THE DOCTRINE OF SEVERABILITY BY ROHIT PRADHAN

Author : Rohit Pradhan, Student at Symbiosis Law School, Hyderabad

Introduction

While the Constitution was being made, Our Constitution maker wanted it to be as ideal as possible. As a result, it took 38 days, to discuss the provisions of Part III while making of the Constitution. Part III exists to protect the ‘Rights’ and ‘Freedom’ of people from the arbitrary action of the State. Article 13 of the Constitution sums up the above-given analogy.[1] According to Article 13(1) states about pre-constitutional laws which are not consistent with the Fundamental Rights will be struck off.

Illustration:

For instance, there was an Employment Act during the year 1930; which states about the process of applying for Government Jobs. Let’s say that one of its provision debars any person of the minority community to apply for a job. This clause would clearly be inconsistent with the present Fundamental Rights that we have since the operation of the Constitution. Therefore, by applying Article 13(1) of the Indian Constitution; the said pre-constitutional laws would be held inoperative and void.

There are two doctrines under Article 13(1) which facilitate its operation; which is given below:

  1. Doctrine of Severability
  2. Doctrine of Eclipse

In the present article, we would be discussing about the Doctrine of Severability.

The doctrine of Severability

The doctrine of Severability is also known as the Doctrine of Separability. According to it, if a provision is inconsistent with the Fundamental Rights, the whole Statute will not be held void. It would be preferred to have only those inconsistent provisions to be considered void and not the whole statute.

If any provision of the Statute which is inconsistent to the Fundamental Right is cardinal to the functioning of Statute; i.e. without the presence of such disputed provision, the whole Statute would come to haphazard; then, instead of a particular provision, the whole statute would be deemed void.

An illustration of Doctrine of Severability

In layman language, it is more like a filter, through which Pre-Constitutional Laws goes through. Any provision of a Law which is inconsistent with Fundamental Right and its absence would not affect the cardinal functioning of the Statute; the filter will stop that provision and let the whole Statute pass through it. If such provision is cardinal to the functioning of the whole Statute; consequently the Filter will stop the whole Statute all together from passing off.

Origin of the Doctrine of Severability

The doctrine of severability is not an Indian invention, rather it was originated in England. It was originated in the case of Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Company Ltd., here the issue was related to a Trade clause. Here the disputed clause was severable and hence the whole instrument was upheld and a part of it was only removed. In this case, however, it was not exactly the doctrine of severability, it was named ‘doctrine of blue pencil’.

Champlin Refining Co. v. Corp. Commission of Oklahoma is US case where a company challenged several provisions of a Statute which was alleged to be inconsistent with the Constitution, in this case as well; Court recognized and used the Doctrine of Severability to adjudicate the matter.

In the year 2006, in the case of Ayotte v. Planned Parenthood of N. New Eng., Court laid down the three principles of severability, which are given below:

  1. The court tries not to nullify more of a legislature’s work than is necessary
  2. The Court restrains itself from “rewriting the state law to conform it to constitutional requirements”
  3. The touchstone for any decision about remedy is legislative intent.

Another case is Cardegna v. Buckeye Check Cashing where the Hon’ble Supreme Court held that if the contract is void ab initio; in such situation, the Court will not apply the ‘doctrine of severability’.

The doctrine of Severability – Landmark Judgments

A.K Gopalan v. State of Madras – 1950

The disputed Statute here was Prevention Detention Act, 1950 in the light of Article 19 and 21 of the Indian Constitution. The Supreme Court held that the whole Statute will not be struck off, but only the unconstitutional provision will be considered void. Conclusively, Section 14 of the Act was severed and held void, while the other provisions remain intact within the Statute.

State of Bombay v. F.N. Balsara – 1951

The disputed Statute here was Bombay Prohibition Act, where the unconstitutional provision was held void and inoperative while the other part of the Act was intact and the Statute was still be remaining in the force.

The State of Bombay v. R.M.D. Chamarbaugwala – 1957

The Court applied the Doctrine of Severability in this case and the Court laid down various rules regarding the said doctrine:

  1. The intention of the legislature behind this is the determine whether the invalid portion of the statute can be severed from the valid part or not.
  2. And if it happens that the both the valid and invalid parts can’t be separated from each other than the invalidity of the portion of the statute will result in invalidity of the whole act.
  3. Even if it happens that the invalid portion is separate from the valid portion.
  4. In the Statute, if the valid parts and the invalid parts are independent and absence of one will still have a cardinal effect on another, but the operation of the Statute could still be made then also it will be rejected in its entirety
  5. The severability of the valid and invalid provisions of a Statute does not depend on whether provisions are enacted in same section or different section, it is not the form but the substance of the matter that is material and that has to be ascertained on an examination of the Act as a whole and of the setting of the relevant provisions therein.
  6. If after the invalid portion is expunged from the Statute what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be struck down as void as otherwise it will amount to judicial legislation.
  7. In determining the legislative intent on the question of severability, it will be legitimate to take into account the history of legislation, its object, the title and preamble of it
Minerva Mills v. Union of India – 1980

In this case as well, the whole Statute was left intact and only disputed provisions which were proved to be in inconsistent with the Fundamental Rights were held void.

D.S. Nakara & Ors. v. Union of India – 1982

Doctrine of Severability was used in this case as well, the whole Statute was left valid and only the disputed provision which were proved to be in incognisant with the Fundamental Rights were removed from it.

Kihoto Hollohan v. Zachillhu – 1992

In this case the paragraph 7 of the Tenth Schedule which was first inserted by the 52nd Amendment Act of 1985 was declared as unconstitutional because it had violated the provisions under Article 368(2). But the whole part was not declared unconstitutional. So, the rest of the Tenth Schedule excluding paragraph 7 was upheld by the Constitution.

Features of Doctrine of Severability

Applicability

Article 13(1) is applicable toward any such Laws which seems to be inconsistent with the Fundamental Right. It restrains the Legislatures to enact any Law which contravenes the Fundamental Rights of the people. It enables High Courts and Supreme Court to review any Statute which deems to violate the Fundamental Rights.

Nature of the disputed provision

The disputed provision shall be proved to be inconsistent with the Fundamental Right in order to held it to be void. Unless the same is not proven, the said doctrine would not applicable.

Severability

The disputed provision if proved to be inconsistent with the Fundamental Rights, the whole Statute would not be considered void. Court will only unenforced that particular provision and leave the whole Statute intact and enforced.

However, if the disputed provision is not separable from the whole Statute, i.e. either the whole Statute becomes inoperable or its efficiency goes down with the absence of disputed provision; Court will haphazard the whole Statute.

The burden of the Proof

The person who brings the matter to the Court and alleges that the said Statute violates the Fundamental Right, it is on him to prove it by virtue of the rationale laid down in the case of Chiranjit Lal Chowdhury v. The Union of India & Ors. that his Fundamental Rights have been violated. He can also prove that he could be the subject of immediate danger as a result of any Statute or law which is coming into force.

What happens if the supreme court declares any Law as Unconstitutional

Article 141 of the Constitution lays down that the decision of the Supreme Court of India will be binding on all the Courts which is within Indian territory. The effect of which is that once Supreme Court declares any law as unconstitutional, it would act as a Judgment in rem against all the people who are seeking relief in any Court of India against the said Law.

No person who seek to establish the said act as unconstitutional, would not need to again prove it; it will be deemed to be unconstitutional, as Supreme Court already has established that. If Supreme Court once has invalidated the Act partially then, the Court will deem to presume the invalidated part as it has bever existed before.

Conclusion

Doctrine of Severability is a principle which came from England, evolved in various International rulings and was recognized in India as a part and parcel of Article 13 of the Indian Constitution. It has been established that it protects every citizen from getting their Fundamental Rights violated. The said doctrine is valid in both Pre-Constitutional and Post-Constitutional Laws.

What makes this doctrine very appealing is that, it protects the Whole statute from the repercussions of having any faulty provisions. If any provision of law is violative of Fundamental Right and its presence has no cardinal or substantial effect in the operation of the Statute, then under this Doctrine; Court may held that particular provision to be the faulty one and void, while the Whole Statute will still be operative.

What is the doctrine of severability?

The doctrine of severability is also known as the Doctrine of Separability. According to it, if a provision is inconsistent with the Fundamental Rights, the whole Statute will not be held void. It would be preferred to have only those inconsistent provisions to be considered void and not the whole statute.

What is the doctrine of eclipse?

Any law which is inconsistent with the Fundamental Rights will not be valid. It would not be dead totally but will get overshadowed by the Fundamental Rights. This shadow will get removed only if, such law is subjected to any Amendment and changes; so that its inconsistency with the Fundamental Rights get rectified.

What is the rule of severability?

Severability which is also know as “salvatorius” in Latin is a provision that allows the remainder of legislation or contract to remain effective; even if one or more of its provision is inconsistent with the Fundamental Rights.

References

[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.

Note : This post first appeared here.

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