Musings On The Constitution-VI Narasimhan Vijayaraghavan A simple letter and an episode would suffice. Rau’s career began in a most unusual way, and his constitutional

Musings On The Constitution-VI
Narasimhan Vijayaraghavan
A simple letter and an episode would suffice. 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.
As a fair and fearless bureaucrat, he took on the colonial masters and convinced them to yield to the dictates of the Government of India Act, 1935, when the Britishers were compelled to transfer some ‘sovereign rights’ to the ruled. It was this 1935 Act that formed the core of our Constitution to be. And when Mohammed Ali Jinnah was prevaricating on participation in the Constituent Assembly, it was Rau who wrote to him, “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.” Alas, Jinnah remained unconvinced.

While gathering information on B N Rau, for an Obituary, a correspondent happened to meet Gulwady Dattatreya Bhat, a 99-year-old man and a resident of Car Street. Though he could not recall many things about Rau, he said, “his brother used to sign on notes.” However, his son Mangaldas Gulwady explained that he was referring to B N Rau’s brother Benegal Rama Rau, who was the former Governor of Reserve Bank of India!

Some interesting figures. I have worked out some interesting figures- 12.8%, 14.7%, 1.5% only, 22.3%! Incorporate these in my speech.

While the Drafting Committee was sitting, B.N. Rau travelled to USA, Canada, Ireland, and England, to consult with constitutional experts, and returned on December 2nd, 1947. Rau was categorical on the placement of rights of an individual on a pedestal. “The reason for putting the dignity of the individual first was that unless the dignity of the individual is assured, the nation cannot be united.”
It was B N Rau’s meeting with Justice Felix Frankfurter in the US (who was mortified by his judicial experience with the said clause and inability to wade through it with confidence and clarity) that meant that 14th amendment to the US Constitution- the Due Process clause- was not appropriated in ours, though the initial draft contained it. It may be apt to advert to Ambedkar’s famous speech in the Assembly on this contentious phrase. “The question now raised by the introduction of the phrase ‘due process’ is whether the judiciary should be given the additional power to question the laws made by the State on the ground that they violate certain fundamental principles…There are dangers on both sides. For myself I cannot altogether omit the possibility of a Legislature packed by party men making laws which may abrogate or violate what we regard as certain fundamental principles affecting the life and liberty of an individual. At the same time, I do not see how five or six gentlemen sitting in the Federal or Supreme Court examining laws made by the Legislature and by dint of their own individual conscience or their bias or their prejudices be trusted to determine which law is good and which law is bad…I would leave it to the House to decide in any way it likes.”
It was a fascinating duel between members who echoed Ambedkar and Alladi Krishnaswami Aiyar who opposed the ‘due process’ clause- which justice Felix Frankfurter advised B N Rau to avoid. Shri Alladi Krishnaswami Ayyar put forward arguments to counter the points submitted by all the above members. Shri Ayyar first explained that the ‘due process’ clause as interpreted by the English judges connoted merely the due course of legal proceedings according to the rules and forms established for the protection of rights, and a fair trial in a court of justice according to the modes of proceeding applicable to the case. Shri Ayyar went on to critique American judicial decisions for an inconsistent interpretation of the ‘due process’ clause on a case by case basis. Shri Ayyar explicitly expressed his skepticism towards the idea that three to four judges will enjoy the freedom to determine what constitutes ‘due process.’ He was extremely critical of the conflicting decisions rendered by the United States Supreme Court while interpreting the ‘due process’ clause. Alladi Krishnasamy Aiyar’s powerful exposition prevailed with the House. The house decided in favour of the clause ‘except in according to procedure established by law’ in Art.21. Thus, in spite of passionate efforts by several members of the house the ‘due process’ clause did not become a part of the Indian constitution. Thereby hangs a brilliant judicial history beginning with A K Gopalan. Warch this space.

   Felix Frankfurter

B N Rau 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.”
The UNO termed his death as “a loss to the world community” and Russian delegates called him “a saint among the delegates,” according to a book on Eminent Chitrapur Saraswats of the 20th century, published by Young Chitrapur Saraswats Association. About his performance at the UNO, the New York daily Mirror said: “For sheer brilliance in the United Nations, India’s Rau is far ahead of Britain’s whimsical Sir Gladwyn Jebb or America’s excitable Warren Austin.” Perhaps, this sums up Rau’s personality which is a combination of great talent, extraordinary capacity for sustained hard work, and rare humility which often forced him to stay anonymous. The then Indian Ambassador to Switzerland, Y D Gundevia, condoling the death of Rau said, “the death of Benegal Narsing Rau is a very great loss. Every Indian has the benefit of the Constitution which Rau laboured hard to formulate for us. It is perhaps less known that he also had a substantial hand in the drafting of the Constitution of our neighbouring country, Burma. We have lost in one of our wisest counsellors.”
Do they make the likes of him anymore?

(Author is practising advocate in the Madras High Court)