Delhi High Court Chief Justice DK Upadhyaya distinguished between having a constitution and practicing constitutionalism, emphasizing the rule of law, institutional accountability, and the judiciary’s role in expanding rights within India’s framework.
New Delhi: Having a constitution and practicing constitutionalism are two distinct concepts, Delhi High Court Chief Justice DK Upadhyaya emphasized on Friday while underlining the importance of the rule of law in governance.
Authoritarian Regimes Have Constitutions But Lack Constitutionalism
Speaking at the 29th Justice Sunanda Bhandare Memorial Lecture, Justice Upadhyaya pointed out that even authoritarian regimes operate under a constitution, but they do not practice constitutionalism. He specifically cited the rise of Adolf Hitler as an example.
“Now we need to differentiate between having a constitution and practicing constitutionalism. What separates these two, in my understanding, is the rule of law. You know, even authoritarian regimes may have a constitution, but sans constitutionalism. The best example is that of the rise of Hitler after the First World War in Germany,”
Justice Upadhyaya stated.
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He further elaborated on how Hitler, after being elected Chancellor, legally amended laws to become a dictator while still operating within a constitutional framework.
“Everyone of us know that Hitler was elected the Chancellor (of Germany) as per the laws of the time in Germany but he amended the laws or law-making procedure in such a manner that he became, by following the law, a dictator.”
India’s Modern Constitutionalism and Rule of Law
Reflecting on India’s Modern Constitutionalism, Justice Upadhyaya remarked, “This year, the topic chosen for the annual lecture is of great contemporary importance.”
He highlighted key features of the Indian Constitution and how it has evolved since Independence.
- Commitment to Equality: The Indian Constitution stands out for its unwavering commitment to equality.
- Separation of Power: Legislature, Executive, and Judiciary operate independently to ensure accountability in governance.
- Institutional Accountability: The Constitution upholds the rule of law and ensures institutions are accountable for their actions.
Judiciary’s Role in Expanding Constitutional Rights
Justice Upadhyaya also spoke about the role of the judiciary in strengthening constitutional principles.
“The judiciary has also played a key role in expanding modern constitutionalism in our country. It has derived various rights under Article 21 such as the right to live with dignity, the right to livelihood, the right to fair trial, right to food and shelter, the right to education and the right against sexual harassment.”
He noted that in recent years, Indian courts have passed landmark judgments that continue to uphold constitutional values.
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The Future of Constitutionalism in India
Justice Upadhyaya concluded by emphasizing institutional accountability as a core principle of constitutionalism.
“We must acknowledge that there are certain features of constitutionalism on which it keeps evolving. Separation of power, rule of law, accountability of the institutions and protection of people’s rights are such features on which we keep expanding our jurisprudence. Institutions must not only exercise power but also be accountable for their decisions and actions.”
His speech reaffirmed the strength and adaptability of India’s constitutional framework, ensuring that it remains a pillar of democracy and governance.
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