BN Rau: An idealist and a staunch constitutionalist

In the chronicles of the Indian Constitution, it is usually rare to see the name of Sir Benegal Narsing Rau (1887-1953) 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 such accounts, the roles played by political leaders assumed importance, and the scope for recognising a bureaucrat like Rau remained severely limited. Nevertheless, it is important to educe Rau’s life and work, not simply because he played a vital role in the Constituent Assembly, the body that met between 1946 and 1949 to frame India’s Constitution, but also because he was perhaps the best example of someone who consistently embodied and exhibited a constitutional temperament to address the pressing political problems of the day .

This was remarkable since Rau embraced the idea of constitutionalism much before a formal Constitution was adopted in India. He laid the groundwork for the idea that the British constitutional structure in India that largely aided the interests of Britain could be translated and transformed to serve the needs of an independent India. This transformation and translation from the colonial to the postcolonial required a fundamental ability to view the nature and possibilities of the Constitution beyond its colonial origins.

While Rau was certainly not singular in viewing the potential of the constitution (Dr. B R Ambedkar was another), he was definitely at the forefront, which is a compelling reason to remember him, however briefly, as we mark the completion of 70 years of the Indian republic.

Rau was born on February 26, 1887 at Karkal in the district of South Kanara in southern India. After completing his education in Madras and at Trinity, Cambridge, Rau cleared the tough civil services examination in 1909 and, in fact, secured the 16th rank.

Rau’s career began in a most unusual way, and his constitutional outlook was immediately visible when he received his posting in his home province, in Madras. Quite strikingly, he refused to serve in Madras. As he explained to the civil services commissioner, “Dear Sir, 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.” Following this extraordinary request, Rau was transferred to Bengal.

Rau’s inclination towards constitutional matters was clear early on. He developed a keen interest in legislative and constitutional matters, which led to him being appointed as the Legal Remembrancer and Secretary to the Government of Assam in the Legislative Department and Council.

From 1935 onwards, Rau was at the centre of the major constitutional developments in India. By 1946, Rau was one of the more sought-after constitutional experts by all the major Indian political parties and the British government. With the establishment of the Constituent Assembly in 1946, he was a natural choice to be appointed as the constitutional advisor. In his final years, Rau became a truly global figure where he represented India in the United Nations and finally served as a judge in the International Court of Justice at The Hague.

He passed away on November 30, 1953 in Zurich, Switzerland. On his death, the former diplomat Girija Shankar Bajpai wrote in this paper, “By his death, Law and Learning have lost a person of outstanding stature.” India’s first Prime Minister Jawaharlal Nehru paid tribute to Rau in the Lok Sabha by describing him as the “perfect civil servant.”

Throughout Rau’s distinguished career, then, one can find fine instances of his constitutional temperament at work, whether it was in the numerous notes and memoranda he drafted as a civil servant, the many reports he authored as chairman of enquiry commissions, his judgments when he served on the Calcutta high court, or his speeches at the United Nations, to mention only a few.

Citing two instances in this regard would be helpful.

The first instance can be seen when Rau was appointed as an Officer on Special Duty (OSD) in the Viceroy’s Reforms Office to enable the implementation of the Government of India Act passed in 1935. As readers would recall, the act required the British government to transfer the running of provincial governments to Indian representatives elected by the people of those provinces. Once appointed, however, Rau found that in practice the various departments of British government in the provinces were somewhat reluctant to transfer such authority.

At issue was a central contradiction of the British Empire, one that the postcolonial theorists such as Homi Bhabha have extensively written about, namely that in order to maintain control of India, Britain had to transfer some sovereign authority to Indians, but every such transfer continually undermined the basis of the empire itself. In response, as OSD, Rau through various notes and memoranda written over a period of two years, argued that the 1935 Act had to be considered as a constitution and not as a piece of ordinary legislation.

As such, only by embracing the constitutional basis of its colonial authority could Britain resolve this conundrum. Even as Rau was working within a colonial administration and faced the political imperative of the empire to violate its own constitutional basis, he deployed constitutionalism to challenge this violation and set the stage for an argument for eventual complete transfer of sovereignty to India. Indeed, as we know, the 1935 Act became the basis of independent India’s Constitution adopted in 1950.

The second instance can be seen in Rau’s interventions amidst the politically volatile contest between the Indian National Congress and the Muslim League on the question of partition and negotiation with the colonial government on the question of independence.

Back in the Reforms Office at the request of then Viceroy Archibald Wavell (1883-1950), Rau began drafting a series of documents containing constitutional drafts to address the vital demand of the Muslim League for Pakistan. Amid continuing tensions, Wavell repeatedly encouraged MA Jinnah to meet with Rau, especially on the question of the working of the Constituent Assembly. After a meeting on September 18, 1946, and in response to the questions posed by Jinnah, Rau wrote a detailed note to Jinnah on September 22, 1946.

While in the letter Rau sought to convince Jinnah about the fairness of the Constituent Assembly, he underscored the same by saying, “A Constitution is only a means to an end, when by working together as a team, various parties realize that the ends are common, there will be little difficulty in agreeing upon the means.” Rau ultimately believed that the aims of addressing the socio-economic problems of the day would be common to both the Congress and the League. Hence, working together in the same government would be far more beneficial than separating.

After partition, Rau’s constitutional interventions demonstrated his marked interest in addressing the socio-economic problems of development. Interestingly, in Rau’s constitutional imagination, the Directive Principles assumed a much more prominent role than Fundamental Rights; the office of the President, he suggested, needed to be vested with additional discretionary powers to act in the event of a major breakdown of law and order in the country; and the basis of citizenship had to be as broad and inclusive as possible (as the scholar Ornit Shani has reminded us), to mention only a few.

Importantly, for Rau, while politics could fuel the process of representation in the Parliament, the actual task of running the government and the state machinery should not be unduly influenced by politics.

Rau’s work as the constitutional advisor proved to be enormously helpful to the Constituent Assembly. His expertise in not only British constitutionalism but also the working of constitutions from around the world greatly helped the members of the Constituent Assembly to find ready reference for various constitutional provisions. Indeed, a striking feature of the draft constitution that Rau produced for the members was the notations on the margins that indicated the origins of such provisions from other countries. This was one of the ways in which the framing of the Indian Constitution was not only a national enterprise but became fundamentally global in nature. Thus, Rau’s role was critical and vital in enabling India’s transition from a colony to an independent state through the Constitution.

Rau’s vision, however, was idealistic.

In the real world, as it were, politics played a defining role in both the making of the Indian Constitution and its working in independent India. But Rau’s interventions, evident in times of great political crises, especially ones motivated by intense partisanship (as in during the 1935 Act or at the time of independence and partition), suggest the remarkable palliative possibilities of constitutionalism. Today, the question for us is whether we will continue to privilege the politics of constitutionalism or will we allow the ideas of the founding document to constitute our politics. In Rau’s life and work, we find a clear answer.

(Arvind Elangovan is associate professor of history at Wright State University in Dayton, Ohio. His first book, Norms and Politics: Sir Benegal Narsing Rau in the Making of the Indian Constitution, 1935-50 was published in 2019)