Politics, Law, and “Founding Moments” in Late Colonial India


Review of Norms and Politics: Sir Benegal Narsing Rau in the Making of the Indian Constitution, 1935-50, by Arvind Elangovan 

New Delhi: Oxford University Press, 2019


When Benegal Narsing Rau died in 1953 at the age of 66, he was a judge on the International Court of Justice at The Hague and had barely completed a year on the court. Prior to his election to the court, which was supported by the United States, Rau had a stellar career as the Indian Representative at the United Nations during India’s tenure at the Security Council, and as a member of the International Law Commission. The New York Times, reporting his death on November 30, 1953, called him “a lawyer of international renown” and a “world peacemaker,” and referred to most of his adult life as devoted to conciliation and mediation on “a national, regional and local basis.”

Tellingly, left out in this obituary were Rau’s phenomenal contributions to Indian constitutionalism and, more specifically, to the making of independent India’s constitution. In his role as the adviser to the Constituent Assembly, which drafted the Constitution of India between 1946 and 1950, Rau prepared the first draft of the constitution, compiling provisions and recommendations drawn up by various committees in the Constituent Assembly. Rau was also instrumental as an adviser in drafting the constitution of independent Burma. In most legal and constitutional histories of South Asia, Rau is often confined to footnotes (if cited at all) as a member of the Indian Civil Service who worked in the interstices of the colonial state. Arvind Elangovan’s book seeks to correct the record by bringing to light the long-forgotten role that Rau played in the making of Indian constitutionalism through an extremely readable, thought provoking, and archivally rich meditation on the thought and writings of B.N. Rau in decolonizing India.

Histories of Indian nationalism and constitutionalism often go hand in hand, such that the legitimacy of anticolonial nationalism and its object, the democratic nation-state, have often justified sidelining constitutional thinking that did not speak to a tradition of democracy or popular sovereignty. Rau was one jurist and constitutionalist who did not think that a direct translation of popular will was essential for constitutions. This tradition of non-democratic constitutionalism was particularly prevalent among the leaders of the Indian princely states, liberals, and minority religious groups who, like Rau, did not see a centralized, democratic unitary state as the solution to the Indian problem. While Elangovan’s book does not allude to the constitutional tradition in which Rau is situated, it cannot escape notice that what is being presented as the asynchrony of nationalism, colonialism, and constitutionalism is more appropriately understood as a clash of constitutional worldviews, worldviews that sought to draw legitimacy from the popular will on the one hand, and those that sought legitimacy from existing imperial or non-democratic legal and political norms, on the other.

The main burden of the book is to show that nationalism and constitutionalism, and colonialism and constitutionalism, existed in utmost tension with each other in late colonial India. Elangovan meticulously shows us this tension, chapter after chapter, through a careful reading of the archive around B.N. Rau. He focuses a great deal on the notes and memoranda that Rau wrote on the various provisions of the Government of India Act of 1935. The Act of 1935 was the most elaborate statute passed by the British Parliament for its Indian colony. Elangovan argues that for Rau the act was not “an ordinary piece of legislation” but a “fundamental piece of legislation, like a constitution” (35). Rau’s treatment of the act as a constitution is presented here as the fountain of most of the conflicts that he faced with the leaders of the Indian National Congress and colonial officials. 

When the Act of 1935 came into force in 1937, one of the primary tasks ahead of the legal machinery in colonial India was to adapt all existing laws to conform with the new basic law of the colonial state. Rau was given this enormous task of legal adaptation, where he was often at cross purposes with colonial officials. The areas of conflict ranged from Rau’s insistence that the University of Calcutta, which had the status of a corporation, be declared a federal university by overriding the Calcutta University Act of 1921 that had transferred the administration of the university to the Provincial government of Bengal, to his insistence that the province of Punjab be deprived of its power to impose duties on foreign imports. While a particular reading of the relevant provisions in the act might allow for both of these conclusions, India Office officials retained Calcutta University as a State University and continued to allow Punjab to tax its imports. Elangovan’s point is that the colonial officials took recourse to “administrative convenience” over constitutional principles, leaving Rau’s constitutionalism high and dry. 

The discretionary power of the Governors, as provided in the act, was a highly contentious topic in the late 1930s. Mahatma Gandhi and other Congress leaders argued that the promise of provincial autonomy in the act was defeated by the untrammeled powers given to the Governor, a colonial appointee. Elangovan shows that Rau’s opinion on this issue was to work with the act rather than wreck it, which is to say that he accepted the principle that Governors ought to exercise discretionary powers and that any extra-constitutional limits on this power should be avoided. In other words, Rau did not accept the nationalists’ demand that Governors give an extra-constitutional assurance that they would not exercise their discretionary power, which in fact was constitutionally granted to them. Thus, a kind of fidelity to constitutionalism and legal documents seemingly devoid of any political ideology was at the heart of Rau’s conflict with the nationalists and the colonial officials. For Elangovan, this conflict shows that constitutions are not essentially a product of “consensus,” but are “contested” and “conflict-ridden” all the way. The argument that dissensus makes constitutions has enormous weight for postcolonial India, where histories of the Constitution, as Elangovan shows, have been written as an act of consensus and national unity.

Another central focus of the book involves the relationship between politics and constitutionalism. Elangovan’s point of departure is that an adequate history of Indian constitutionalism has to grapple with the “conflict-ridden political history of late colonial India” (1). To my mind, this is perhaps the most significant contribution of the book, for it allows historians to see and take more seriously the clash between different political ideologies and interests as having constitutional or legal consequences. This is especially important considering that a tradition of legal scholarship on South Asia still regards the founding of India as a revolutionary, democratic moment, marking a sharp rupture with colonial constitutionalism. While the founding of India as a democracy was no doubt an important development in the history of world democracy, a historian will find it fruitful to see the continuities and discontinuities between the colonial and the postcolonial even in a caesura like the making of the Indian constitution. 

The problem of over-essentializing the Indian constitution as a new founding, as Faisal Devji eloquently writes, often entails “consigning the past to history.” Elangovan’s book is a valuable historical treatment of the long shadows cast by India’s fractious politics not only on the constitutional choices made by the leaders of the Indian National Congress and the Muslim League, but also on India’s founding. It is not often that we think about constitutionalism as a dynamic set of political values that shift according to the contingencies of the time. For instance, the distribution of seats in the Constituent Assembly, and the debate as to whether the Assembly should start its proceedings before representatives from the Muslim League and princely states came in, were more matters of politics than law. As Elangovan argues, the history of the Constituent Assembly shows that it was largely “an instrument of political negotiation between the Congress and the League” (116).

For Rau, constitutions were to stay “above politics.” In his constitutional thought, the main purpose of a state was to ensure the economic and social development of the people and to contribute to world peace. He limited the sphere of politics to that of good governance and the common good. Rau’s constitutional vision for postcolonial India did not rest on individual rights. He expressed reservations about including Fundamental Rights in the constitution, for he thought that any such enumeration of rights in a basic law would only lead to an interpretive battle over and expansion of these rights in the courts, as had occurred in the United States. Rather, he thought that the rights of the citizens were best left to the legislature(s) of the state(s) who could pass specific laws about these rights. As Elangovan writes, “Rau placed far more faith in the legislature to frame appropriate laws that would guarantee these freedoms better” (p. 179). Thus, Rau gave more importance to the Directive Principles of State Policy (taken from the Irish Constitution of 1937), listing the developmental duties of the state, than to Fundamental Rights, which were to limit the freedom of the state. While the Fundamental Rights or freedoms that were eventually enshrined in the Indian constitution had significant caveats (like public safety and health) attached to them, Rau’s vision eventually failed to find adherents.

In many ways Rau’s constitutional career reminds us of how fast those who stuck to depoliticized constitutionalism were losing ground in decolonizing India. Rau was a major advocate of federation throughout his career. In fact, he thought that an enduring solution to the Indian problem of reconciling sovereignties and claims of various Indian groups lay in federalism. The federation that he conceptualized relied on provincial autonomy, as in the Act of 1935. For Rau, elevating the provinces and the princely states to the same level and allowing these states and provinces internal autonomy in local matters would answer the problem of Hindu-Muslim conflict, on the one hand, and the problem of semi-independent princely states, on the other. 

Even though the book does not mention his federalist ideas as a site of conflict with the nationalists, by the end of 1948 it was clear that Rau’s constitutional vision fell flatly in line with the federalist vision enshrined in the Act of 1935. When the Union Constitution Committee submitted its report, as Rau’s private papers show, he crossed out every occurrence of the word “Union” in that document and replaced it with “Federal.” His pencil marginalia argued that as the structure proposed to be established by the constitution was federal in character, the term “federation” was more appropriate. He thought that India had achieved a Canadian type of federalism, instead of Australian or American type, because as in Canada, residuary powers lay with the center and not with the states. He continued to refer to India as a federation and to the Indian constitution as a federal constitution, even though the constitution itself did not use the word “federation.” For the constitution of India was a “Union of States,” suggesting that the states did not become a part of the union with a right to secede. The main reason Rau’s vision of group/community rights, as opposed to individual rights, was sidelined had to do with the fear of Balkanization. This was also true of his vision of federation, in that Indian nationalists feared that a decentralized federal state with local autonomy would only lead to divisions and conflicts. 

When Rau resigned as the adviser to the Constituent Assembly he already knew that his federal vision would not find favor with the Indian nationalists. The intertextuality and imperial constitutionalist ethos that characterized his constitutional and federal vision are noteworthy. Rau took the whole empire as an interlinked web of constitutional precedents. He was especially adept at finding precedents in the British Commonwealth to buttress his legal arguments, so much so that he even compiled them into his book Constitutional Precedents in 1946. Indian constitutionalism for him was a subset of imperial and commonwealth constitutionalism. Though the book does not dwell on what constituted a “norm” for Rau, it seems to me that the constitutionalism of the empire, as best instantiated in the dominions, was a constant referent for Rau. In Hans Kelsen’s terms, for Rau they constituted a “basic norm,” which could validate all the constitutional norms in India. He saw the Act of 1935 as part of a set of legal and constitutional norms that were validated by imperial and commonwealth constitutionalism.

Rau is a key figure for understanding the entangled histories of colonial India and the British commonwealth in the decades leading up to decolonization. A. G. Hopkins argued in a much-cited article in 2008 that histories of decolonization have focused on Asia and Africa to the exclusion of the dominions and the commonwealth. In particular, the history of colonialism and decolonization have disproportionately focused on direct colonial rule, leaving out those areas that were already semi-independent such as the princely states in India, or the dominions that had even greater independence than the princely states. Commonwealth constitutional history, or the study of “the sources, legitimizations and control of state power” through the shared experience of the empire, as Harshan Kumarasingham argues, “is intrinsic to understanding the process of decolonization and the post-independence travails.”

Elangovan’s book unambiguously gestures toward the need to place the history of Indian constitutionalism and commonwealth constitutionalism in the same analytical framework. For Rau, the Indian problem was “a problem of the founding of an independent state” (137). He thought that all the dominions had dealt with the same problem of “competing claims of nationhood” at their founding. Thus, the “founding moments” of the dominions in the commonwealth had the answers for some of the pressing problems in Indian constitutionalism, including federation and the Hindu-Muslim conflict. Rau was eager to keep India in the Commonwealth and he along with Arthur Berriedale Keith had argued that republicanism and commonwealth were not incompatible, suggesting that India could remain in the British Commonwealth even after adopting a republican constitution. They both pointed to the Irish Constitution of 1937 as precedent, for it did not mention the relationship with the British monarch. 

Ironically, the limits of Rau’s thinking also lay precisely in his encyclopedic knowledge of the British Commonwealth. By sidestepping the political (and racial) differences between India and the dominions, Rau constantly found himself on the wrong side of constitutionalism in India. While he enthusiastically drew parallels between India, Canada, and Australia as all united in “the problem of living together,” it was also possible to see plenty of differences between these colonies. For one, the problem of the princely states—which is totally absent in the book—was key for any constitutional settlement in India. Much of the conflict that the book describes between Rau and the nationalists on the one hand, and Rau and the colonial officials on the other, had parallels in the jurisprudence that applied to the Indian princely states. For instance, the discretionary powers of the Governors were a key provision that the princes themselves had bargained for in the Act of 1935, for they thought that these powers were the only safeguard they had if a hostile elected ministry were to undercut their rights. In fact, the British even passed special protective laws, such as the Indian States (Protection) Act 1934, to safeguard state rights and ward off treasonous activities against the princely states in the provinces. The point here is that the book limits itself by not seeing the wider ramification of the constitutional issues that arose outside of the imperatives of the relationship between the leaders of the Congress and the League.

Elangovan’s book makes significant contributions to how we understand the relationship between nationalism, colonialism, and constitutionalism, on the one hand, and between law and politics in late colonial India, on the other. It is not often that we see a work that takes political differences and ideological conflicts among Indians as crucial for understanding the constitutional trajectory of late colonial India. Even as the book is titled “Norms and Politics” we hear little about norms. Nor do we see, as I already mentioned, anything about a deeper engagement with the constitutional worldview to which Rau felt attached. I close this review with a reflection on those two aspects. 

The word democracy, or any conception of popular sovereignty, is almost absent in the book. Democracy was by no means an uncontested idea in decolonizing India, and it is not surprising that B.N. Rau did not support it unreservedly. In “Parliamentary System of Government,” an article published in the Washington Law Review in 1949, Rau argued that “the essence of the parliamentary system is that the monarch or king must govern the state on the advice of ministers responsible to the people.” Rau went on to suggest that this system existed in ancient India and that many of the ancient Indian texts on statecraft, including Kautilya’s Arthasastra, made references to it. While he traced the presence of a parliamentary system in India from at least the fourth or third century B.C., there is a black hole in his genealogy between the thirteenth and eighteenth centuries. In other words, the medieval period–or the period of Muslim rule in India–is totally left out in his history of parliamentary government. Picking up the thread again with the arrival of the British, Rau goes on to show that at every stage in the constitutional development of India under the British, there was a progressive realization of the parliamentary system. Thus, for him, the Act of 1935 was the culmination of the gradual granting of parliamentary government that the British began in the nineteenth century, and he saw great merit in the act’s provisions granting responsible government both at the center and in the provinces. But what is again striking here is that he does not talk about democracy or popular sovereignty, suggesting that parliamentary government was the pinnacle of a conception of responsible government for him–a government in which the instrumentality of popular will as represented in the legislatures and in the ministers was circumscribed by the discretionary powers of the Governors and Governor-General. The idea of responsible government, a term of art in imperial constitutionalism, was first used in Canada in the early nineteenth century. Rau was well versed in the history of the establishment of responsible government in Canada under the aegis of the British government. 

This brief historical foray into Rau’s constitutional thought suggests that he was clearly someone who did not fall on the side of the Indian nationalists. The conflict that he faced with them was a manifestation of constitutional difference, or the deep-rooted differences that lay in their constitutional vision. Examining the implications of this constitutional difference is different from asking why Rau insisted on regarding the Act of 1935 as a constitution. The Act of 1935 lacked democratic legitimacy for the nationalists, but it was a constitution nevertheless. The act was the result of many years of deliberation, leading to numerous dead ends, starting with the Simon Commission Report (1929), and moving through the Round Table Conference (1930-32) and the White Paper and Join Select Committee Report (1933), among others. 

All these deliberations took place with the avowed purpose of writing a constitution for India. As the celebrated Urdu writer Saadat Hasan Manto’s famous story “The New Constitution” shows, even a rikshaw puller (Ustad Mangu, the main protagonist in the story) thought that the Act of 1935 was a constitution and was to grant Indians new freedoms. The act was seen as a constitution by everyone, for it was nothing but a constitution. Laying weight on the question whether the Act of 1935 was a constitution or not, and using that as an optic for viewing the conflict between nationalism, colonialism and constitutionalism seems less appealing to me. What is needed is a deeper reflection on Rau’s own constitutional ideology and normative commitments. That would help us situate him in existing traditions of non-democratic constitutional thought, which, as my own work suggests, was very dominant in decolonizing India. 

Lastly, the book leaves unattended the theoretical implications of the relationship between law/norms/constitutionalism and politics in late colonial India. If the argument is that “political history matters” for Indian constitutionalism (237), then one wonders about the relationship posited between law and politics in the book. Carl Schmitt argued that constitutions were fundamentally a manifestation of the political will of the people, or the will of a political unity. For Schmitt constitutions were not abstract entities, but were “positively established” by a political will. In this conception, the notion of the political is central. The nature of the political community and its binding unity (often established in relation to its enemies) were to impart a political character to a constitution. Thus, for Schmitt, constitutions were by definition documents that represented the status of a state or political unity. 

On the other hand, Hans Kelsen argued that legal norms were valid only because a higher norm deemed them valid. In his scheme, the chain of ever higher norms stopped at a “basic norm,” which needed presupposing rather than validation by a superior norm, for none could be found. Kelsen strove to come up with a pure theory of law and constitutionalism that was not reducible to politics, and, in a circular fashion, sought to explain legal norms through a closed system of legal norms. For example, the constitution of the United States would be a basic norm in Kelsen’s theory, and it would be the basic validating norm for the U.S. legal system in general. Now, one wonders where B.N. Rau’s or Arvind Elangovan’s conception of norms would fall. As briefly mentioned above, to me Rau seems quite close to Kelsen in wanting to keep law out of politics, and in drawing on the Act of 1935 and imperial constitutionalism as an interlinked set of basic norms. Unlike the nationalists, for Rau these norms did not need any popular validation (or legitimacy). They were valid because they belonged to the same imperial legal system. 

In a multi-cultural and multi-jurisdictional country like India, a political unity that could manifest as political will was highly problematic, for any political unity would entail a unity of purpose or the identification of a common set of enemies. In India neither the British nor the Muslims nor the Princes were a common enemy to any political community. The Indian nationalists created a political unity by force, and it is that forceful unity that people like B.N. Rau resented, paving the way for his exit from the Indian constitutional scene in 1948. I think the argument that politics matters or politics inflects constitutionalism, as advanced in the book, is not to suggest that constitutions ought to incorporate a political will of the majority, even though that is often the outcome of the politicization of constitutions. Rather, it is an argument for taking seriously the conflicts and dissensus that retrospectively get papered over in the histories of “founding moments.” In this regard Elangovan’s book, the result of painstaking, decade-long research on Indian constitutionalism, is a remarkable achievement. 




Posted on 24 August 2022

SARATH PILLAI is a postdoctoral research fellow at the Center for the Advanced Study of India (CASI) at the University of Pennsylvania. He received his PhD in History with distinction from the University of Chicago. His research examines the worlds and futures of federalist ideas in late colonial India.