Doctrine of Severability

Introduction

The doctrine of severability is also known as the doctrine of separability, and it protects the fundamental rights of the citizens. It embodies the idea that an invalid or unconstitutional provision should not taint an otherwise valid law or constitution, thus serving as a safeguard against judicial overreach and ensuring that the legal system continues to function effectively.

What is the Origin of the Doctrine of Severability?

• The Doctrine of Severability finds its roots in England in the case of Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Company Ltd. where the issue was related to a Trade clause.

What is the Doctrine of Severability?

• It is derived from Article 13 of the Constitution of India, 1950 (COI).
• This doctrine means that if an offending provision can be separated from that which is constitutional then only that part which is offending is to be declared as void and not the entire statute.
• It provides that where only a part of the law is inconsistent with or contravenes the fundamental right, it is only that part which shall be void under Article 13 of the COI and not the entire law.
• The Courts apply this doctrine to separate the valid portion of the law from the invalid portion.

What is Article 13 of the COI?

• Article 13 of the COI deals with the laws inconsistent with or in derogation of the fundamental rights. It states that -

(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention of this clause shall, to the extent of the contravention, be void.

(3) In this article, unless the context otherwise requires,—

(a) “law” includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;

(b) “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368.

What are the Rules in Relation to Doctrine of Severability?

• In the case of RMDC v. Union of India (1957), the Supreme Court established the following rules or principles about the doctrine of severability:
  • The legislature's intent is the decisive factor in evaluating whether the legitimate sections of a legislation may be separated from the invalid parts. If the legislature had realized that the rest of the Act was illegal, it would have enacted the valid section.
  • If the lawful and invalid provisions are so intricately intertwined that they cannot be separated, then the invalidity of a component of the Act must result in the Act's whole invalidity.
  • On the other hand, if they are sufficiently different and separate and after striking out the invalid, what remains is a full code in and of itself, it will be upheld even if the rest is no longer enforceable.
  • Even though the lawful provisions are different and distinct from the invalid provisions, if they all constitute part of a single scheme that is meant to be operational as a whole, the invalidity of one portion will result in the failure of the entire scheme.
  • The separability of a statute's valid and invalid provisions is not determined by whether the law is enacted in the same section or in separate sections; what matters is the substance of the matter, which must be determined by examining the act as a whole and the setting of the relevant provisions therein.
  • If the remaining section of the act cannot be enforced without making changes and adjustments, the entire statute must be declared void, since it would otherwise constitute judicial legislation.
  • It will be reasonable to consider the history of legislation, its goal, title, and preamble in evaluating legislative intent on the matter of separability.

What is the Limitation of Doctrine of Severability?

• If the valid and invalid part are so closely mixed up with each other that it cannot be separated, then the whole law or act will be held invalid.

What are the Landmark Cases of Doctrine of Severability?

• A.K. Gopalan v. State of Madras (1950):
  • The Supreme Court held Section 14 of the Prevention Detention Act, 1950 void while stating that the whole statute cannot be struck down. It was also stated in case of inconsistency to the Constitution, only the disputed provision of the Act will be void and not the whole of it, and every attempt should be made to save as much as possible of the act.
• State of Bombay v. F.N. Balsara (1951):
  • The eight sections of the Bombay Prohibition Act were declared invalid, and the Supreme Court said that the portion which was invalid to the extent of fundamental rights was separable from the rest of the act.