The cloud hanging over Sir B. N. Rau

Dr. B. R. Ambedkar is often described as the father of the Indian constitution. While the paternal honorific is typical 1, it does ignore the complexity behind authoring such a vital document. To start with, the Constituent Assembly had 299 members which probably meant more than 500 opinions. But I'd like to focus on a blurry figure that appears just above Ambedkar's shoulder every time you discuss the constitution. You have to squint to see him nowadays; he's Sir Benegal Narsing Rau, former President of the UN Security Council, former judge at the International Court of Justice at The Hague, former Prime Minister of the princely state of Jammu and Kashmir, jurist, diplomat, civil servant par excellence and author of the first draft of the Indian constitution. And one good-looker.

Rau was the Constitutional Advisor to the Constituent Assembly. His draft constitution, submitted to Ambedkar's committee in 1947, contained 243 Articles and 13 Schedules. After passing through the drafting committee and then the constituent assembly, it had grown to 395 Articles and 8 Schedules 2. Rau was a Trinity-educated legal scholar who had studied the constitutions from various developing and developed countries. Justice Felix Frankfurter of the US Supreme Court supposedly said, "If the President of U.S.A. 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". Though the source for that quote seems to be Rau's own book, India’s Constitution in Making.

But sadly, most of the time Rau is mentioned outside legal scholarship it's by anti-Ambedkar polemicists. The best example might be Arun Shourie in his essay titled The Manu of Our Times. But there was some key differences between Rau and Ambedkar's constitution. Rau saw a much greater role for the Directive Principles and was against the enshrining of Fundamental Rights in the constitution. This is a well-argued judicial position and not to be interpreted simplistically. As Aravind Elangovan of Wright's University argues "Taken separately, the argument against enshrining justifiable fundamental rights indeed appears jarring to both the moment of constitution-making as well as in postcolonial India. However, considered along with other aspects of Rau’s ideal constitution such as the enshrinement of directive principles that would be independent of judicial interference, the separation of politics from the institutions of governance, a legislature that was political and empowered, and yet restrained, and finally, capped by the powers of the office of the President to act independently of political imperative in cases of internal emergencies conveys a far more balanced picture of the constitution."

But this last piece of information takes on a nefarious edge in the light of a recent document unearthed by Vineet Thakur at the University of Johannesburg. Writing for The Wire, Thakur describes an informal meeting between Rau and South African diplomat, Jooste on the sidelines of a UN session where the racist treatment of Indians in South Africa was being discussed:

In the meeting, Jooste, accompanied by his deputy J. Jordaan, kept to his brief, detailing South Africa’s position on the issue. Rau, however, let his tongue fly. Showing a rather “unexpected measure of frankness,” Rau began with confessing, Jooste noted, that ‘the feverish attempts in his country to destroy all caste inequalities were resulting in what in actual practice amounted to discrimination against the erstwhile ruling castes such as the Brahmins, to which he belongs’. Interestingly, this confession came just over a month before the pro-caste equality draft of the Indian constitution was introduced in the constituent assembly. In introducing the draft constitution, ironically, Ambedkar went on to specially credit Rau for his sterling work in preparing the draft.
Going further, Rau stated that “Indians who went to South Africa did not belong to the best type and that, as in Burma, they may have exploited the local population and given India a bad name”. He added that the way the South African government treated them “might be fully justified and that in fact India would not mind discrimination against our local Indian community if only it was not based on racial lines”.

As Thakur put it, Rau went on to propose a casteist solution to a racism problem.

Thakur is quick to point out that this is just one man's report on the meeting and it isn't clear what amount of trust to place in its authenticity. He also states that Rau might've been bluffing or just using some kind of diplomatic strategy.

But the uncomfortable questions don't quite go away.

  1. Midwife is clearly a more accurate title. Father is practically an insult when discussing the birthing process.

  2. For more information on Rau: Narayan, Uma (2016). The Constituent Assembly of India: Recollecting Contributions of Sir Benegal Narsing Rau, the Constitutional Adviser. International Journal of Legal Information 44.3, 2016, pp. 225–234.