Book Review
Our Constitution: A Question of the “Road Not Taken”?
By Jaishankar Bondal
A Review of the Book 'Norms and Politics: Sir Benegal Narsing Rau in the Making of the Indian Constitution, 1935-50' by Arvind Elangovan (Oxford University Press India, 2019)
The author, Arvind Elangovan is a graduate of JNU, Delhi, and University of Chicago USA.His research interests focus on exploring political history frameworks within which constitutional developments came about in late colonial and post colonial South Asia. He currently teaches History at Wright State University, Ohio. ‘Norms and Politics’ is his first book.
Reviewer's Note
The Indian Constitution is a written document--- at over 150,000 words, the world`s lengthiest. At the time of enactment, it had 395 articles in 22 parts with 8 schedules. With amendments done over 75 years since enactment, it clocks at 470 articles grouped into 25 parts, 12 schedules and 5 appendices. It has been amended 105 times, the latest being effective in Aug.2021. Many constitutions of the world were studied, ranging from USA to South Africa, France and (USSR) Russia in the course of its construction. Dr. B.R. Ambedkar noted later “we ransacked the world`s constitutions for this”
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Scholarly interest in this document that guides the world`s largest democracy, has naturally continued over the years, as also an interest in the forces that shaped it. A whole slew of latter day scholars as Upendra Baxi, Vikram Raghavan, Sudipto Dasgupta, Madhav Khosla, Pratap Mehta, H. Kumarasingham and Rohit De have opened up new avenues of thinking about Indian constitutionalism.
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The Drafting Committee (on the Indian side) empowered by the Constituent Assembly to discuss and create the Constitution was set up in end Aug.1949 had 7 political members - all with a legal background, and participants, one way or another, in the ongoing National Movement for Independence. They completed their work by 26 Nov 1949, and the Constitution was adopted by the Assembly on 26 January 1950. Their Constitutional Adviser was a well respected bureaucrat with a distinguished career in the Indian Civil Service, and an enviable track record of work on the judicial and executive side - Sir Benegal Narsing Rau (1887-1953). He had already made a mark by overseeing, successfully, the implementation of the Govt of India Act, 1935 which marked the first step in devolving power to the Indian side.Rau enjoyed immense trust and faith in the highest echelons of colonial administration, and was trusted equally by the Indian leadership in these catalyzing moments of political and constitutional changes. In 1953, when he passed away, he became the sole non-political figure [to the present day] to be condoled in the Indian Parliament with a written tribute read out by the Prime Minister, Jawaharlal Nehru, who recalled him as “the perfect civil servant”.
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This reviewer felt, therefore, that an appreciation of Sir B.N.Rau`s seminal contributions to making of modern India [as enunciated in Elangovan`s work] would be of special interest to the target audience of Chitrapur Saraswat community.
Arvind Elangovan writes a unique work examining Sir B.N.Rau's overall role in the drafting the structure of the Indian Constitution, and his tireless ability to always rise above pressures of partisan politics to reach a workable solution. He notes that in providing such an impartial perspective, Rau often imbued his work with idealism unexpected of a civil servant. Thus “Rau`s life and career becomes an irresistible window from where to view critically the years from colonial to post colonial India” Through his bureaucratic interventions, Rau critiqued colonialism, but was equally apprehensive of India`s hypernationalism.In particular he had a concern for development and good governance at the heart of Independent India`s constitution by pushing politics to the margins. Though such ideals were not accepted by India`s leadership, his work ,when reconstructed and seen through a perceptive eye, actually emerges as a powerful measure of alternative possibilities the country could have chosen at the cusp of its emergence on world stage in 1947 as a political entity. Thus Rau`s contribution in the realm of ideas enables us to consider what Elangovan terms as the “Road Not Taken” - a viewpoint to evaluate India`s transition from colonial to post colonial era.
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A review of Rau`s career points to the level of significant positions he held, and how this expertise and role became critical at the time the Indian Constitution was created. He was the only Indian candidate to be selected for the ICS in 1909, and soon made a mark in the executive and judicial branch in Bengal. He had specifically asked the British administration not to post him to Madras Presidency as his father owned properties there, and the family had a large number of friends in that area which could lead to a clash of interests, and “may make it difficult for me to perform my duties unhampered.” So he asked to be assigned to Burma. The Civil Service Commissioners sent him to Bengal instead. (Today,how many civil service incumbents in India[or fresh entrants for that matter] would lay stress on such levels of integrity,or for that matter,even think about such issues?!!)
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Rau`s reputation as a legislative and constitutional expert grew when he was appointed as Legal Remembrancer and Secretary to the Assam government in the Legislative Department in 1925.It was from here that he was called in to officiate as Officer on Special Duty in the Reforms Office of the Governor General, to supervise the implementation of the Act of 1935.Though this Act is seen as legal precursor to the final document of Indian Constitution in 1949,scholars have now become more aware of the complex dynamics contained within its enactment and implementation. In advising the Constituent Assembly, Rau combined his extensive experience of colonial Indian administration with his acute knowledge of justice systems of other countries of the world.As a member of the Drafting Committee for the Constitution, he worked very closely with Chairperson Dr. Ambedkar on deciding the finer aspects of the Constitution before the Constituent Assembly saw the final draft in 1948.
The author has used Rau's notes, drafts and memoranda with different political leaders, all of which are scattered, but they all show that Rau`s ideals gather around the pivotal concept of separating the realm of politics from the architecture of the Constitution. Central to achieve this was an emphasis on Directive Principles of State Policy that would enable the Indian state to pursue common good of development, and a corresponding underemphasis on the idea of judicially enforceable rights. For Rau, such a Constitution was not a recipe for an authoritarian state. In his view, the Constitution needed to establish a State guided by institutions that would be above partisan interests. Thus these institutions had to be headed by the office of the President, executed by a responsible legislature that needed to function with, and yet above, political interests. Finally, the Directive Principles of State Policy had to guide the severely competitive political scene.
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From this standpoint, justiciable fundamental rights had to assume a subordinate, and not an equal, position within the overall framework of the Constitution. Rau's idea of such a structure came at a critical moment when India was moving from a colonial to a post colonial society. At this juncture, the framers of the Indian Constitution had several choices, and eventually chose a path quite unlike that what Rau had envisioned. The Indian Constitution, adopted in 1950 placed fundamental rights in the Constitution with several restrictions on its exercise; it made the President`s powers only notional also centralized power at the Centre with ultimate control over provinces remaining in the national capital. All this led to a powerful post colonial state, one that could keep the country united, but also saw internal differences as a threat to the integrity of the nation state, rather than working towards accommodating these differences within the constitutional structure. The impact of making such a structure has reverberated in the remaining half of the 20th century, and continues to have its impact on the 21st century, with the rise and proliferation of several regional and diverse political interests. This constantly challenges the idea of India enshrined in the Constitution.Rau`s ideas in this context provide us an opportunity to recall a historic moment when a choice is available, but passed over.
​In 7 comprehensive chapters, Elangovan has analyzed in depth Sir B.N.Rau`s overview of the Constitution with special emphasis on the role of the President, his arguments for including the Directive Principles of State Policy, and finally his arguments against enshrining Fundamental Rights in the Constitution. Elangovan argues that Rau`s vision of privileging Directive Principles eventually materialized, but in a way that Rau did not envisage.
This did not mean, Elangovan says that Rau had a naïve outlook either on politics or the role of legislature. Indeed between the Legislature and Judiciary, he emphasized the former----not because he saw in it a realization of abstract principle of democracy or efficiency of popular representation.Rather, legislature for him was the engine to realize development for common good.Rau sought to institutionalize the containment of politics by incorporating the Directive Principles as an integral part of, and not as an “optional extra “of the Constitution.
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[It is striking to note, Elangovan mentions in an aside, that Rau had hands-on experience, at various times in his career, with all the directive principle type activities; his experience with initiating a Central Health Research Instt (1937-42), his efforts at drafting constitutional solutions to avoid the India-Pakistan partition (1945—47), his reports on fair working conditions for labour, including nutrition and health of workforce[1940],memorandum allowing temple entry to Dalits (1928), his work on tribal communities of Assam (1910—35) show that he did not just speculate on these principles. His personal experiences with these matters actually covered a host of social, economic and political problems of late colonial India. The subjects he lists are precisely around which much of political mobilization would take place immediately after Independence. Rau's emphasis on Directive Principles became the conduit for expression of political interests e.g. growth of Left Labour movement, the Ambedkar - led movement of scheduled castes and simmering issues of communal discord were some of such elements.
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Among lesser known efforts of Rau is that he drafted arguments for defending the 3 members of the Indian National Army (INA) - Sehgal, Khan and Dhillon - who were tried for sedition and waging war against British authority.(1945). Rau`s arguments were successfully used by Jawaharlal Nehru, Tej Bahadur Sapru, Bhulabhai Desai, - the defence team, to defend the trio.
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In a long note (1946) Rau explained the reasons for his skepticism about enshrining Fundamental Rights in the Constitution. He pointed out that though most countries had these features in their Constitutions, there was always a problem with their implementation. Mere mention of these rights could not serve these objectives, he felt. Drawing on examples from the US, he found that courts were inconsistent in their interpretation of “arbitrariness “He noted that enumeration of rights in general terms will leave both legislatures and law courts in the dark. Legislatures may make laws that were unconstitutional; leading to increased litigation. There was also the danger that entire bodies of legislation could be vetoed by insensitive judiciary or at the instance of influential litigants.
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Elangovan notes that Rau saw the moment of constitution making as one of addressing the issues of development and solve fundamental socio-economic problems of the day. Hence, his carefully thought out draft of Constitution had an active President, who could act independent of Cabinet, if occasion arose, an active legislature whose politics could be guided by the directive principles, a judiciary that would be limited and responsible to legislature and the whole structure of constitution being guided by the larger impetus of international cooperation.
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The book is not a valorization of Rau`s utopian ideas, nor does it eulogise the politics involved in creating the Constitution.Rather, it is a position to show how norms and politics intersected in late colonial India. This makes it difficult to view the developments of the era as either one of celebrating nationalism, or of searching for an elusive mantra for searching for an Indian identity. The words of an eminent political thinker and teacher described the founding moment thus “The idea of democracy was not an add on, but inherent in the idea of India as a nation state. If Indians were to take charge of their collective destiny, they needed to develop a common sense of belonging and become a reasonably cohesive political community…..This requires a shared identity, based on a shared concept of what the country stood for” (Bhiku Parekh quoted in ‘Politics and Ethics of the Indian Constitution’, OUP, 2008)
Elangovan`s arguments and ideas underline the fact that the political history of conflict did not just disappear at the moment of Constitution making. On the contrary, political history shaped the Constitution and continues to do so long after the post colonial period. An interesting alternative viewpoint, explained in the simplest possible manner that has to be included in the historiography of that era, which continues to impact the present. A valuable contribution to the thought processes on this subject.