.

The letter read,

“Remembrance of you will, I am confident, be among the very last to fade. My talks with you (in October 1947) were among the pleasantest and most satisfying of all my experiences in Washington. On more than one occasion I said behind your back-and so I shall dare offend your modesty and say it to your face-that you are one of the few people I ever encountered who had a deep, instinctive sense of justice. I begrudged the years you gave, I am sure conscientiously, to diplomacy and rejoiced when you took your rightful place on the court.”

A forgotten hero:

Rau’s role and efforts in the making of our Constitution were lauded by the stalwarts of the Constituent Assembly. President Rajendra Prasad remarked that Rau’s detailed knowledge of other Constitutions and India along with his administrative experience significantly helped the Assembly and ensured it worked in a business-like manner. Chairman of the Drafting Committee Dr. Ambedkar in fact called for crediting Rau as the chief drafter of the Constitution. Pt. Nehru called him one of the principal architects of the Constitution. In fact, on his death the Parliament made an exception and allowed a reference for a non-member. Speaker GV Mavlankar on the occasion had remarked,

“Although, as stated by the Hon. the Leader of the House, it is not the practice in this House to make references to the passing away of non-Members, either of this Parliament or its predecessors, when the Hon. the Leader of the House asked me as to whether I could permit him to make a reference, I instinctively felt that I must, because the case here is quite exceptional.”

While Rau’s peers valued his contributions to the nation, his name was slowly relegated to a footnote by the successive generation of leaders. In our debates on the Constitution, Rau and his views are barely featured, which is a gross injustice and disservice to his contributions. An op-ed had rightly remarked that Rau does not live in the hearts of Indians as the maker of the great Constitution of India, a feeling which in my opinion must change. Through this post, I have aimed to do that.

Remembering him. Om Shanti.

---

For this post, I have relied on the following sources:

a. Norms and Politics: Sir Benegal Narsing Rau in the Making of the Indian Constitution, 1935-50 by Arvind Elangovan

b. The Constituent Assembly of India: Recollecting Contributions of Sir Benegal Narsing Rau, the Constitutional Adviser by Uma Narayan

c. The Curious Case of ‘Due Process’ in the Indian Constitution by Vikram Raghavan