B. N. Rau –Retrieving the Lost Memory in the Constitution Making from the Labyrinth of Competitive Politics Dr. A. Raghu Kumar avadhanamraghukumar@gmail.com

“The distinction between the past, present, and future is only a stubbornly persistent illusion” Albert Einstein

Nations being governed by the Constitution, the grund norm in Hans Kelsen’s diction, is a modern phenomenon. The idea of attempting a constitution for the guidance of the general conduct of societies gained momentum with the French Revolution (1789-1799), the American War of Independence (1775-1783), and its constitution making in these two countries. But both countries and its peoples remember its makers vividly even today. Constitutions are made with longtime visions of the nation in view and are made mostly in generally defined terms, with fewer particularities. The nuances are left for the future dispensations. The opportunity of participating in the making of the Constitution of a nation rarely comes and when it comes, the men with wisdom and living with a sense of presence can never refuse to take the burden unto them, and mostly with unbound enthusiasm. Such an occasion came to Indian people by the end of 1945-1946. When the Cabinet Mission made its plan public on 16 May 1946, the whole nation waved with new passion.

Granville Austin , in one of the best and most precise account of the making of the Indian Constitution noted: “Gandhi expressed the truth of the necessity of Constituent Assembly first – that India must shape their own destiny, that only in the hands of Indians could India become herself when in 1922 he said that Swaraj would not be the gift of the British Parliament, but must spring from ‘the wishes of the people of India as expressed through their freely chosen representatives.” The Indian National Congress made the demand for a constituent assembly part of its official policy since 1934. Rejecting the White Paper of 1933, released by the British-India Government, known also as “The proposals for Indian Constitutional Reform”, the Congress Working Committee resolved: “The only satisfactory alternative to the White Paper is a constitution drawn up by a Constituent Assembly elected on the basis of adult franchise or as near it as possible, with the power, if necessary, to the important minorities to have their representations elected exclusively by the electors belonging to such minorities.” Thereafter, in many provincial legislative assemblies and in the central legislative assembly in 1937, at the Congress at Faizpur, Haripura, and Tripuri, and at the Simla Conference in 1945, the Congress reiterated that India could only accept a constitution drawn from the people and framed ‘without any interference by a foreign authority.’

Britain accepted the idea that an elected body of Indians should frame the Indian Constitution. It was in this atmosphere that the newly elected Labour Government announced in September 1945 that it was contemplating the creation of a constituent body in India and ordered that national elections be held during the winter so that freshly created provincial legislatures would be ready to act as electoral bodies for a constituent assembly. The British government followed this move in January 1946 by sending a Parliamentary Delegation to India, which reported that the tide of independence was running fast, and then by dispatching a Cabinet mission in the following March. The Indian Independence Act passed by the British Parliament came into effect on 15 August 1947, giving legality to the Constituent Assembly, the status it had assumed since its inception. The Cabinet Mission Plan became outmoded, and the Constituent Assembly settled down to draft free India’s constitution.

Austin observes that: ‘The Constituent Assembly was a one-party body in an essentially one party country. The Assembly was the Congress and the Congress was India.’ ‘The Assembly, the Congress and the Government were, like the points of a triangle, separate entitles, but, linked by over-lapping membership, they assumed a form infinitely meaningful for India.’ In the elections held for the Members of the Constituent Assembly, of the total 1585 seats in the provincial assemblies, the Congress won 925 or 58 per cent. Although the outcome of the Assembly elections in July 1946 had made the Congress master of the Assembly, party policy ensured that Congress members there represented the country. After partition, when the composition of the Assembly, except for the representation of the Princely States, had become settled, the minorities were ensured that they had 88 of the 235 seats allotted to the provinces, or 37 percent, of the provincial membership. Additionally, as has been pointed out, the ideological spectrum of the Assembly was broadened by the inclusion of non-Congress ‘experts’ as well as by the diverse nature of the Congress membership itself. In the words of K.Santhanam , ‘There was hardly any shade of public opinion not represented in the Assembly.’

Nehru, Patel, Prasad, and Azad, in fact, constituted ‘an oligarchy’ within the Assembly. Austin said about their role in gripping terms: ‘their honor was unquestioned, their wisdom hardly less so. In their god-like status they may have been feared; certainly they were loved.’ The Congress Assembly Party, a unit formed by Congress for overseeing the Constitution making process, was the unofficial and private forum that debated every provision of the Constitution, and in most cases decided its fate before it reached the floor of the House. ‘Every amendment and every provision suggested … was put before the Congress Party and then it was finally debated upon and passed with or without amendment by the Assembly, which alone had the final say in the matter.’ Ambedkar’s advice, in legal matters and drafting rather than on policy, was frequently sought.

The uniqueness and significance of Indian Constitution lies in its very making. H. R. Khanna , the celebrated judge of the Supreme Court, who through his stunning opinions shook the conscience of the nation in the habeas corpus case of ADM, Jabalpur, in Kesavananda Bharati case, and in the Indira Gandhi’s case, said: ‘When the Constitutional Convention to draft the Constitution of the United States met in 1787 behind closed doors, it adopted at a very early stage a rule “that nothing spoken in the House be printed or otherwise published or communicated without leave.’ ‘As against that the proceedings of the Constituent Assembly which framed the Constitution of read like an open book.”

Most of the famous world Constitutions – either of America, French, USSR etc., are the creations of few unelected, self considered intellectuals or chosen representatives of the people in power. In contrast, India Constitution represented the broader element of representative character, though not of absolute adult franchise. In the pre-partition scenario, the total members were to be 389 – 292 from the Provincial Councils, 93 from Princely States, 4 from the Chief Commissioners’ Provinces. After the boycott of the Muslim League, the total Members were reduced to 299. Though the election of members was based on the qualified adult franchise based on the 1935 Act, ‘which excluded the mass of peasants, the majority of small shopkeepers and traders, and countless others from the polls through tax, property, and educational qualifications,’ and in the final count only 28.5 per cent of the adult population could vote in the provincial assembly elections of early 1946’, ‘the Congress and its candidates covered a broad ideological spectrum.’

Although the outcome of the 1946 elections, coupled with the exit of the regions of the present Pakistan and Bangladesh, ‘made the Congress master of the Assembly, party policy ensured that Congress members represented the country.’ After the partition, when the composition of the Assembly, except for the representation of the Princely States, had become settled, the minorities had 88 of the 235 seats allotted to the provinces, or 37 per cent of the provincial membership. The Congress even ensured regional imbalances by accommodating almost one per every 10 lakh population. Minority representation was Nepalis – 1, Sikhs – 5, Parsis – 3, Christians – 7, Anglo-Indians – 3, Backward Tribes – 5, Muslims 31 and Scheduled Castes – 33.

The Congress ensured the presence of even non-Congress members. The non-Congress members who were elected under the direction of the Congress High Command included Dr. Ambedkar, Alladi Krishna Swamy Ayyar, H.N. Kunzru, K. Santhanam, M.R. Jayakar, Bakshi Tek Chand and Gopala Swamy Ayyangar. Even though officially Communist and Socialist groups and even the Hindu organizations such as Hind Maha Sabha and RSS boycotted the Constitution, Congress ensured that some members represent their views. On the whole 20 Members – Nehru, Patel, Prasad, Azad, Ambedkar, Pant, Sitaramayya, Ayyar, Gopala Swamy Ayyangar, K.M. Munshi, Satyanarayan Sinha, M.A. Ayyangar, Jiaramdas Daularam, Shankarrao Deo, Durgabhai Deshmukh, J.B. Kripalani, T.T. Krishnamacharya, H.C. Mukherjee, N.M Rau, and Mohammed Sadulla played very active role. They even ensured the presence of a communist in Somnath Lahiri and of the Hindu outfits in M.R Jayakar and Shyam Prasad Mukherjee etc.

The activities of the Constitution making were in fact organized where ‘the Assembly, the Congress and the government were like the points of a triangle, separate entities, but, linked by over-lapping membership, they assumed a form infinitely meaningful for India.’ The role of Dr. B. R. Ambedkar as the Chairman of the Drafting Committee, and the concerted activities of ‘the Oligarchy’ – consisting Nehru, Patel, Rajendra Prasad and Maulana Azad – who played the role of the elderly in conducting the deliberations in a conducive atmosphere and without any hiccups is well documented. The Constituent Assembly met for the first time on December 9, 1946 and continued its deliberations till November 26, 1949 on the day when it was finally adopted. In these two years 11 months and 18 days, it sat for 169 days in 12 sessions and in the form of 22 Committees.

But there was one key person who prepared the initial Draft Constitution for consideration of the Assembly, and which was debated, modified and adopted on 26th November, 1949 and came into effect on 26th January, 1950. He was also the person the Assembly consulted as the final statement on almost all the important Articles. In the competitive political environment of the post-Mandal and post-Babri Masjid, slowly this great administrator, judge and jurisprudent lost his ground in the area of discussion in the Indian constitution making for more political reasons. Many law students, even while specializing on Constitutional law in their graduate or post-graduate levels dismay when asked about this forgotten hero – Sir B. N. Rau, and his role in the constitution making. This less sung and forgotten hero in the memory lane of the Constitution making in the post- 1990’s milieu was the one who submitted the basic document for the Assembly to debate and deliberate.

Austin said on the role of Sir Rau : “One more individual, B.N Rau, must be placed among those important in the framing of the Constitution. As Constitutional Advisor, Rau’s advice was heard in the Assembly’s inner councils, although he was not an assembly member. A legalist, an eminent advocate and judge, a student of constitutional history, and an able draftsman, one of the more Europeanized intellectuals in the Assembly, Rau looked to Euro-American constitutional precedent perhaps even more than other Assembly members for the divices to be used in Indian Constitution.” In fact, the Congress formed a party unit within, well known as the Assembly Party, which also played an important role in the Constitution making. “Every amendment and every provision suggested … was put before the Congress Party and then it was finally debated upon and passed with or without amendment by the Assembly, which alone had the final say in the matter.”

The contribution of Rau can also be gauzed from the very statement of Dr. B. R. Ambedkar. On 29 August 1947 the Constituent Assembly passed a resolution to constitute a Drafting Committee. The Constituent Assembly’s resolution setting up the Drafting Committee, under the Chairmanship of B.R. Ambedkar, declared that it was being set up to scrutinize the Draft of the text of the Constitution prepared by the Constitutional Advisor giving effect to the decisions taken already in the Assembly and including all matters ancillary thereto or which have to be provided in such a Constitution, and to submit to the Assembly for consideration to text of the Draft Constitution as revised by the Committee. Even in his concluding speech in constituent Assembly on November 25, 1949 Dr. B.R. Ambedkar 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 Drafting Committee. A part of the credit must go to the members of the Drafting Committee who … Much greater share of the credit must go to Mr. S.N. Mukherjee, the Chief Draftsman of the Constitution. … The task of the Drafting Committee would have been very difficult one if the Constituent Assembly has been merely a motely crowd … The possibility of chaos was reduced to nil by the existence of the Congress Party inside the Assembly which brought into its proceedings a sense of order and discipline. … The Congress Party is, therefore, entitled to all the credit for the smooth sailing of the Draft Constitution in the Assembly.” Dr. Rajendra Prasad, the President of the Assembly also said Rau ‘was the person who visualized the plan and laid the foundation’.

Constituent Assembly Secretariat (CAS), set up in May 1946, as an interim bureaucratic agency tasked with helping drafting of the Constitution. Sir Rau, the Constitutional Advisor, along with S.N. Mukherjee, the Joint Secretary – together played an important role of Chief Draftsman of the Assembly. Before taking over as Advisor, he defined the character of the Secretariat – “The whole organization is non-political in character. Its services are equally available to every member, irrespective of party and creed.” With the Assembly’s seal of approval on parliamentary principles, the drafting of the constitution was handed over by the Assembly to its Drafting Committee and to the Constitutional Adviser, B.N. Rau. The Assembly then adjourned for more than a year. Rau produced his draft in a month. From October 1947 until mid-February 1948 the Drafting Committee was busy converting this document into the Draft Constitution – which consisted primarily of the committee’s borrowed and modified provisions of the British and American Constitutions and the 1935 Government of India Act.

Sir Benegal Narsing Rau (26 February 1887- 30 November 1953), famously known as Sir B.N Rau CIE, was an Indian Civil Servant, jurist, diplomat and statesman. A graduate of the University of Madras and Cambridge, Rau entered the Indian Civil Service in 1910. In 1934, New Year Honors’ List, he was placed as a Companion of the Order of the Indian Empire (CIE) and a knighthood in 1938. He was instrumental in revising the entire Indian Statutory Code (1935-37), and was made judge of the Bengal High Court at Calcutta (Kolkata) in 1939. His tenure as the judge of Calcutta High Court was interrupted by two additional projects – to preside over a court of inquiry concerning wages and working conditions on Railways in India, and to work in the Commission for reforms concerning Hindu Law. He was also a Chairman of the Indus Waters Commission which submitted its report on riparian rights of India in 1942. He functioned briefly as the Prime Minister of Jammu and Kashmir 1944-45. After resigning as the Prime Minister of J&K in 1945, he was asked to serve in a temporary capacity in the Reforms Office of the Government of India to work on constitutional and federal issues. Later he was appointed as the Secretary in the Governor General’s Office, worked on constitutional reforms, until he became the Constitutional Advisor to the Constituent Assembly in 1946. He was also India’s representative to United Nations Security Council from 1950-1952. He was also a judge of the Permanent Court of International Justice, Hague between 1952 and 1953. He was regarded as a candidate for the post of Secretary-General of the UNO 1950s.

B.N Rau was responsible for the general structure of the Constitutional democratic frame work. He prepared an initial draft in February 1948. This draft was debated revised and finally adopted by the Constituent Assembly on 26 November 1949. As part of his research in drafting the Constitution, he travelled to U.S.A., Canada, Ireland, and the United Kingdom – held personal consultations with judges, scholars and authorities on constitutional law. Among others, he met justice Felix Frankfurter of the American Supreme Court, who advised him against the inclusion of a clause for ‘due process’ as the word imposes undue burden on the judiciary. But Rau’s suggestions in the course of the Assembly debates against this clause had originated on a different consideration – he considered the due process as one which put unwarranted burden on legislature and confers a right on unelected body like judiciary to veto the acts of the duly elected legislature.

When the Fundamental Rights Sub-Committee met for the first time on 27 February 1947, it had before it draft list of rights prepared by B.N. Rau, Shah, Munshi, Ambedkar, Harnam Singh, and the Congress Experts Committee, as well as miscellaneous notes and memoranda on various aspects of rights. Rau’s ‘draft rights’ were a rich source before the Assembly in addition to the extensive passages on rights in Rau’s Constitutional Precedents. Drawing on this mass of precedent, the sub-committee drafted the rights during the meetings held in March and April, 1947. Even during the framing of the Directive Principles, the most weighty support came for these principles from B.N. Rau and Ayyar, and secondly from Ambedkar and K.T.Sha – whose suggestions proved to be thoroughly liberal in outlook. It was beyond the common sense and even imaginative extent of many Members that such principles could be accommodated in th Constitution itself, more so when they were not justiciable.

Of the four, Rau was the most influential in this regard. He approached the question of fundamental rights, unlike Sapru, Ayyar, and many other British-trained lawyers, with certain skepticism. The difficulty of defining negative rights and then of effectively protecting them led him to skip this ‘controversial ground’, and instead to prefer to set out the positive rights merely as moral precepts for the State and to bar the interference of the ordinary courts. This belief, in turn, led to Rau’s acknowledged emulation of the Irish example of distinguishing between justiciable and non-justiciable rights, and so his putting the emphasis on precepts. His notes on Precedents during the actual drafting of the Directive Principles supplied the members of the sub-committee with authority necessary for the same.

In later months Rau publicly defended the Directives : ‘… Many modern constitutions do contain moral precepts of this kind’, he wrote in The Hindu in August 1948, ‘nor can it be denied that they may have an educative value.’ Had there been scope, he would also have lifted the Principles above the level of precepts. It may be occasionally necessary, he believed, for the States to invade private rights in the discharge of one of its fundamental duties – e.g. to raise the nation’s standard of health, of living, etc. But the Fundamental Rights being justiciable and the Directive Principles being without legal force, the private right may over-ride the public weal. It is thus a matter for careful consideration, he continued, whether ‘the Constitution might not expressly provide that no law made and no action taken by the state in the discharge of its duties under Chapter III of Part III (the Directive Principles) shall be invalid merely by reason of its contravening the provisions of Chapter II (the Fundamental Rights).’ In the course of the debates, Munshi, Ambedkar, and Shah had gone even farther than Rau. They even tried made the Directive Principles an even more rigorous social programme, ie., justiciable. They disliked mere precepts and in the end, supported them in the belief that half a loaf was better than none.

Another area where B.N. Rau’s advice to the Assembly had greater impact had been on the clause relating to ‘due process of law’. He was consistent that the committees should dispense with due process altogether. He considered that the courts, manned by an irremovable judiciary not so sensitive to public needs in the social or economic sphere as the representatives of a periodically elected legislature, and will in effect, have a veto on legislation exercisable at any time and at the instance of any litigant. He admitted that the clauses are a safeguard against predatory legislation, but they may also stand in the way of beneficent social legislation. He opined that it might be a wise idea to steer a middle course and to adopt the device in the Irish Constitution which provided that the exercise of certain rights be regulated by the principles of social justice.

But one area Rau’s ideas were not seriously taken remains to be the area of election and role of the President vis-à-vis the Cabinet. Rau suggested greater discretionary powers to the President. But in this regard the Assembly prevailed over Rau and limited the role of the President giving higher authority to the elected governments. Sarbani Sen quotes from K. M. Munshi : “But in acting as a constitutional counterpoint to the majority dominance in the Cabinet, any scope for arbitrary would have to be limited, and the Assembly took care to reduce or reassign the discretionary powers that Rau had initially considered for the president.” We can see in the constitution making of India that none is given a higher status, and that it was the collective product of the many and that is why it is the document of: “We the people of India. … ”. The tasks before the Assembly were accomplished by the collective will of all the members, and thus of the people of India, with ‘remarkable idealism and a strength of purpose born of the struggle for independence’ as commented by Austin in the preface to his great work.

Apart from being an able administrator and jurisprudent, Rau left a rich legacy of written contribution. B. N. Rau’s Constitutional Precedents in 3 Volumes, published by the Government of India Press (1947), New Delhi, his Explanatory Notes on clauses and Annexure to the Fundamental Rights Sub-Committee report and his another important work – The Parliamentary System of Government in India (1949), The Indian Constitution (Manchester : Manchester Guardian) speak volumes of his legal and administrative acumen and the range of his thoughts on constitutional and legislative theories.

Biswaraj Patnaik , in an article “B.N. Rau: The forgotten architect of Indian Constitution” wrote: “The Indian Constitution was drafted by a core committee of seven experts headed by Dr. BR Ambedkar. All were legal experts or administrative luminaries including Sri B.N. Rau, KM Munshi, N. Gopalaswamy Ayyangar, Alladi Krishnaswamy Ayyar, Syed Mohammed Saadullah, N. Madhava Rao ….” The writer however considered: “….Rau was not a member of the Constituent Assembly but was the most important expert who did the primary thinking and writing. He has been religiously ignored by frontline politicians who never gave him his due space in history. Rau is the principal framer of the Indian Constitution; others only did the cosmetic job here and there….” Rinchen Norbu Wangchuk quotes Ornit Shani, from her seminal work – “How India Became Democratic” saying ‘Rau was the leading authority in guiding the process of making the universal franchise from a constitutional perspective.’

On the occasion of India successfully completing 70 years of the Republic life, and still marching forward steadily, let us recollect the names of those great persons and pay our tributes to them who in more than one ways contributed to the making of the Constitution into a real republic with all the elements of modernity and ancient wisdom, and the much needed balance. One such person to be retrieved from the archives of the dusty files of the bygone era, and from the depths of the memory lane, and to be deservingly restored to his due place is B. N. Rau, the Advisor to the Constituent Assembly. There are many who lie ignored under the carpet of history who have no followers or vote banks to demand space but make their presence felt through their work. They even defy the ever increasing efforts of many to write and rewrite history and erase the public memory.