BN Rau: Backroom boy at the heart of the making of India’s Constitution

The role played by these two figures was undoubtedly and undisputedly most important. However, in both these projects there were two individuals—unassuming, non-political actors, acting as 'backroom boys' who contributed immensely. They were Vappala Pangunni Menon and Sir Benegal Narsing Rau. Menon was a civil servant who played an important role in the political integration of India and Rau was the Constitutional Advisor to the Constituent Assembly.

BN Rau was largely obscured by history as a chronicle of India’s journey towards freedom is prominently defined in terms of watershed events and larger-than-life political figures. Arvind Elangovan’s book 'Norms and Politics: Sir Benegal Narsing Rau in the Making of the Indian Constitution, 1935-50' is the only book-length biographical account of the constitutional genius.

Before becoming the Constitutional Advisor to the Constituent Assembly Rau has held many important positions.

“Frightfully clever” Rau

Kanchan Karopady Bannerjee, author of 'The Benegal Brothers: An Extraordinary Family and the Making of Modern India' puts forward some interesting facts. According to Bannerjee, Rau was born in the same year as the legendary mathematician Ramanujam. She writes that Rau was a "brilliant student" with "exceptional intelligence" and did "tremendous hard work" that took him to Trinity College, Cambridge, on a government scholarship. She writes that Jawaharlal Nehru, who was also at Trinity College at the time, wrote to his father Motilal Nehru about the single-mindedness of Narsing Rau, '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", Nehru wrote.

Rau had the option of becoming a Fellow, but he chose to take the civil service examination and was the only Indian candidate to have passed the ICS in 1909. Rau worked as a District and Sessions Judge and later as a Legal Secretary to the Assam Government. Rau's legal acumen was on display at the Reforms Office of the Government of India, while drafting the Government of India Act 1935.

Rau was then appointed a Judge on the Calcutta High Court. Rau was also tasked with framing the uniform code for the Hindus in 1941. In 1944 after he retired from civil services, at the behest of Tej Bahadur Sapru he took the post of Prime Minister of the then princely state of Jammu and Kashmir.

Chronicling the fascinating legal journey of Rau, Bannerjee writes: “He was then offered a Judgeship on the Calcutta High Court, that he could qualify for appointment to the Federal Court, later to become the Supreme Court of India. But by now B. N. Rau's interest lay in being a creator of constitutional law rather than an interpreter. He replied to the Viceroy's Private Secretary, 'If personal prospects were all, a decision would have been easy; but I have now reached a stage in my official life when they ought to cease to count... I have spent over a dozen years in the study of constitutional law in general and Indian constitutional law in particular. I have had some share in the working out of the details of the federal scheme now taking shape. If therefore I have any choice, I should like to stay on here until Federation ultimately comes....' By this time, B. N. Rau was named Advisor to the Constituent Assembly in 1947.

Imprint on constitutional history

In the last six decades, many important assessments have been made of the working of the Constituent Assembly and of the making of the Indian Constitution. And, in none of the significant works, Rau's contribution has gone unacknowledged.

Granville Austin in his book 'The Indian Constitution: Cornerstone of A Nation' writes, "BN. Rau must be placed among those important in the framing of the Constitution.  As Constitutional Adviser 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 devices to be used in India's Constitution."

Due process dilemma 

During the framing of the Indian Constitution, there was vigorous debate about whether India should adopt the "Due Process" right or make "Procedure Established By Law" as the basis for guaranteeing individual rights. Initially, when Jawaharlal Nehru introduced the objective resolution in the Constituent Assembly in December 1946 "Due Process" clause could not be included in the objective resolution. However, it did find a place in the basic draft that Rau had prepared for its members. Clause 16 of Rau’s basic draft stated, "No person shall be deprived of his life or personal liberty without due process of law’. However, due process was omitted and replaced by the procedure established by law in the final draft by an interesting turn of events."

After submitting the final draft, Rau left on his foreign tour. During his sojourn, he met Justice Felix Frankfurter of the US Supreme Court, with whom he shared the basic draft and who, in turn, advised him to refrain from using the phrase "by due process of law" as it would "embolden Indian judges to indiscriminately invalidate economic and welfare laws, duly enacted by the people’s representatives, for violating an individual’s liberty", writes Vikram Raghavan in his article titled The Curious Case of ‘Due Process’ in the Indian Constitution published in The India Forum.

Raghavan adds, "Rau returned to New Delhi in early December 1947. In a report to the assembly’s president, Rau highlighted Frankfurter’s belief that a due-process guarantee was undemocratic.”

The draft constitution, which the committee finalised in February 1948, omitted any reference to due process. Draft Article 15 was the functional equivalent of Clause 16 in Rau’s draft. It declared, "No person shall be deprived of his life or personal liberty except according to procedure established by law."

Rau's contribution to making the Indian Constitution in particular and legal jurisprudence in general was distinguished. This was acknowledged during his lifetime by honouring him with a host of important legal positions in India and at international forums.