Delhi High Court Chief Justice D K Upadhyaya on Friday underscored the crucial distinction between merely having a Constitution and actively practising constitutionalism. Speaking at the 29th Justice Sunanda Bhandare Memorial Lecture in Delhi, he emphasized that constitutionalism thrives on the rule of law, which authoritarian regimes often lack despite having a formal Constitution.
“We need to differentiate between having a Constitution and practising constitutionalism. What separates these two is the rule of law. Even authoritarian regimes may have a Constitution but without constitutionalism,” said Justice Upadhyaya. Citing historical examples, he highlighted how Adolf Hitler, despite being elected Chancellor of Germany, manipulated laws and procedures to establish a dictatorship.
The Chief Justice stressed that India’s constitutionalism is modern because it engages with and interprets the Constitution in a broad and evolving manner. “Being modern does not mean that everything old is bad. We must acknowledge that certain features of constitutionalism—such as separation of powers, rule of law, institutional accountability, and protection of people’s rights—continue to evolve and expand,” he stated.
Justice Upadhyaya also pointed to landmark judicial pronouncements in recent decades that have reinforced constitutional principles, particularly in advancing the right to equality. Additionally, he highlighted the significance of academic scholarship in shaping constitutional jurisprudence, noting that courts often refer to academic writings when deciding complex constitutional matters.
The event also featured retired Supreme Court judge Justice Madan Lokur and senior advocate Indira Jaising as speakers. Jaising raised concerns about what she termed as a “siege” on India’s modern Constitution. She warned that the Constitution was being undermined both formally, through legislative amendments such as changes to the Citizenship Act and conversion laws, and informally, through narratives that justify these laws.
She further criticized Justice Shekhar Yadav’s remarks, calling them an example of hate speech that threatens the unity and integrity of the country. “What I am witnessing is a kind of repudiation of the Constitution by those responsible for upholding it,” Jaising asserted.
The lecture, organized annually by the Justice Sunanda Bhandare Foundation, serves as a platform to discuss pressing constitutional and legal issues, reinforcing the judiciary’s role in upholding democratic principles and safeguarding constitutional values.
