BN Rau: The Unsung Architect of the Constitution
If the constitution was to have one name associated with its framing, it would certainly be B.R. Ambedkar or Jawaharlal Nehru at most. However, there was another unsung architect within the constituent assembly, the advisor himself, Benegal Narsing Rau. Some might remember him as a successful civil servant, as evidenced by the fact that he was the only Indian to be selected in his year. His contributions to the present form of the Indian constitution can be understood in light of his sharpness and farsightedness through his early years. At Trinity College, Rau happened to be a student at the same time as Jawaharlal Nehru. In a letter to his father written on 28 May 1908, Nehru writes of Rau as being ‘frightfully clever’ and one who ‘certainly works hard enough.’ All that Nehru seemed to have seen of Rau was him attending his lectures and spending his time studying.
B.N. Rau’s contribution to the constituent assembly was preceded by his crucial role in the modification of Indian law during the watershed period when British rule was on the verge of ending and Indian law was to become more ‘Indian.’ In 1935, Rau served as judge of the Calcutta High Court, but only for a short while as his services were called for in the Reforms Office. The Government of India Act had come into force that year, which necessitated the overhaul of all the laws, both at the federal and provincial level, to align them with the new scheme of the 1935 Act. Rau oversaw this exercise and was able to complete it in less than two years, receiving a knighthood for his service.
Not only was Rau an able interpreter of the law, but he was also responsible for creating several landmark judicial precedents. During his time as a High Court judge, Rau authored several landmark judgments including in GP Stewart v. BK Roy Chaudhury, which defined the doctrine of repugnancy when applied to legislative relations. Moreover, in 1956, this decision was treated as having high precedential value by a Constitution Bench of the Supreme Court in Tika Ramji’s case.
The time spent by Rau as the high court judge allowed him to analyse and modify Indian law to such an extent that he was appointed as the chairman of various committees. Most notably, he was appointed as the chairman of the committee looking into the reform of Hindu law. Everyone recognizes the massive reformation that took place in the purview of Hindu laws in 1955 which strengthened the inclusion of gender equality and fairness as robust concepts within them. Although Rau was to retire from the civil service in 1944, his services were still called for.
Under the motion which the Constituent Assembly had adopted on 29 August 1947, the first step towards drafting a constitution was to be taken by BN Rau who would compile a constitution reflective of the Assembly’s prior decisions and deliberations. By October 1947, Rau’s Draft Constitution was ready - a voluminous document which had 240 clauses in addition to also consisting of thirteen schedules. It must be noted that this task was one that required extreme precision and knowledge, as the very fact of having a constituent assembly and being able to conduct rigorous debates on matters of national importance was achieved with difficulties. A single mistake here and there would have created constant confusion and chaos. Yet, it was managed single-handedly by Rau. B.N. Rau was perhaps the most important player when it came to creating a robust environment for rights and citizens’ liberties to be at the forefront. To ensure that rights were enforceable as well as justiciable, the Draft Constitution contained two layers of protection. The first layer of protection was provided in Chapter I of Part III of the Draft Constitution. In it, Clause 9 provided that laws which violated fundamental rights would be invalid. The last part of Clause 9 presented an expansive definition of what would constitute law; it ranged from legislation to ordinary rules. This was important because with this broader meaning of ‘law’, even ordinary regulations made by government departments would be treated as law and could be scrutinized for their compliance with fundamental rights. Rau was careful to ensure that all the rights enumerated in Chapter II were enforceable in courts of law. For that reason, Rau’s Draft Constitution contained a separate section on ‘Right to Constitutional Remedies.’ This was the second layer of protection. Clause 28(1) provided that the right to move the Supreme Court for the enforcement of fundamental rights would itself be a fundamental right. Under Clause 28(2), this right to move the Supreme Court could only be suspended when an emergency was declared. What this essentially meant was that the Supreme Court could not be moved for enforcement of fundamental rights only in times of disruption or an emergency. In Part III of the Draft Constitution, Chapter III contained the Directive Principles Of State Policy, which were also much encouraged and emphasized by Rau. His ideas always had an underlying emphasis rooting from a probable fear of power abuse by the state.
In respect of the due process guarantee which was a controversial question in the constituent assembly, it is immediately noticeable that BN Rau in drafting Clause 16 and retaining the phrase ‘due process’ carried forward the Constituent Assembly’s decision of 30 April 1947, when it voted to accept the due process guarantee as a fundamental right. However, Rau made certain modifications. He prefixed the word ‘personal’ before the word ‘liberty’ and he replaced the word ‘Union’ with the word ‘Federation’.
Focusing first on the issue of defining the contours of rights, Rau took the example of Germany to demonstrate how not to structure rights. He used Article 153 of the 1919 Constitution of Germany, which related to property rights, to show that if the limits of a fundamental right were contingent entirely on how the Legislature chose to define them, then fundamental rights were essentially meaningless. According to Rau, ‘rights of private property are said to be inviolable except where the law otherwise provides, which means that the rights are not inviolable’.
The other crucial issue which Rau focused on was devising effective methods for protecting the enforcement of rights. As he saw it, the ability to protect rights had a direct correlation with how the rights were defined. Ideally, in Rau’s conception, “rights should not be defined at broad levels of generality and vagueness since it could lead to uncertainty of how courts understood such rights, rendering them susceptible to endless forms of interpretations.”
To prevent this, three probable solutions were presented: first, to allow courts to enforce fundamental rights regardless of the structure of the rights; second, to make rights non-justiciable and unenforceable, akin to directive principles, thus completely ousting the court’s jurisdiction; or, third, to allow only a category of rights which are well defined to be justiciable.
In order to further emphasize on the issues created by vagueness and generality of language while framing the law, Rau turned his attention to the jurisprudence of the US Supreme Court on the due process clause contained in the 5th and 14th Amendments, as well as the jurisprudence on the equality clause contained in the 14th Amendment. Rau began by noting that the due process guarantee had attracted an outpouring of judgments and had become the ‘most important single basis of judicial review today’.While Rau was constantly cognizant of the possible dangers of placing too much power with the executive, he was not oblivious of possible misuse of power by the judiciary as well. As said by him, to invest in an ‘irremovable judiciary’ the power to strike down laws made by a Legislature, which is sensitive to public needs and public welfare, would be too high a price to pay. For Rau, rights must not be structured in a manner that results in courts trying to constantly divine the meaning of such generally defined rights.
“Rau’s role within Indian constitution making was constantly sharpened by his corroboration with foreign constitutions of not only popular nations such as Germany and USA, but also ones like Ireland. He examined the personal liberty right contained in Article 40(4)1 of the Irish Constitution and was convinced that such a formulation was not a fundamental right at all. Article 40(4)1 read: ‘No citizen shall be deprived of his personal liberty save in accordance with law.’ According to Rau, such language in a right would proliferate confusion and injustice.”
The central message projected by Rau in his Notes was that “the Constituent Assembly must neither enumerate fundamental rights which are amorphous in their meaning nor structure them as mere incantations.” Rau proposed a systematized process by which courts would have the jurisdiction to question legislation and enforce fundamental rights. But the powers of the court ought not to extend to questioning laws meant to promote social welfare and the public good. In Rau’s conception, “the structure of rights would have an inextricable link with the scope of judicial review as well as the attainment of the common good. With his Draft Constitution, BN Rau travelled to America, Canada, Ireland and the UK meeting leaders from these nations to seek their advice on constitution making. After completing his visits, Rau submitted a Report to Dr Rajendra Prasad which chronicled his discussions with these world leaders.
Hence, it was after immense analysis, debates, discussions and corroborations that Rau worked on the Indian constitution to make it worthy of governing the vast expanse of a heavily populated nation, embodying its internal socio-economic complexities and contradictions. It was perhaps a result of such precision and practicality that a nascent democracy despite being a newly decolonized country managed to stand firm for more than seventy years.
*Kovida Bhardwaj 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.
 Rohan J Alva, Liberty After Freedom