We celebrated Constitution Day on November 26. The role and contribution of B.N.Rau in the making of our Constitution is marvellous. The 70th anniversary of his passing is on November 30. It is only appropriate that we remember his life and work and salute his sacred memory.
To pay tribute to B.N. Rau, “is to paint the lily, to gild refined gold and throw a perfume on the jasmine,” for so exemplary was the man in his personal and functional qualities and accomplishments.
Sir Benegal Narsing Rau was born in Mangalore on February 26, 1887. He hailed from a distinguished family rich in the gifts of intellect and attainments. Narsing Rau had a brilliant academic career. He was educated at Canara High School, Mangalore from where he matriculated topping the list of students in the entire Madras Presidency. He joined the Presidency College, Madras and obtained from the Madras University a triple first class in English, Physics and Sanskrit in 1905 and a first class in Mathematics the following year and won all the prizes and medals. Thereafter he studied at Trinity College, Cambridge where Jawaharlal Nehru was a contemporary. He took his Mathematics Tripos in 1909. He qualified for the Indian Civil Service and joined service in 1910 and was allotted to the Bengal cadre.
After some time he preferred to serve as a judicial officer and soon began what was to be a very distinguished career in legal work. He was a District and Sessions Judge from 1919 to 1923. Then he did legal work for the Government of India on various Committees and Commissions and acted as Reforms Commissioner in 1928. He served as Secretary to the Legislative Council and as Legal Remembrancer in Assam. He presented Assam’s case to the Joint Select Committee of the British Parliament in London in 1933. The Governor of Assam requested him to prepare a note on the principle of election to the Council of States by the single transferable vote. Having regard to his deep knowledge and great familiarity with constitutional law and affairs, his assistance was sought in connection with the working of the Government of India Act, 1935. He had by then established himself as an expert in constitutional law.
The 1935 Act repealed the Government of India Act, 1919, but it provided for continuance of the laws in force in British India immediately prior thereto and adaptation and modification thereof as was necessary and expedient. It provided B.N.Rau the major opportunity for creative legal work. He was entrusted with the work of reviewing all existing laws and suggesting the necessary adaptations and modifications. He was the principal draftsman of the Government of India (Adaptation of Indian Laws) Order, 1937. It covered 469 printed pages and thousands of provisions of laws which were adapted or modified. It has been the model for all subsequent adaptations. It demonstrated the ‘enormous industry, the meticulous knowledge of the law of the land and the high standards of draftsmanship with which the work was accomplished.’
His legal career culminated in his appointment as a judge of the Calcutta High Court, first as a temporary judge on 2nd April, 1935 and then as a permanent judge on 16th January, 1939 and he demitted office on 1st February, 1944. He rendered many important judgments while in the Calcutta High Court. Reference may be made to G.P. Stewart v. Brojendra Kishore Roy Choudhary, AIR 1939 Cal 628, in which he elucidated the test of repugnancy with great lucidity of thought and felicity of language. This has been referred to with approval by the Supreme Court in Tika Ramji v. State of Uttar Pradesh, AIR 1956 SC 676. This one instance by itself shows what contribution he would have made to the development of our constitutional law if he had been elevated to the Federal Court as originally planned by Chief Justice Maurice Gwyer. That was not to be. And instead of being an interpreter, he became the creator of constitutional law.
During this period B.N. Rau undertook the work of wage adjudication under the Trade Disputes Act, 1929. This was in connection with a dispute raised by the employees of the Great Indian Peninsular Railway regarding payment of dearness allowance and other conditions of their service. The Rau Court of Enquiry submitted its report in 1940 justifying the claim for payment of dearness allowance. Pursuant to the Report, Government started supplying essential articles to its employees at concessional rates and this had the effect of neutralising greatly the rise in prices. Sir Benegal was a pathfinder in the ever growing and complex area of labour relations. While he was a judge of the Calcutta High Court B.N. Rau was appointed Chairman of the Indus Commission with two Chief Engineers as its members to look into the rights of the various provinces to an equitable distribution of the waters. This was under section 131 of the Government of India Act, 1935 on a representation by Sind. The Commission formulated the principles relating to distribution of river water amongst riparian states or regions. These principles have become a model for several subsequent Commissions appointed to decide similar disputes. It has been said that the work of Justice B.N. Rau heading that Commission provided ‘an illustration of the untiring industry, thoroughness and impartiality with which he tackled every problem …. The report … has been regarded, not only in India, but outside, as a classic on riparian rights, covering the subject with great legal knowledge and technical accuracy.’
B.N. Rau was the Prime Minister of Kashmir in 1944-45. He was also the sole arbitrator in a dispute between the Reserve Bank of India and the Central Provinces relating to some rioting and carrying away of currency chests in 1942 and as to who should bear the loss thus incurred. During that period he also headed the Committee for reform of the Hindu personal law- The Hindu Law Reform Committee. The Committee submitted its report and drew up a draft code which eventually resulted in various enactments by Parliament in 1955-1956. He also dealt with the boundary dispute between Madras and Orissa and his report formed the basis of the Madras-Orissa Agreement, 1946 on the Machkund Hydel Project.
It is of interest to note that B.N. Rau was also one of the important persons who chalked out the line of defence in the famous Indian National Army (INA) trial. His deep knowledge of International Law was of great help in evolving an interesting theory for the defence which was put forth with commendable clarity and force by Bhulabhai Desai as lead counsel for the defence. That theory was that according to the established principles of International Law the accused were entitled to take up arms under the aegis of a provisional Government headed by Subhash Chandra Bose in order to gain the freedom of the country and the acts done by them in their capacity as members of such an organised force could not be offences under the municipal law of India.
Rau returned to the Reforms Office of the Government of India as an Officer on Special Duty where he served until his appointment as the Constitutional Adviser to the Constituent Assembly in July, 1946. This was his crowning glory! It may be mentioned that when he was again offered judgeship of the Calcutta High Court in 1945, B.N. Rau declined the offer and opted to stay on and work until the Constitution and the Federation were accomplished. His response to the Viceroy’s Private Secretary is typical of the man:
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, and I have therefore to look at the matter from another point of view. The big thing before India is now Federation. I have spent, off and on, over a dozen years in the study of constitutional law in general and the Indian Constitution in particular; and within the limits permitted to me, 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, in whatever form it ultimately comes, is an accomplished fact. This will mean the abandonment of any prospects in the High Court, or anywhere else via the High Court, but such things are inevitable.
His role in the making of India’s Constitution was seminal. He brought to his work his brilliance and rich experience. He prepared the first draft which was the basis for discussion. That draft had marginal notes of reference to the different constitutions. He worked honorarily all the time he was with the Constituent Assembly. As Setalvad said the Constituent Assembly could enter upon its arduous task only on the basis of a draft prepared by B.N. Rau after deep study and laborious research. He drew the plan and outlined the foundation of the noble structure. While his work and contribution in all fields of his endeavour have been great, it is Sir Benegal’s work in the making of our Constitution that is truly splendid. He was an eminent lawyer and judge well versed in law and constitutional history. His knowledge was wide and deep. Dr. Rajendra Prasad said that ‘by knowledge, experience and natural gifts he was the inevitable choice for the post of Constitutional Adviser and that he was ‘guide, philosopher and friend’ in a task of such supreme national importance as the framing of the Constitution. ….He assisted the Assembly not only with his knowledge and erudition but also enabled the other members to perform their duties with thoroughness and intelligence by supplying them with the material on which they could work.’ If Dr. Ambedkar was the skilful pilot of the Constitution through all its different stages, Sir B.N. Rau was the person who visualised the plan and laid its foundation. He was superb in draftsmanship, endowed with a style which was at once clear, illuminating and precise- qualities which are indispensable in any document of legal or constitutional importance.
While functioning as Constitutional Adviser, B.N. Rau was also Adviser to the Government of Burma in connection with the drafting of their Constitution in 1947.
In October 1947 Rau went to U.S.A, Canada, Ireland and U.K. for personal discussions with leading constitutional authorities there. The tour led to fruitful contacts and deliberations. Amongst others, he met and discussed with Justice Hughes, former Chief Justice of the U.S. Supreme Court and Justices Frankfurter, Burton and Murphy; Judge Learned Hand, Justice Thorsen of Canada and the Irish Foreign Minister – Boland. The Directive Principles of State Policy were borrowed from the Irish Constitution. Sir Benegal noted that modern constitutions contained such moral precepts which have educative value but he wanted the directive principles to go beyond the level of precepts. The “Due Process” clause was not included in the Constitution as a result of his discussions with Justice Frankfurter. However, by accepting the amendment proposed by Thakurdas Bhargava incorporating ‘reasonable’ and ensuring that the restrictions imposed on various guaranteed freedoms are reasonable in the view of the courts, almost the same result has been achieved.
It is a different matter that Sir Benegal’s views and his proposals regarding Governors and the appointment of judges of the Supreme Court and the High Courts were different and the Constituent Assembly did not adopt them.
Justice Frankfurter wrote to Sir Benegal: “My talks with you were among the pleasantest and most satisfying experiences in Washington.’’ And even more, Frankfurter was so impressed that he remarked, “If the President of the USA were to ask me to recommend a judge for our Supreme Court on the strength of his knowledge of the history and working of the American Constitution, B.N. Rau would be the first on my list.” Great praise from high authority and very well deserved! No compliment could have been higher.
He was one of the members of the Adhoc Committee of the Constituent Assembly headed by Sir Varadachariar, set up to decide the constitution and powers of the Supreme Court. The other members were K.M. Munshi, N.G. Ayyangar and B.L. Mitter. His advice in the matter of introduction in the Constitution of the power of judicial review is interesting and noteworthy. ‘The courts manned by an irremovable judiciary not so sensitive to public needs in the social or economic sphere as the representatives of the periodically elected legislative body, will, in effect, have a veto on legislation exercisable at any time and at the instance of any litigant. The compensating advantages, particularly the security which would be felt by the citizens generally and the religious minorities, are also pointed out. He quotes from Lauterpacht how, in the United States, the doctrine of judicial review after one hundred and forty years of operation had the unqualified support of a large-perhaps, predominant-section of American legal opinion as a bulwark of the liberty of the people against the rashness and the tyranny of the short-lived legislative majorities.’
His views as regards the powers of the President under the Constitution are of equal interest and significance. “One can conceive of no better future for the President of India than that he should be more and more like the monarch in England, eschewing legal power, standing outside the clash of parties and gaining in moral authority.” The same view was also echoed by the Supreme Court in Samsher Singh v. State of Punjab, AIR 1974 SC 2192.
B.N. Rau was in the Indian delegation to the United Nations in 1948. Later in 1949-1951 he was India’s Permanent Representative to the UNO and handled many delicate matters such as the Kashmir dispute and the Hyderabad issue. When India was elected as a member of the Security Council, Rau represented India on it and participated in discussions on a variety of issues. Again his familiarity with and expertise in International Law were of great help to the delegation. Setalvad who also was in the delegation speaks of this. Sir Benegal did remarkable work at the U.N. also. It was again B.N. Rau who was mainly responsible for evolving a formula by which India could remain in the Commonwealth while becoming a republic. While being part of the Indian delegation to the UN, Rau had to return to India to prepare important papers for the Constituent Assembly. His name had also been put forward for election to the World Court and the International Law Commission to both of which bodies he eventually went and played his part with great distinction and won the appreciation and esteem of all.
He also functioned then as Chairman of the Atomic Commission into whose functioning he brought order and set it on correct lines.
B.N. Rau, while he was representing India at the United Nations, was elected as a member of the International Law Commission and was Vice President of the Commission for sometime. He was there between 1948 and 1951. The Commission was composed of persons of acknowledged international legal competency and who jointly represented the first forms of civilization and the principal systems of law. The tribute paid to him by a Brazilian colleague on the International Law Commission is worth recalling :
“…… Sir Benegal Rau started to speak; and with a clear voice and melodious accent he read what he had written from the notes he had taken. His language was almost precious due to its perfection. The way of talking was elegant and somewhat remote- as if the speaker were not there…. But he was there…. And the solution he proposed was practical and under the circumstances the only one capable of satisfying everybody. Agreement was immediately reached. The Commission was able to start in the following session on its work, knowing what it was doing.
“A man of angelic appearance, extremely sweet in manners, a full idealist, but capable of dealing with reality and coldness from the right angle and not in a dreamy way, Sir Benegal is a man possessing the gift to surprise us when we least expect it. ….it is, indeed, a privilege to be able to put before the eyes of my countrymen such a beautiful expression of humanity, representing the highest and noblest human expression, indeed extremely human, the mirror of a culture many thousands of years old which employs the language of the West, in a better way than Occidentals do, because they do not possess the strength of the eternal, of the everlasting. And it pleases me, in addition, to acquaint the Brazilian people with the fact that I work abroad in their name alongside Sir Benegal.”
Appropriately, Sir B.N. Rau crowned his career with a term as a judge of the International Court of Justice at Hague. He was elected to the World Court in 1951-52 by the United Nations General Assembly. On that occasion Justice Frankfurter wrote to him: “You are one of the people I have ever encountered who had a deep instinctive sense of justice. I begrudged the years you gave, I am sure conscientiously, to diplomacy and rejoiced when you took your rightful place on the Court.”
As a man Sir Bengal was simple, humble and somewhat aloof. He was versatile as a lawyer, judge, law reformer, diplomat and constitutional architect. His career and contribution resonate the virtues of learning. He reminds us of not just the grace which learning brings to power but also the ways in which it enhances the benign face of power. ‘The idea of a jurist as a social architect, speaking to the future, comes alive in Rau’s luminous career’.
This was the man who played a substantial and significant part in the making of our Constitution and who represented India for a time in the United Nations and the International Court of Justice. He took ill in the summer of 1953 and went somewhat before his time on 30th November, 1953 at the relatively young age of 66. There was an obituary reference to his passing away in Parliament, the Lok Sabha stood in silence for a minute as a mark of respect and paid him a standing tribute on 30-11-1953.
Prime Minister Jawaharlal Nehru making the reference spoke of Sir Benegal bearing the great weight of his scholarship always in an unassuming, unobtrusive way, “I doubt if anyone saw him ruffled at all. Always he had the gentle way of approaching questions which surprised very greatly many people during the discussions in the United Nations because very hard words are used in the discussions there. But whatever was said B.N.Rau remained his quiet, gentle self without being ruffled or moved in the slightest. He had a distinguished career....he might well be called one of the principal architects of our Constitution.”
Speaker Mavlankar said: “Although, as stated by the Hon. the Leader of the House, it is not the practice in this House to make reference to the passing away of non-Members, either of this Parliament or its predecessors, when the Hon. the Leader of the House asked me as to whether I could permit him to make a reference, I instinctively felt that I must, because the case here is quite exceptional. Apart from the unique personality of Mr. B.N. Rau and his eminent services to the country, what weighed most with me was that he was, as it were, interwoven in our present parliamentary life......... Apart from that, of course, he was an eminent Indian and it is but proper that we all should gratefully remember him and express our sorrow at his sad demise at a comparatively (as the Leader of the House said), young age.”
Rich tributes were paid to him across the spectrum.
President Rajendra Prasad wrote: When the history of the Indian Constitution comes to be written Sri B.N. Rau will occupy in it a significant place. Among the many stalwarts who played their part in the Constituent Assembly in the fulfilment of an extremely difficult undertaking, he distinguished himself by his erudition and detachment and his quietly persistent efforts.
Writing in a review of the posthumous publication of Sir Benegal’s papers India’s Constitution in the Making by his brother Shri B. Shiva Rau, Shri M.C. Setalvad said: Those who came in contact with B.N. Rau learnt not only to admire his vast knowledge and deep study, but also to respect his relentless devotion to duty and his great humility of mind. A perusal of the papers now published has induced in the writer who had the privilege of having come in contact with him a greater esteem for his vast learning and simple personality reminiscent of the rishis of the old.
B.N. Rau was not only very great, but very amiable and pure; his life and character not distinguished by a few admirable prominences, but uniformly elevated. His virtues were equal to his genius. All his achievements were solid, in whatever capacity he worked he left an indelible mark.
George S. Hellman in his biography of Benjamin Cardozo recalled a passage from T.E. Shah’s translation of Homer’s Odyssey to describe Cardozo: “God will so crown what he says with a bloom of beauty that all who look on him are moved. When he holds forth in public it is with assurance, yet with so honey-sweet a modesty that makes him shine out above the ruck of men who gaze at him whenever he walks their city as if he were a god.” This more than aptly applies to Sir Benegal!
It may be said of him as was said of Socrates, ‘A strange figure he was who stood out like a mountain peak dazzling in the last rays of the setting sun’. We will not see the likes of him again. When they make great men, they break the mould.
Author is Senior Advocate at the Supreme Court of India.