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Mainstream, VOL LVIII No 10 New Delhi, February 22, 2020

One of the Forgotten Makers of the Indian Constitution

Friday 28 February 2020

by Ranbir Singh

Bharat Ratna Babasaheb Dr Bhim Rao Ambedkar has been legitimately recognised as the Architect of the Indian Constitution on account of his role in its drafting as the Chairman of the Drafting Committee for this Document which has been rightly described as “The cornerstone of a nation” by the famous American political scientist G. Austin. Babasaheb’s role in defending the draft of the Constitution during the debates on the provisions of the Draft Constitution in the country’s Constituent Assembly in his capacity as the Union Minister of Law is unforgettable.

Credit has also to be given to the first Prime Minister of India, Pandit Jawaharlal Nehru, who had, as the Leader of Congress Parliamentary Party in the Constituent Assembly, ensured majority support in the House to Dr Ambedkar for this purpose. So much so that the well-known expert on the Indian Constitution, Dr Subhash Kashyap, has aptly observed that Nehru had provided the soul of the Constitution through the Objectives Resolution that he had moved in the Constituent Assembly in 1946. It will also be unfair to belittle the role of Dr Rajendra Prasad, Chairman of the Constituent Assembly, who had competently conducted the proceeds of the House and created a conducive atmosphere in it for serious deliberation on various Articles on its Draft. Sardar Patel too had played a vital role in this context as the Chairman of two important Sub-Committees. Besides, all the members of the Constituent Assembly and Drafting Committee and Sub-Committees too had substantially contributed to the drafting of this Constitution by following the principles of “Consensus and Accommodation” so that the representatives of all sections of the Indian society could be satisfied by it. India continues to be a robust democracy despite the challenges which it had to face from time to time since the adoption of the Constitution of India in 1950.

A grateful nation keeps on constantly remembering all the makers of the Constitution in general and Dr B.R. Ambedkar in particular.

However Sir B.N Rau, the Constitutional Advisor, who played one of the most significant parts in the drafting of the document has failed to get due recognition from Indians despite having made an immense contribution to the process. It is pertinent to mention in the above context that the Constituent Assembly had unanimously adopted a Resolution that the Drafting Committee be set up to “scrutinise the Draft of the text of the Indian Constitution prepared by the Constitutional Adviser for giving effect to decisions taken already in the Assembly and for including all matters ancillary to the Constitution, and to submit to the Constituent Assembly for the consideration of the Draft Constitution as revised by the Committee”.

It may also be mentioned here that Sir B.N. Rau had not only studied all the major Constitutions of the world and made a comparative statement on those. He had also held detailed discussions on various aspects with legal experts of different countries including Justice Felix Frankfurter of the American Supreme Court. Frankfurter had advised Rau, on the basis of the American experience, against the inclusion of a clause for “Due Process of Law” in the Indian Constitution as it would impose an unnecessary burden on the judiciary. That is why Rau decided to adopt the Japnese concept of “Procedure Established by Law” for the judicial review by the Supreme Court of India.

Rau could successfully draft the Constitution of India because of his expertise and experience in administration and judiciary. He had passed the Indian Civil Services examination in 1910 but later on moved to the judiciary and was made a judge of the Bengal High Court in 1939. He had also worked with Sir John Kerr for preparing a note on how a provincial legislature in India might be designed to work better. Besides, he had also worked with the Reforms Office of the Government of India during the drafting of the Government of India Act, 1935. Rau had also served as the Prime Minster of Jammu and Kashmir in 1944-1945.

These experiences helped him in accomplishing the task of drafting the text of the Indian Constitution. He not only customised the Government of India Act (1935) to meet the needs of independent India while preparing the draft Constitution. But he had also richly adapted provisions of other Constitutions. The model of union executive had been adapted by Rau from the Constitutions of England and France. While the idea of Emergency Powers had been adapted by him from the Weimar Constitution of Germany, the idea of the Directive Principles of State Policy had been borrowed by him from the Irish Constitution.

The author is a Senior Fellow, Institute of Social Sciences, New Delhi.

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