[Tryst with the Constitution] Sir Benegal Narsing Rau: Beyond the Constitution

February 26 marks the birth anniversary of Sir Benegal Narsing Rau, one of the most consequential yet insufficiently remembered figures in India’s constitutional and diplomatic history. He is largely remembered for his role as Constitutional Adviser to the Constituent Assembly, a contribution that deserves more attention than it gets, for Rau was one of the key architects of the Indian Constitution.

Yet, his public life extended far beyond that office. He also played a significant role in shaping both India’s domestic legal policy and international diplomacy. He shaped institutions at home and represented India’s voice abroad at a formative moment in world history.

After completing his studies at the University of Cambridge, Rau was offered the position of an academic fellow. However, he chose to appear for the Indian Civil Service in 1909, becoming the only Indian to clear the examination that year. At the beginning of his administrative career, his integrity was at display, as he refused a posting in his home province of Madras, writing to the Civil Services Commissioner that the presence of friends, relatives and family landholdings might compromise the perception of impartiality in public eye. Instead, he requested reassignment to Burma. The episode, though minor in appearance, is revealing of the ethical temperament that would define his public career.

Rau held numerous significant positions in his administrative careers, one of which was of the key draftsmen of the Government of India Act, 1935 - a statute that, despite its colonial origins, introduced provincial autonomy, expanded legislatures and laid structural foundations later inherited and modified by the Constitution of India. Rau’s contribution to the document earned him a knighthood.

In 1941, he chaired a committee tasked with reforming Hindu law. The committee’s proposals were strikingly progressive for their time: outlawing polygamy, enabling divorce on specified grounds, increasing women’s inheritance rights and weakening caste barriers in marriage and adoption. These proposals later informed the debates surrounding the Hindu Code Bill.

In addition to legal reform for the government, Rau also extended support to the freedom fighters who were at loggerheads with the same government. He prepared the defence strategy for the officers of Subhash Chandra Bose’s Azad Hind Fauj who were tried at the Red Fort in the famous INA Trials. His strategy was relied upon by Bhulabhai Desai, who represented the officers.

After Independence, Rau entered what may be described as his second public career - as a diplomat and international jurist. He was appointed as India’s representative to the United Nations in 1949, where he confronted questions that tested the young republic’s diplomatic maturity: Kashmir, Hyderabad, Korea, the future of former Italian colonies and atomic energy governance.

The post-war United Nations was a site of intense geopolitical rivalry. As Sardar Patel wrote in a correspondence with Prime Minister Nehru, the forum had become “a platform for the exchange of abuses” between the Cold War blocs. Yet, India sought to occupy a mediating position and Rau was central to that effort.

As Chairman of the United Nations Atomic Commission’s Sub-Committee of Eleven, he attempted to bridge the divide between Anglo-American proposals and Soviet objections regarding international control of atomic energy. Patel noted that India had succeeded in breaking the deadlock over the Commission’s revival, crediting Rau for his efforts to reconcile contending viewpoints.

In June 1950, when Democratic People’s Republic of Korea invaded the Republic of Korea (South Korea), Rau was serving as President of the UN Security Council. Acting with a degree of urgency and, by some accounts, without complete instructions from New Delhi, he convened the Council in an emergency session and supported the resolution calling for withdrawal. His diplomacy was equally visible in efforts to resolve disputes over the former Italian colonies in Africa, whose future status became a matter of international deliberation after Italy’s defeat in the Second World War. Eritrea, in particular, presented a complex question of self-determination and regional stability. Rau helped craft a compromise plan proposing a federation with Ethiopia under Emperor Haile Selassie, with a future option for reconsideration.

On Kashmir, Rau articulated India’s position before the Security Council at a time when the dispute, following the accession of the princely state to India and the ensuing conflict with Pakistan, had been referred to the United Nations. The Council had earlier contemplated a ceasefire followed by a plebiscite, subject to demilitarisation. In response to proposals by General McNaughton regarding a pre-plebiscite arrangement, Rau argued that they disregarded what he described as the “legal and moral aspect of the question.”

In a detailed address, he particularly highlighted the proposals’ ignorance of Pakistan’s unilateral invasion of Kashmir. He observed,

“Today the position is that Pakistan, which throughout 1948 denied having given any aid either to the invaders or to the Azad Kashmir Forces, is now itself not only an invader but is in actual occupation of nearly half the area of a state without any lawful authority from any source. This is naked aggression of which no one can approve, but there is no sign of disapproval in the present proposals.”

Rau’s appointment to the International Court of Justice at The Hague marked the culmination of his international career. He accepted the position in the hope that its relatively lighter judicial workload would allow him to write a book on the making of the Indian Constitution - a project that remained unfulfilled.

It is seldom recalled that Rau was among the first Indians nominated for the Nobel Peace Prize, arguably in recognition of his distinguished diplomatic record. He was also considered for the office of the UN Secretary-General, though his acceptance of the judgeship at The Hague effectively foreclosed that possibility.

Rau was, in many ways, India’s window to the world, representing the country with integrity and composure - qualities intrinsic to his public life. In his speeches abroad, he reflected the modern constitutionalism that India embraced, yet resisted presenting it as a rupture from the past. He frequently located constitutional principles within India’s civilisational traditions. In an address in New York, responding to the claim that India had adopted a largely “borrowed” Constitution, Rau argued that several of its foundational ideas were not foreign to Indian thought. He invoked the Upanishads and the Arthashastra to demonstrate that notions of paramount law and social welfare were deeply embedded in the sub-continent’s intellectual history.

Rau passed away in Zurich on November 29, 1953. The following day, The New York Times paid tribute to his contributions and the Parliament of India departed from convention to honour him despite his not being a member. Yet, over time, Rau receded into the margins of collective memory – remembered, if at all, primarily for a single chapter of his career. A reality that does injustice to his contributions.

Swapnil Tripathi leads Charkha, the Constitutional Law Centre at the Vidhi Centre for Legal Policy.

To honour Rau’s legacy, Charkha – the Constitutional Law Centre at the Vidhi Centre for Legal Policy – has instituted the Annual BN Rau Memorial Lecture, through which each year, a distinguished scholar will reflect, in an Indian language, on the disciplines that animated Rau’s life.