DOCTRINE OF LIVING TREE

The Living Tree Doctrine was first recognized in the case of Edwards v. Canada (Attorney General) popularly known as Persons Case where Viscount Sankey stated that the British North American Act planted a living tree in the Constitution on Canada that is capable of growing and expanding in its natural limits. This came to be known as Doctrine of Progressive Interpretation. The living tree doctrine requires “large and liberal” interpretation of the constitution.

The ‘living tree’ doctrine — is very prominent in Canadian jurisprudence. It involves understanding the Constitution to be an evolving and organic instrument.

What matters the most is how the Constitution can be interpreted to contain rights in their broadest realm. The moral reading of the Constitution, propounded by Ronald Dworkin, also complements the living tree approach.

Dworkin says in Freedom’s Law that “according to the moral reading, these clauses must be understood in the way their language most naturally suggests: they refer to abstract moral principles and incorporate these by reference, as limits on government’s power.”

The ‘living tree’ approach being an alternative and a finer reading of the Constitution supports a broader interpretation of fundamental rights

Although in India, very rare expression was given to the Doctrine of Living Tree, but the framers of the Constitution made a flexible Constitution to cater to the needs of the changing times ,for which they included Article 368 which empowers the legislatures of the land to amend the Constitution.

Since the Supreme Court of India has been entrusted with the role of being the Custodian of the Constitution, it has therefore been able to provide the widest possible interpretation to various provisions of the Constitution.

The metaphor a “living constitution” does not necessarily capture the actual methodologies of our own constitutional interpretation, which remain grounded in constitutional text and whose sources include original understandings as well as later history and precedent.

The idea of a “living tree” may better embrace the multiple modalities-text, original intentions, structure and purpose, precedent and doctrine, values and ethos, prudential or consequentialist concerns of contemporary constitutional interpretation. It suggests that constitutional interpretation is constrained by the past, but not entirely.

Unlike the less tethered “living constitution,” it captures the idea of constraint, the role of text and original understanding in the roots of the constitutional tree and the role of precedent and new developments in its growth.

Australia is an interesting contrast to Canada because its judges, have not explicitly embraced the “living constitution” approach found in Canada & in some German and U.S. opinions.

The constitutional courts in other well-functioning democracies have not found it of critical importance either to limit their interpretive process to a narrow view of original intent nor to a small set of relatively constrained arguments.

Professor Goldsworthy, a proponent in Australia of what he has termed “moderate originalism,” comments, “interpretation everywhere is guided by similar considerations, including the ordinary or technical-legal meanings of words, evidence of their originally intended meaning or purpose, ‘structural’ or ‘underlying’ principles, judicial precedents, scholarly writings, comparative and international law, and contemporary understandings of justice and social utility.

The “living constitution” phrase does capture the idea of the Constitution as something that grows and is subject to contest and interpretation by subsequent generations.

In contrast to the American metaphor of a “living constitution,” or the Australian term, “living force,” the tree metaphor is one that draws attention to origins, to roots, as well as to the possibility of growth.

It implies a connection with interpretation in older decisions and a more constrained view of the choices open to later generations