Delhi High Court Chief Justice D K Upadhyaya on Friday drew a line between “having a Constitution” and “practising constitutionalism”, stressing that even authoritarian regimes “have a Constitution but sans constitutionalism”. He made the remarks while speaking at the 29th Justice Sunanda Bhandare Memorial Lecture in Delhi.
“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 sans constitutionalism. The best example of this is the rise of Hitler, after the First World War, in Germany. Everyone knows he was an elected Chancellor of Germany at the time but he amended the laws or law-making procedure in such a manner that he became, by following the law, a dictator. That is the difference I wanted to point out, Chief Justice Upadhyaya, the chief guest at the lecture, said.
“India’s constitutionalism is modern in the sense that we have tried to have a broader approach in engaging and interpreting the Constitution. Being modern does not mean that everything old is bad. We must acknowledge that there are certain features of constitutionalism on which it keeps evolving. Separation of powers, rule of law, accountability of institutions and protection of people’s rights are such features where we keep expanding our jurisprudence,” he added.
Chief Justice Upadhyaya further stressed that “in recent decades, the judiciary has delivered numerous landmark judgments that have strengthened constitutional principles,” referring to expanding the right to equality as one such example.
Adding that “courts often refer to academic writings when deciding complex constitutional issues”, Chief Justice Upadhyaya further highlighted the role of academic scholarship in shaping the modern Constitution.
Justice (retd) Madan Lokur and senior advocate Indira Jaising were the other speakers at the event.
Jaising cautioned that the “modern Constitution is under siege”. “What I am witnessing is a kind of repudiation of the Constitution by those who are responsible for upholding it. This is done in many ways – formal and informal. Formal way is, the amendment of the Citizenship Act and the conversion laws, the justification for which is ‘love jihad’,” Jaising pointed out. Jaising also went on to label Justice Shekhar Yadav’s remarks as “hate speech” and cited it as an example of the threat to the unity and integrity of the state.
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Allahabad High Court judge Justice Shekhar Yadav was recently in the news over his controversial remarks at an event organised by the Vishwa Hindu Parishad.
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