Law and You > Constitutional Law > Doctrine of Severability
The Doctrine of severability is also known as the doctrine of separability. This doctrine was devised by the Supreme Court to resolve the problem of the validity of laws which are declared as unconstitutional. When a part of the law is declared as unconstitutional, then a question arises whether the whole of the law is to be declared void or only that part of the law which is unconstitutional should be declared as void.
The doctrine of severability is necessary to protect the validity of the act as a whole without which an entire act would become void due to the invalidity of one provision of the act. According to the doctrine of severability, a law is void only “to the extent of the inconsistency or contravention” with the relevant Fundamental Right according to Article 13 of the Indian Constitution. It means that an Act may not be void as a whole, only a part of it may be void and if that part is severable from the rest which is valid, and then the rest may continue to stand and remain operative. The Act will then be read as if the invalid portion was not there. If, however, it is not possible to separate the valid from the invalid portion, then the whole of the statute will have to go.
Let us understand the doctrine of severability with an analogy. Imagine a piece of fruit, say an apple. Now imagine that a small portion of the apple has gone bad due to some form of physical damage, in such a case one would proceed to severe that portion off while preserving the undamaged part for consumption. If whole apple or most part of it is damaged it will not be consumed. In such case it will be thrown in the dustbin.
Basis of Doctrine:
- Article 13 is the basis of the doctrine of severability. It makes the following two provision in this regard: Article 13(1) deals with the pre-constitution laws and declares that all such laws are void to the extent to which they are inconsistent with the Fundamental Rights.
- Article 13(2) deals with the post-constitution laws and prohibits the state from making a law which takes away or abridges the Fundamental Rights and any such law is avoid to the extent of the contravention.
Landmark Judgement:
R.M.D.C. v. Union of India, 1957 AIR SC 628, case the validity of Section 2(d) of the Prize Competitions Act (1955), which included competition of gambling as well as those involving skill, was challenged. According to Article 19(1)(g), the Parliament can restrict prize competitions only of a gambling nature but not those involving skill. The Court struck down those provisions related to competitions involving skill. The Court held that where the provisions of the act are so mixed together i.e the invalid portion and the valid portion such that it would not possible to separate them, then the act as a whole would be deemed to be void.
During this case the Supreme Court laid down following rules regarding the question of severability:
- The intention of the legislature is the determining factor in determining whether the valid part of a statute are severable from the invalid parts.
- If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from another, then the invalidity of a portion must result in the invalidity of the Act in its entirety.
- If the valid and invalid provisions are so distinct and separate that after striking out what is invalid what remains is itself a complete code independent of the rest, then it will be upheld notwithstanding that the rest had become unenforceable.
- Even when the provisions which are valid, are distinct and separate from those which are invalid if they form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole.
- Likewise when the valid and invalid parts of a Statute are independent and do not form part of a Scheme but what is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of legislature, then also it will be rejected in its entirety.
- The severability of the valid and invalid provisions of a Statute does not depend on whether provisions are enacted in the 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.
- 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.
- 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
Other Case Laws:
A. K. Gopalan v. State of Madras, AIR 1950 SC 27 where section 14 of prevention detention act was found out to be in violation of Article 14 of the constitution. It was held by the Apex court that it is section 14 of the act which is to be struck down not the act as a whole. It was also held that the omission of section 14 of the act will not change the object of the act and hence it is severable.
In D.S. Nakara v. Union of India, AIR 1983 SC 130 where the Act remained valid while the invalid portion of it was declared invalid because it was severable from the rest of the Act.
In State of Bombay v. F.N. Balsara AIR 1951 SC 318, it was held that the provisions of the Bombay Prohibition Act, 1949 which were declared as void did not affect the validity of the entire Act and therefore there was no necessity for declaring the entire statute as invalid.
In Minerva Mills V… Union of India, 1980 AIR SC 1789, The Court struck down sections 4 and 55 of the 42nd Amendment Act (1976) for being beyond the amending power of the Parliament. It declared the rest of the Act as valid.
In Kihoto Hollohan V. Zachilhu, 1992 SCR (1) 686 (Popularly known as the Defection case) the Court declared paragraph 7 of the Tenth Schedule (which was inserted by the 52nd Amendment Act, 1985) as unconstitutional for violating the provision under Article 368(2). It upheld the rest of the Tenth Schedule.