This article is an excerpt from the judgment of Justice Nagarathna in Property Owner Association v. State of Maharashtra (2024).
Emile Durkheim, the French sociologist who formally established the academic discipline of Sociology and is commonly cited as one of the principal architects of modern Social Science, 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. It involves an understanding of the Constitution as an evolving and organic instrument. For the living tree theorists, it matters little what the intentions were at the time of Constitution making.
What matters the most is how the Constitution can be interpreted to contain rights in their broadest realm. The doctrine suggests that the past plays a critical but non-exclusive role in determining the contents of the Constitution. Although the rights and freedoms under a Constitution may be rooted in the past and historically determined, they cannot be considered to be frozen by particular historical anomalies.
As per Woodrow Wilson, former President of the United States of America, “a Constitution must of necessity be a vehicle of life; that its substance is the thought and habit of the nation and as such it must grow and develop as the life of the nation changes.”
In India, the living tree doctrine has been largely inspired from Canadian jurisprudence. Its origin in the judicial record seems to be in a 1938 Federal Court judgment where the then Governor-General of India referred a question to the Court relating to the constitutionality of the Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938. While expanding upon what canons of interpretation and construction the Court would use to answer the question, Sir Maurice Gwyer CJ stated that “a Constitution of government is a living and organic thing, which of all instruments has the greatest claim to be construed ut res magis valeat quam pereat (in a manner in which it becomes operative rather than null).”
The Court urged that in the case of federal constitutions, “a broad and liberal spirit should inspire those whose duty it is to interpret it” but they were not “free to stretch or pervert the language of the enactment to further any interest.”
Subsequently, in the landmark judgment of State of West Bengal vs. Anwar Ali Sarkar, AIR 1952 SC 75 (“Anwar Ali Sarkar”), Supreme Court struck down the West Bengal Special Courts Act, 1950, holding that it violated Article 14 of the Constitution. Vivian Bose J. in a separate judgment stated that provisions of the Constitution must not be interpreted “without regard to the background out of which they arose.” Justice Bose articulated that the Constitution must be interpreted progressively to “give life to a great nation and order its being,” and not in a manner as would relaunch “discarded tools.”
While being conscious that people who forget their history are condemned to repeat it, he emphasised that a Constitution must be interpreted having regard not only to the historical circumstances under which it emerged, but also in a manner as would “mould the future as well as guide the present.”
It may be apposite to quote a paragraph from Justice Bose’s erudite judgment, which brings out many elements embodied in the living tree doctrine:
“I cannot blot out their history and omit from consideration the brooding spirit of the times. They are not just dull, lifeless words static and hide-bound as in some mummified manuscript, but, living flames intended to give life to a great nation and order its being, tongues of dynamic fire, potent to mould the future as well as guide the present. The Constitution must, in my judgment, be left elastic enough to meet from time to time the altering conditions of a changing world with its shifting emphasis and differing needs.”
Almost two decades later, in Kesavananda Bharati, the Court utilised the living metaphor to decide upon the amending powers of the Parliament. The Court held that the Parliament could amend the Constitution even to abridge fundamental rights, “as long as the basic structure of the Constitution is retained.”
In reaching this conclusion, the Court referred to multiple iterations of the understanding of the living constitution. Therefore, justification for solidifying the constituent power of the Parliament to ensure flexibility of the Constitution, was found in the living Constitution metaphor.
In Supreme Court Advocates-On-Record Association vs. Union of India, (1993) 4 SCC 441 (“Supreme Court Advocates On-Record Association”), Supreme Court applied this metaphor while discussing the independence of judiciary. This Court, in addition to calling it an “ever evolving organic document,” applied the living tree metaphor to the Indian Constitution as follows:
“The Framers of the Constitution planted in India a living tree capable of growth and expansion within its natural limits. It lives and breathes and is capable of growing to keep pace with the growth of the country and its people.”
Further, in Zee Telefilms Ltd. vs. Union of India, AIR 2005 SC 2677 (“Zee Telefilms”), the living Constitution metaphor was employed in adopting an expansive understanding of the term “State” as appearing under Article 12 of the Constitution. It was held that the term “other authorities” was included under Article 12 at the time of framing of the Constitution with a limited objective of granting judicial review of actions of such authorities which are created under the Statute and which discharge State functions. The schism between the private and the public had become obscure with time and the Court must take note of such changes.
Therefore, the Court concluded that the position of various institutions in the continuum between the private and the public need to be revaluated having regard to the organic blurring of margins of the public-private dichotomy. It was laid down that the Constitution should be interpreted in light of our whole experience and not merely in that of what was the state of law at the commencement of the Constitution. That the Constitution was a “living organism” capable of change, with changing circumstances.
In further expansion of fundamental rights, Supreme Court in Justice K.S. Puttaswamy (Retd.) vs. Union of India, (2017) 10 SCC 1 (“Puttaswamy”), held that privacy was essential to the exercise of most fundamental rights and hence, must itself be regarded as a fundamental right. While engaging in such an expansive interpretation of the constitutional provisions, the Court described the Constitution as a “living instrument” that was resilient enough to ensure its continued relevance. The Court opined that the Constitution is a “sacred living document susceptible to appropriate interpretation of its provisions based on changing needs.”
Supreme Court referred to a “brooding spirit” with several qualities which inspired the Constituent Assembly and was given the corporeal form of the Constitution of India. The living tree metaphor is also evident in several other decisions of this Court, such as, National Legal Services Authority vs. Union of India, (2014) 5 SCC 438; Joseph Shine vs. Union of India, (2019) 3 SCC 39; Navtej Johar vs. Union of India, (2018) 10 SCC 1; Anuj Garg vs. Hotel Association of India, AIR 2008 SC 63; Secretary, Ministry of Defence vs. Babita Punia, (2020) 7 SCC 469; Lt. Colonol Nitisha & Others vs. Union of India, AIR 2021 SC 1797.
Thus, we see that throughout the years, Supreme Court has applied the living metaphor in the adjudication of a wide spectrum of controversies. While toying with different variants of the living Constitution metaphor, the Court has consistently emphasised on two of the principal elements of the living tree doctrine- the original understanding in the roots of the constitutional tree; and the possibility of growth and development, within its natural limits. Such is the balance between the two contesting theories of originalism and the living Constitution.
Dr. Jack M. Balkin, a Professor at Yale Law School, contends that the basic idea of constitutional interpretation is that interpreters must be faithful to the original meaning of the constitutional text and to the principles that underlie the text. But, he suggests, fidelity to the original meaning does not require fidelity to the original expected application. Therefore, original expected application is merely evidence of how to apply text and principle. He explains, “Each generation is charged with the obligation to flesh out and implement text and principle in their own time. They do this through building political institutions, passing legislation, and creating precedents, both judicial and no judicial.
Thus, the method of text and principle is a version of framework originalism and it views living constitutionalism as a process of permissible constitutional construction.” 4.12 I find that this idea is most useful in interpreting Directive Principles of State Policy. Evidently, with great foresight, the framers of our Constitution did not limit either themselves or succeeding generations to any one economic school of thought.
In fact, the speeches of Dr. Ambedkar in the Constituent Assembly evince that while the economic philosophy adopted by the Government may swiftly pass from one generation to another, the ideal of economic democracy finds firm place within our Constitution. There is no strict economic diktat in the Constitution for the Parliament to follow; however, the Directive Principles act as the principles or goals that the Parliament must regard on its path to progress.
Krishna Iyer, J. adjudicated on the construction of “material resources of the community” in the backdrop of a constitutional, economic and social culture that gave primacy to the State over the individual in a broad-sweeping manner. As a matter of fact, the 42nd Amendment had, inter alia, inserted the word “Socialist” into the Preamble to the Constitution. By abundant caution, I must observe that “Socialist” is starkly distinguished from “Socialism”, which is an economic policy of organising society and the political economy of the country.
Regardless, on a conspectus understanding of all contributing factors such as the discussions in Constituent Assembly and the tide of the times that found in the broad house of economic democracy a legitimate State policy, can we castigate former judges and allege them with “disservice” only for reaching a particular interpretive outcome?