• Research/Scholar Paper name – A NOTE ON THE LIVING TREE DOCTRINE AND ORIGINALIST APPROACH IN CONSTITUTIONAL INTERPRETATION IN INDIA
  • Author: Amrutha Srinivasa Desikan
  • Institution: Hidayatullah National Law University, Chhattisgarh
  • Affiliation: Centre for Study of Contemporary Legal Issues
  • Date of Publication: 24/06/2021

Abstract:

The question of constitutional interpretation is as old as the Magna Carta itself. At times, how the words of a constitutional provision are interpreted make the difference between life and death. These interpretations are reflective of the ideals of the judge and the context of a matter. Traditionally, the originalist approach has been employed in interpreting constitutions. These are conservative styles that work on the premise that the true intention of the drafter is the final word. However, this approach leads to an overly pedantic view of law and society. It does not give law any space to breathe or grow. 

On the other hand, a more liberal view of constitutional interpretation has been consistently preferred by Indian judges. Adopting the Canadian “Living Tree Approach”, judges have been able to view society, and by extension, the law governing society as capable of change, just like the humans it is built to govern. This organic view of constitutional law is not without its disadvantages, of course. It hands the judge a great deal of power in judicial activism, which, is vested in the wrong hands, may run contrary to the very principles of democracy. Principles like the Basic Structure must be given biblical importance and treated as absolutely non-negotiable.

For this reason, any application of the Living Tree Doctrine must be made with ample doses of caution from the Originalist Approach. The correct blend of the two will create an ever-evolving constitution that respects the hard limits set down by the creators of the Constitution.

The “Originalist” approach to constitutional interpretation is a self-evident and popular one. It calls for interpreting legal text with regard to the true literal meaning of the words, or the intention with which the drafters chose those words. The originalistic approach is powerful and extremely important. Derogations from this approach that are too vast might be poisonous for a democratic system. It ensures that no governmental organ can bend and twist the words used in legal text beyond its intended meaning. The people choose representatives, who take extreme care and foresight in building legislative systems. A democracy is only as grounded as its constitution and its protection is.

The “Living Tree” approach, on the other hand, pertains to an organic interpretation of a constitution. It calls for the evaluator to view a constitution as a living, breathing creature, rather than a book of rules to be strictly interpreted. Accordingly, the literal meaning of legal text is not given as much importance as a broad and liberal expansion of its scope. The approach seeks to protect the ultimate purpose of the laws, rather than the specific words used in them. In the Constitution of India, the preambular words “we, the people of India” clarify the most important premise: that the people are sovereign. Almost befittingly, the Constitution has been amended consistently through its life so far to meet the needs of the people and the ever-changing demands of society.

Emile Durkheim likened society to a living organism. Given that Constitutions are built to clothe societies with order, it is only logical that they be treated as “living organisms capable of growth and change”. A rigid and inflexible constitution only creates problems for the people. It can be likened to dressing an adult in the clothes they wore as a child for their entire life. If the constitution is not interpreted as malleable and capable of growth or change, it will quickly become outdated.

A NOTE ON THE LIVING TREE DOCTRINE AND ORIGINALIST APPROACH IN CONSTITUTIONAL INTERPRETATION IN INDIA

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