In the last week of October 1947, B.N. Rau the Constitutional Advisor to the Constituent Assembly of India produced a Draft Constitution. This Draft reflected the reports and recommendations of the various Committees appointed by the Constituent Assembly over the course of the previous year. It contained 240 articles and 13 schedules and was presented to the Drafting Committee on the 27 October 1947. Over the course of the next couple of months, the Drafting Committee scrutinised the B.N. Rau’s Draft and on 21 February 1948, submitted the first Draft Constitution to the Chairman of the Constituent Assembly. A majority of the Constituent Assembly’s deliberations were around this Draft Constitution.
After B.N. Rau passed on his Draft to the Drafting Committee, he went on a world tour to meet with constitutional law experts and seek their inputs on different features of the Draft Constitution. This tour played an important role in the final form of the Constitution of India, 1950 - particularly his visit to America.
His first stop was New York, where he met with the Chief Justice of the American Supreme Court along with other Justices. The Justices seemed to have suggested to Rau that in the event of a conflict between the Directive Principles of State Policy and Fundamental Rights, the latter should prevail. Rau, in a letter to the Constituent Assembly, proposed amendments to Draft Consitution that reflected this view. However, this clause did not appear in the Constitution of India, 1950.
Rau’s Draft contained an Article (Article 21, Constitution of India) on personal liberty with a ‘due process’ clause. Justice Frankfurter warned Rau that ‘due process’ was undemocratic - it would give immense power to the judiciary to strike down legislation passed by the parliament, and further added that it would be a burden on the judiciary. Rau was convinced - in his letter to the Assembly he recommended the dropping of the due process clause.
Later on, at various points during the constitution-making process, the Assembly saw conflict between those members who wanted ‘due process’ and those who wanted ‘procedure established by law’. In the end, the Assembly settled on ‘procedure established by law’.