CENTRE FOR ACADEMIC LEGAL RESEARCH | JOURNAL OF APPLICABLE LAW & JURISPRUDENCE

Volume 1 | Issue 1

“A NOTE ON THE LIVING TREE DOCTRINE AND ORIGINALIST APPROACH IN

CONSTITUTIONAL INTERPRETATION IN INDIA”

By: AMRUTHA SRINIVASA DESIKAN (HIDAYATULLAH NATIONAL LAW UNIVERSITY,

CHHATTISGARH)

The following research/scholar work is under Centre for Study of Contemporary Legal Issues. The copyright over this material is held by CALR as per the CALR Policy 2020. 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, if vested in the wrong hands, may run contrary to the very principles of a 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.

ORIGINALIST APPROACH

The originalist approach refers to the most obvious literary interpretation tool in the world. Interpreting any text first needs the interpreter to look into the exact meaning of the words used. The meaning given to words must be the one that prevailed at the time that the word was used in that particular concept. Additionally, the meaning given to a word must be the same meaning given to it by the legislator.

Although an originalist interpretation as a method dates back to the history of written text itself, it was framed as a theory of constitutional interpretation only in 1980s in America.1 In fact, the originalist approach gained more leeway in the United States than it ever did in India. Several vocal advocates of the originalist approach, such as Justice Antonin Scalia, have connected the doctrine directly to the conservative nature of legal interpretation rather than liberal philosophy. Therefore, while the use of the originalist theory is more prevalent in America, it is used more carefully in India.

When following the originalist theory of constitutional interpretation, there are two approaches that are chosen from:

1. The Theory of Original Intent

According to the theory of original intent, which was initially popular in the 1960s-1980s America, the actual intention of the drafters of the constitution must be considered in

1 Randy Barnett and Evan Bernick, The Letter and the Spirit: A Unified Theory of Originalism, Georgetown University Law Centre (2018) 107 Geo. L.J. 1, accessible at < https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=3018&context=facpub>. interpreting the meaning of legal text. In India, courts have historically referred to the Debates of the Constituent Assembly to arrive at the intention of the makers of the Constitution2, but their reliance on intent has remained minimal.

The original intent theory has not gained a lot of importance or credibility in India. This is because, the Constituent Assembly was a diverse political and social collection of legal minds. Each of them had varying intentions behind supporting or opposing each provision, as they each represented a different section of Indian society as it stood them. Obviously, this meant that no one member’s intention is properly encompassing of all the considerations that went into the mammoth task of constitution building. This makes the original intent of legislators an unreliable and incomplete tool for interpretation.

In AK Gopalan v. State of Madras,3 the Supreme Court observed that the speeches made by legislators in the course of debate over a Bill are “at best indicative of the subjective intent” of each speaker, but not of the unsaid consensus of the majority, each member of which was powered by a different consideration or motive. Naturally, the words of one or two speakers, even if it is that of the Chairperson himself, do not do justice to the intention of the Drafting Committee or the Constituent Assembly. That being said, the court in AK Gopalan did not adopt a flexible stance. It instead adopted the original public meaning doctrine described below.

In Keshavananda Bharathi v. State of Kerala,4 Chief Justice Sikri observed that in the course of the Constituent Assembly debates, many of the representatives spoke on several matters of their interest, but an equally large group remained silent on several issues despite disagreeing with those that spoke. The debates cannot account single-handedly for the intention of the legislators. For that matter, no one source, no matter how historically sound, can truly speak for the intention of the legislators. Therefore, any attempt to rely on the assumed intention of the drafters is an exercise in subjectivity and is riddled with the possibility of bias.

However, it would be incorrect to say that the theory of original intent is completely redundant in interpreting the Constitution. In SP Gupta v. President of India,5 it was held by the Supreme Court that the legislative history of a certain provision in the Constitution, while unadvisable for the complete and final interpretation of the meaning, can be used “in exceptional cases to denote the beginning of the legislative process resulting in a logical end”. At best, the

2 Supra note 2. 3 AK Gopalan v. State of Madras AIR 1950 SC 27. 4 Keshavananda Bharathi v. State of Kerala AIR 1973 SC 1461. 5 SP Gupta v. President of India AIR 1982 SC 149. legislative history can be used to contextualise and provide background to a certain provision. It can be used to reverse engineer the intention behind introducing a provision, so as to be used in the actual act of interpretation.

For instance, in Indra Sawhney v. Union of India,6 the meaning of the phrase “backward classes of citizens” in Article 16(4) was to be interpreted. The Supreme Court at the time held that it could refer on the speech of Dr. BR Ambedkar to “understand the context, background and objective behind its use”, without entirely relying on it.

The intention of the legislators is subjective, varying and impossible to accurately discern, as the drafters themselves had other political and economic motives. This makes the original intent a weak and inaccurate tool to entirely rely on for constitutional interpretation. It is useful however, in contextualising and identifying the core principles.

2. The Original Public Meaning

The original public meaning approach means that the literal meaning of the words be considered in identifying their meaning. The connotation given to words used in a provision must be the one used by the general public, at the time that the provision was written.

The Latin maxim “contemporanea expositio est fortissima in lege” literally translates to “the contemporary exposition is the strongest law”. This means that the meaning that the words used in a provision hold is the meaning that they held contemporaneous to the time of their drafting. In a way, this is also reflective of the intention of the legislators who put them down. It preserves the original meaning of the words used and adopts that interpretation. This approach to interpretation can be traced by to Justice Coke of England who, speaking with reference to the Magna Carta, stated that old Acts and laws should be “taken as the law was holden at the time when they were made”.

In India, the literal meaning of the words used in any statute have simply their plain meanings as they stood at the time of their drafting. For instance, in Ranjit Udeshi v. State of Maharashtra,7 the words of Section 292 of the Indian Penal Code were held to be perfectly plain and unambiguous by the Supreme Court. It therefore employed the literal meaning of the words. However, in constitutional interpretation, the literal meaning of the words may counteract the intended effect of an article.

6 Indra Sawhney v. Union of India AIR 1993 SC 477. 7 Ranjit Udeshi v. State of Maharashtra AIR 1965 SC 881. For instance, in Golak Nath v. State of Punjab,8 Article 368 remained unamended. As it then stood in 1968, the article in its heading only accounted for the “procedure” for amending the Constitution. The court extrapolated that since the heading did not specify that the article provided the “power” to amend, this power was vested in the legislature under Article 246 of the Constitution instead.

Another such example is the evolution of due process in India. In AK Gopalan, the court employed the original public meaning of the words “procedure established by law”, found in Article 21 of the Constitution. Interpreted literally, the article can be taken to mean that any person can be deprived of their life and personal liberty as long as it is done in a way sanctioned by statute or legislation. This trend of a literal and stringent interpretation of provisions changed with first, Rustom Cavajee Cooper v. Union of India9 (Bank Nationalisation Case), and ultimately, Maneka Gandhi v. Union of India10 (Passport Case), where the ambit of “procedure established by law” was made wider to include fairness and unarbitrary treatment as a minimum requirement for validity.

LIVING TREE APPROACH

The Living Tree approach refers to a method of Constitutional interpretation in which the interpreter looks beyond the exact words used in a provision and into the broad principles and values that the provision seeks to enshrine instead. By not restricting interpretation to the exact meaning or the intention of the words, and instead, applying the broad principle to each situation in a case-by-case fashion, the Living Tree approach allows a liberal view of the Constitution.

The approach has Canadian roots. In 1929, the Judicial Committee of the Privy Council (erstwhile highest court in Canada) made a landmark judgement that would affect all future cases of constitutional interpretation in the case of “Edwards v. Canada (‘Persons Case’)”11. It pertained to the constitutional right of Canadian women to contest in Senate elections. Only “persons”, as stated in the constitutional text, could contest in elections. The constitutional text of Canada was the British North American Act, 1867, which was enacted under the authority of the British Crown.

8 Golak Nath v. State of Punjab AIR 1967 SC 1643. 9 RC Cooper v. Union of India AIR 1970 SC 564. 10 Maneka Gandhi v. Union of India AIR 1978 SC 597. 11 Edwards v. Canada, (1930) A.C. 124. On appeal, the Judicial Committee implemented the Living Tree doctrine to rule that women were in fact ‘persons’ who had the right to contest in elections and assume political offices. In his explanation, Lord Sankey likened provisions of the Act to a growing tree, and sought to interpret the text of the Act accordingly. Lord Sankey described the text to be “a living tree capable of growth and expansion within its natural limits”.12 Subsequently titled the “Doctrine of Progressive Interpretation”, this approach derogates from a literal and rigid interpretation of constitutional text. It requires the evaluator to view the text in the context of relevant circumstances, balanced against the original intentions behind constitutional provisions.

From the preceding view of the originalist approach in India, it is apparent that the Living Tree approach is given great importance to in India. In fact, even considering from an originalist perspective, it is clear that the Constitution-makers intended that the Constitution remain flexible and organic. There is evidence for this in the Constitution itself. Article 246 divides all domains of legislation that were conceivable to the Assembly in 1950 into three lists, for the centre, the state and all concurrent subjects. List I in Schedule VII which holds the subjects designated to the Union government contains Entry 97 for residuary matters which reads: “Any other matter not enumerated in List II or List III including any tax not mentioned in either of those Lists”.

It can be adduced from this allotment of all residuary power to the union that the makers of the Constitution were entirely aware that new subjects will constantly emerge as the nation would grow and society would age. It was literally impossible for the drafters of the constitutional text to have complete foresight of every future possibility. Some elbow space had to be given to future governments. This is also clear from the allotment of power to the representatives of the people to make amendments to the Constitution in cases of dire need under Article 368. This shows that the makers of the Constitution also sought to give the constitution some room to grow and breathe.

Another consideration is the evolution of due process as described above. Through the Passport Case, the due process doctrine was interred into the framework of the Constitution. In AK Gopalan, the court considered the question of due process. It noticed that the Constituent Assembly had deliberately chosen the words “procedure established by law” over “due process of law”. It was citing this reason that the bench in AK Gopalan concluded on a narrow reading

12 Ibid at p. 135. of the phrase. Despite the fact that the exact words of the law only drew a narrow meaning of the phrase, the Supreme Court in the Passport Case, exercised judicial creativity and expanded the meaning of the phrase to include the basic principles of justice and fairness.

In Keshavananda, the Basic Structure of the Constitution was famously fructified, stating that no amendment of the Constitution could derogate from this structure. The Basic Structure is not a rigid or explicit set of rules or dicta. What it is, is a collection of Constitutional principles and values that are carefully enshrined by the text. The courts have in several cases designated multiple features of the Constitution to constitute Basic Structure. These include doctrines and concepts such as separation of powers, judicial review, fundamental rights, federalism etc.

However, as long as interpretations of the law do not directly conflict with the structure, they must be made in such a way that is broad and liberal. As Justice John Marshall of the US Supreme Court states in McCulloch v. Maryland13,

“It is in the nature of the Constitution that only its great outlines can be marked”.

It is impossible to engrave every tiny detail. Instead, the principles of the Constitution may be used as broad guidelines around which interpretations may be made. In this approach, an organic view of the Constitution is preferred rather than looking at it as rigid and unchanging.

Recent Past

It is not correct to state that the Originalist approach is redundant in the present times. It continues to remain the general approach to interpretation. However, the Indian judiciary has always shown a clear bias for the Living Tree Approach over the Originalist approach in cases pertaining to a deeper interpretation of constitutional provisions, especially in the recent past. Consider the case of Navtej Singh Johar v. Union of India14. The ambit of Article 21 was widened to construe sexual preference under “personal liberty”. At the time of Constitution making, ideas of sexuality and preference as they stand today did not have advocates, nor were they considered of particular importance. Social climate has changed infinitesimally between 1947 and 2021.

Initially in Suresh Kaushal v. Naz Foundation,15 the Supreme Court had not accepted the challenge to Section 377 IPC. It read into the ambit of Article 21 and Section 377 in a narrow,

13 McCulloch v. Maryland 17 US 316 (1819). 14 Navtej Singh Johar v. Union of India (2018) 10 SCC 1. 15 Suresh Kaushal v. Naz Foundation Civil Appeal No. 10972 of 2013 before the Supreme Court of India, decided on 11th December, 2013. originalist fashion. However, four years later, the Supreme Court in this case adopted a view that looks at the Constitution as capable of growth. The view is not that the Constitution is rigid, inflexible and impossible to alter. Instead, it is expanded to construe more rights of the individual.

Similarly, in Justice KS Puttaswamy v. Union of India,16 the right to privacy was included in the ambit of Article 21. Previously, in Kharak Singh v. State of Uttar Pradesh,17 the Supreme Court had ruled that the right to privacy was not a fundamental right, as it was not included in the Constitution explicitly. In Puttaswamy however, the court observed that the right to privacy was inherent to personal liberty. The expansion of the scope of Article 21 is a tell-tale sign of the general preference for the Living Tree Approach.

THE BALANCE

Neither the originalist approach, nor the living tree approach can be adopted entirely to the exclusion of the other. Any such imbalanced exclusion will hurt substantive due process as it will immobilise the spirit of the law. As Justice Dharmadhikari puts it: “The modern interpreter should attempt to read the provisions not only in their original social and linguistic context but in its modern context or in case some way that mediates between the two.”18

The Constitution of India calls for a separation of powers between the organs of the government. Although the exact phrase is nowhere used in the document, it is laid down through several intricate mechanisms to maintain a system of checks and balances for the separation. Accordingly, the legislature alone can make laws, the judiciary interprets it and the executive governs all that is not included in the other two. The judiciary must not encroach into the domain of the legislature, and create laws through judicial overreach. It can make logical extrapolations, but only within the limits drawn by the legislature. It is not allowed to fabricate the law or create extensions that were never intended by the legislators.

On the other hand, the legislature being a majoritarian body needs to be kept in check from disturbing the rights of minorities. The judiciary is entrusted with the broad and lofty principles of the Constitution, and keeps a check on the legislature from violating these. In interpreting the law, it must treat the words of the law as having actual, material impacts of

16 Justice KS Puttaswamy v. Union of India (2017) 1 SCC 10. 17 Kharak Singh v. State of Uttar Pradesh AIR 1963 SC 1295. 18 Justice DM Dharmadhikari, Principle of Constitutional Interpretation: Some Reflections, Eastern Book Company (2004) 4 SCC (Jour) 1, accessible at < http://www.ebc-india.com/lawyer/articles/2004v4a1.htm>. living, breathing individuals. A rigid and inflexible application will on be disastrous, like attempting to force lives into a set, unchangeable mould. Therefore, the extent of a court’s powers in terms of interpreting and constructing extrapolations to the law is a very delicate balancing act, that lies somewhere between the letter of and the spirit behind each enactment.

Researcher/Scholar Index

 Randy Barnett and Evan Bernick, The Letter and the Spirit: A Unified Theory of Originalism, Georgetown University Law Centre (2018) 107 Geo. L.J. 1, accessible at < https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=3018&context=facpub>.  Supra note 2.  AK Gopalan v. State of Madras AIR 1950 SC 27.  Keshavananda Bharathi v. State of Kerala AIR 1973 SC 1461.  SP Gupta v. President of India AIR 1982 SC 149.  Indra Sawhney v. Union of India AIR 1993 SC 477.  Ranjit Udeshi v. State of Maharashtra AIR 1965 SC 881.  Golak Nath v. State of Punjab AIR 1967 SC 1643.  RC Cooper v. Union of India AIR 1970 SC 564.  Maneka Gandhi v. Union of India AIR 1978 SC 597.  Edwards v. Canada, (1930) A.C. 124.  Ibid at p. 135.  McCulloch v. Maryland 17 US 316 (1819).  Navtej Singh Johar v. Union of India (2018) 10 SCC 1.  Suresh Kaushal v. Naz Foundation Civil Appeal No. 10972 of 2013 before the Supreme Court of India, decided on 11th December, 2013.  Justice KS Puttaswamy v. Union of India (2017) 1 SCC 10.  Kharak Singh v. State of Uttar Pradesh AIR 1963 SC 1295.  Justice DM Dharmadhikari, Principle of Constitutional Interpretation: Some Reflections, Eastern Book Company (2004) 4 SCC (Jour) 1, accessible at < http://www.ebc- india.com/lawyer/articles/2004v4a1.htm>.