Sir Benegal Narsing Rau – The Unsung Architect of the Indian Constitution

Dhruv Singhal *

“If Dr. B. R. Ambedkar was the skilful pilot of the Constitution through all its different stages, Sri B. N. Rau was the person who visualized the plan and laid its foundations.”

- Dr. Rajendra Prasad[1]

Not only was the Constituent Assembly of India the culmination of a historic century-long struggle against foreign tyrants, but it was also the epitome of a moment in time, which was characterized by a peculiar and unparalleled existential insecurity that all nations undergoing decolonisation faced – one of succulent hope and bitter fears of disintegration.

The members of this esteemed Assembly were legal luminaries, academics, activists and politicians of the highest order, and it became a custom of the post-colonial Parliament’s Houses to make reference to any member of the Constituent Assembly who passed away. But on 30th November 1953, an exception was made for a civil servant who, in Nehru’s words, was “connected very intimately with … the Constitution under which the House is working.” Sri G.V. Mavalankar, the Speaker of the House, added that, though this person was not a member, he was inextricably interwoven in their present parliamentary life.

This man was Sir Benegal Narsing Rau – the Advisor to the Constituent Assembly of India, who prepared the Draft Constitution, along with the help of the Chief Draftsman, S. N. Mukherjee – which was to be reviewed by the Drafting Committee chaired by Dr. B. R. Ambedkar.

Born on 26th February 1887, Rau had always been an industrious student and it was no surprise when he went on to get a governmental scholarship to study at Trinity College, Cambridge. Nehru, who was also studying there, in a letter to his father, described Rau thus: “The Brahmin boy, … who is so frightfully clever … the only time I see him is in the Hall or going to the Hall or lectures. I believe he works all the rest of the time.”[2] This consistent work ethic got him many accolades later in his life.

His personality and his commitment to duty can best be gauged from the incident where, on being inducted into the civil services in 1909, Rau requested to be transferred from Madras to Bengal for he had “friends and family in almost every part of Madras presidency” and this would make it difficult for him to continue his duties unhampered and impartially.[3]

Subsequently, throughout his illustrious career, Rau held several posts in legal, constitutional, and judicial domains. One of his most significant contributions that has gone unrecognized was in the implementation of the Government of India Act 1935, which later earned him Knighthood as well.

Among the prominent administrators, Rau came to be known as an impartial authority to deal with contentious issues, between his efforts with the 1935 Act, and Indian independence. During this duration, he was a part of many commissions dealing with seminal issues, like the reform of Hindu personal laws (which went on to inspire Ambedkar’s Commission in 1946), inter-state boundary and riparian disputes[4] and reform in higher education.

After dabbling with the post of the Prime Minister of Kashmir and mediating between Indian National Congress and the Muslim League in the constitutional deliberations, owing to his intimate knowledge of constitutions, Rau was appointed as the advisor to the Constituent Assembly of India, formed under the Cabinet Mission Plan of 1946.

The Constituent Assembly remained unaffected by the horrific developments that had engulfed the nascent nation: the partition, its legacy of communal animosity, as well as the influx of millions of hapless refugees. By the autumn of that year, Rau had visited the U.S.A., Canada, Eire (Ireland), and the United Kingdom[5] to discuss with leading constitutional authorities of the countries, and had thoroughly comprehended the sinews of Western democratic alternatives.

He evinced his knowledge of various constitutional issues by citing the most appropriate historical precedents for any knotty situations that arose before and in the course of drafting. Lord Wavell, in a correspondence to Pethick-Lawrence, noted, “Rau has put notes to Nehru on historical precedents showing clearly that constitutions can only be made by negotiation and agreement and this advice may have had its effect on Congress.”[6]

In a bid to avert Partition and persuade the Muslim league, Rau drew a parallel between the demand for Pakistan and the case of Queensland[7], a province that initially kept out of the constitution-making process in Australia, but eventually gave in. His point was that, in the long run, a province loses more than it gains by keeping out of the Federation, and that the posterity may look at the moment in history and the makers of that moment with a sense of grievance.

Instead, through a comparative analysis of various jurisdictions, Rau argued for a common federal legislature for disparate provinces that may have very little in common, while ensuring provincial autonomy, so long as it did not destroy the integrity of the Union. To justify, he gave the example[8] of Canada’s multifarious and diverse provinces like Quebec, Ontario and Nova Scotia, among others – which came together on the principles of parity and compromise. The existing Indian blend of federal and unitary systems which is a legacy of this debate, was christened as ‘quasi-federal’ by Professor K. C. Wheare.

Even more contentious than Centre-State relations, was the question of the relationship between the State and the individual. With regard to Fundamental Rights, three approaches lay before the Constitution makers: first, enumerating all rights and leaving it to the courts to enforce them, second, enumerating them but rendering them legally unenforceable, or third, finding a middle path and making enforceable those rights which were more easily defined and leaving others as constitutionally obligated ‘moral precepts.’ Rau was in favour of the third approach.

Rau’s ideas were indisputably imbued with the utopianism which was characteristic of the nationalist zeitgeist. However, something that did distinguish his stance was the fact that he considered the constitutional imperative of development and effective governance above Fundamental Rights. So, while Granville Austin considers Part III and IV, collectively to be the ‘conscience of the constitution’, Rau considers the directives as superior[9].

He suggests that in case of conflict between the ‘fundamental rights’ concerning individual interests and ‘fundamental principles’ concerning the interests of the larger Union, the latter should take precedence. This statement was specially made in light of an Irish statesman’s account of his nation’s experience with making the right to property a legally enforceable right. He suggested that property rights should be made subject to the general welfare[10].

Rather than constitutionally enshrining Fundamental Rights, Rau believed that resolving social, political and economic inequalities was the duty of the state through its legislative powers. This perspective was laid out in the larger framework of the idealistic and utopian Constitution of which he was laying the foundation.

Taking the example of the United States, he expressed his fears about wide and conflicting judicial interpretations of the vaguely-defined Bill of Rights. On his visit there, Justice Felix Frankfurter of the Supreme Court of the U. S. had advised Rau against adding the “due process” clause in the Draft Constitution because the vagueness of its scope permitted the courts to invalidate social welfare legislation on capricious grounds. A case in point was Lochner v. New York, where the Court had nullified a law limiting the permissible working hours for bakery employees on the basis of liberty to contract.

Therefore, Rau made three changes to the Lockian clause in the 14th Amendment to the American Constitution that prohibited the State from depriving any person ‘life, liberty and property without due process of law’: firstly, the right to property was deleted from the due process clause to avert any hindrance to the envisioned land reforms, secondly, ‘liberty’ was qualified to become ‘personal liberty’ to avoid broad extrapolation, and lastly, instead of ‘due process’, a clause borrowed from the Japanese Constitution, ‘procedure established by law’ was incorporated which is a part of Article 21 till date.

Thus, Rau placed more faith in the legislators – the chosen representatives of the people, and the influence of public opinion, rather than the unelected judges. Nevertheless, he acknowledged that there was always the threat of legislative overreach, and therefore he did not want the Head of the State to be a mere titular or nominal head like in other parliamentary democracies, but an impartial umpire who could be an active check against an unbridled legislature.

Efforts were made in the Draft Constitution to make the President’s post adapted to the political vagaries of the unique Indian context in which he/she was to operate. In this, the President was conferred wide discretionary powers, in matters of “the appointment of judges, the protection of minorities, the suppression of widespread disorder…”. The incumbent could, in special circumstances, even overrule a minister and appeal for support from the legislature at first, and then the people at large[11]. The eventual deliberation on this provision led to its deletion, such that Article 74 of the Constitution does not mention ‘presidential discretion’ at all, while Article 163 makes a reference to gubernatorial discretion in certain cases.

What these conflicts show the contemporary observer is that the realities of politics often got in the way of Rau’s idealistic answers to the Indian conundrum. Even looking at how the postcolonial developments and jurisprudence unfolded, shows us that many changes were brought in the original Constitutional provisions relating to the federal distribution of powers, the relationship between rights and directives, and presidential powers, among others. However, the original intent of the Constituent Assembly itself is not sacrosanct. B. N. Rau himself, in an article in ‘The Hindu’, questioned the legitimacy of the Assembly which was indirectly elected – and thus, opened the constitutional deliberations to scrutiny and the possibility of change[12].

Nevertheless, Rau’s contributions and unwavering commitment to the task assigned were rightfully appreciated by Dr. Ambedkar in his concluding speech on 25th November 1949 where he said: “The credit that is given to me does not really belong to me. It belongs partly to Sir B.N. Rau the Constitutional Advisor to the Constituent Assembly who prepared a rough draft of the Constitution for the consideration of the Drafting Committee…”

Resigning from his post in 1948, in a moving letter to Dr. Prasad, Rau wrote that his job had been a “labour of love” all through, despite the difficulties that came[13]. But his resolve to serve the nation was far from over: he went on to represent India at the United Nations, at a crucial moment when issues like Kashmir and the Korean crisis were being taken up.

His international reputation only grew as he was elected to the International Law Commission in 1951, and then elevated to be the first Indian judge at the International Court of Justice at the Hague, in 1952.

It is a testament to the foresight of the makers of the Indian Constitution that they made eclecticism and cosmopolitanism ingrained in its fabric. From the Bill of Rights inspired by the United States to a commercial clause (Article 301) borrowed from Australia, from the Westminster model of Britain to the Irish Directive Principles, the Constituent Assembly makers cherry-picked the best aspects of the available democratic alternatives and adapted them to Indian conditions. This colossal exercise would have been impossible without Sir Benegal Narsing Rau – the unsung architect and foundation layer of the Constitution of India.

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* Dhruv Singhal is a 1st-year student at the National Law University, Jodhpur. This article was selected for publication as the winning piece in an essay competition organised by CCAL in collaboration with the Ministry of Law and Justice.

The views expressed above are the author's alone and do not represent the beliefs of Pith & Substance: The CCAL Blog.

[1] Sir Benegal Rau, India's Constitution in the Making 6 (Oriental Longmans Private Limited, 1960). [2] Arvind Elangovan, Norms and Politics: Sir Benegal Narsing Rau in the Making of the Indian Constitution, 1935-50 15 (Oxford University Press, 2019). [3] Id. at 17. [4] Supra note 1, at xviii. [5] Id. at xxii. [6] Supra note 2, at 169. [7] Id. [8] Id. at 171. [9] Id. at 194. [10] Supra note 1, at 310. [11] Id. at 70. [12] Abhinav Chandrachud, Due Process, in the Oxford Handbook of the Indian Constitution 817 (Oxford University Press, 2016). [13] Supra note 2, at 23.