In his address at the 29th Justice Sunanda Bhandare Memorial Lecture on
Friday, Delhi High Court Chief Justice DK Upadhyaya emphasized the distinction
between having a constitution and practicing constitutionalism, underlining the
critical role of the rule of law. Justice Upadhyaya noted that while even authoritarian
regimes may have a constitution, they often lack the true spirit of
constitutionalism, citing the rise of Adolf Hitler as a key example.
"Having a constitution and practicing constitutionalism are two
distinct concepts," Justice Upadhyaya said. "What separates these two
is, in my understanding, the rule of law. Even authoritarian regimes may have a
constitution, but without constitutionalism. A prime example of this is the
rise of Hitler after World War I in Germany."
Justice Upadhyaya explained how Hitler, who came to power through democratic
elections, ultimately manipulated laws to establish himself as a dictator.
"Hitler was elected Chancellor of Germany according to the laws at the
time, but he amended the laws and lawmaking procedures to become, by following
the law, a dictator. This highlights the difference between merely having a
constitution and truly practicing constitutionalism," he said.
Discussing the event's theme, "India's Modern Constitutionalism,"
Justice Upadhyaya delved into the features of the Indian Constitution and its
evolution since independence. He highlighted the Constitution's unwavering
commitment to equality and the principle of separation of powers, which divides
authority among the legislature, executive, and judiciary. He emphasized that
the exercise of power must always be accompanied by accountability.
Justice Upadhyaya praised India's constitutional framework for its
resilience in upholding the rule of law, ensuring institutional accountability,
and safeguarding the rights of citizens. He also lauded the judiciary's role in
expanding constitutional rights, particularly under Article 21, which has been
interpreted to include the right to live with dignity, the right to livelihood,
the right to a fair trial, the right to education, and the right against sexual
harassment, among others.
The Chief Justice acknowledged the judiciary's role in addressing
"constitutional silences," where certain principles were not
explicitly mentioned in the Constitution, and filling in those gaps through
landmark judgments.
In conclusion, Justice Upadhyaya stressed the importance of accountability
in India's institutions. "Constitutionalism is an evolving concept.
Features like separation of power, the rule of law, institutional accountability,
and the protection of people's rights continue to shape our jurisprudence.
Institutions must not only exercise power but also remain accountable for their
decisions and actions," he concluded.
