Hindustan Times ST (Mumbai)

BN Rau: An idealist and a staunch constituti­onalist

Rau not only played a vital role in the Constituen­t Assembly but also embodied a constituti­onal temperamen­t to address pressing political problems of the day

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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)

 ?? HT ARCHIVE ?? An image from March 1951 showing BN Rau at work at the United Nations.
HT ARCHIVE An image from March 1951 showing BN Rau at work at the United Nations.

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