Doctrine of Severability

    Article 13 of the Indian Constitution deals with 4 concepts relating to Fundamental Rights. Fundamental Rights have existed since the time our present constitution was formed, i.e. 26th January 1950. Fundamental rights became operative from and on this date only. Article 13(1) deals with Pre-Constitutional laws. There have been many different laws  or doctrine that have been present before the constitution came into being, and remained in impact even after that. Article 13 provides that those laws (existing prior to the constitution) which can be consistent with fundamental rights will remain valid. Let us understand with the help of an example-There was the Education Act of 1930, which had many clauses which dealt with subjects like the appointment of chairman, what will be the amount of funds that will be allocated, what would be the age group of the children, etc. Among other things, there was this one clause which said, kids from a certain caste shall not be admitted in the school. Now since 1950, this clause stands in contravention of the  basic rights. While making use of clause 1 within the same example, we are able to say that since this clause is against the fundamental rights, it might become void.

    Meaning of the Doctrine 

    The doctrine of Severability is likewise referred to as the doctrine of separability. This doctrine became devised through the Supreme Court to solve the trouble of validity of legal guidelines that are declared as unconstitutional. When part of the regulation is recognised as unconstitutional, then a query arises, whether or not the entire regulation is to be declared void or only a part of the regulation that is unconstitutional must be declared as void. 

    According to the doctrine of Severability, if the offending provisions of the law can be separated from that provision which is constitutional, then there is no such need to declare the entire regulation as void, the only part that needs to be declared void should be the one which is offending.

    In other words, if the invalid part of the law can be separated from the rest, then the relaxation can also additionally remain valid and operative. 

    However, when it isn’t feasible to split the valid part of the regulation from the invalid part, the entire regulation can be declared void.

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    Basis 

    Article 13 concretises the idea of doctrine of Severability. It makes the subsequent provision on this regard:

    • Article 13(1) offers the pre-constitutional laws and pronounces that such legal guidelines are void to the quantity to which they are inconsistent with the Fundamental Rights.
    • Article 13(2) offers with the post-constitution laws and prohibits the nation from creating a regulation which takes away or abridges the Fundamental Rights and such a regulation is void to the extent of the contravention.

    From the above, it is clear that only that portion of a law which violates the Fundamental Rights can be declared as void and not the whole of it 

    The Supreme Court has explained the doctrine of Severability in the following ways:

    “The question whether or not a statute that is void partially is to be treated as void or whether or not it is capable of enforcement as to that part which is a valid one, this can arise only with reference to laws enacted by bodies which do not possess unlimited powers of legislation, as,  for example, the legislature in a Federal Union.”

    The limitation on their powers can be of two kinds: the subject enumerated within the Lists in the Seventh Schedule withinside the Indian Constitution; or

    It can be on the subject of the character of the legislation which they might enact in recognition of subjects assigned to them, as, for example, on the subject of the fundamental rights assured in Part III of the Constitution.

    When a legislature whose authority is difficult to limit aforesaid enacts a regulation that is entirely in extra of its powers, it is far completely void and should be absolutely ignored. But in which the legislation falls within the place allotted to it and in Part outside it, it is undoubtedly void as to the latter; however, does it on that account turn out to be always void in its entirety? The solution to this query should rely on whether or not what is valid will be separated from what is invalid, and that may be a query which needs to be determined through the Court on a consideration of the provision of the Act.”

    The Proposition of the Doctrine 

    1. The Supreme Court has laid down the following proposition (rules) regarding the doctrine of Severability. In figuring out whether or not the valid party of a statue is separable from the invalid components thereof, it’s far the intention of the legislature that this is the figuring out factor. The check to be implemented is whether or not the legislature could have enacted the valid component if it had recognized that the remainder of the statute became invalid.
    2. If the valid and invalid provisions are so inextricably mixed up that they can’t be separated from one another, then the invalidity of an element should bring about the invalidity of the Act in its entirety.
    3. Even while the provisions that are valid are distinct and become independent from those that are invalid, if all of them form part of a single scheme that is meant to be operative as a whole, then additionally the invalidity of a component will bring about the failure. 
    4. Likewise, while the valid and invalid component of a statute are independent and do now no longer form part of a scheme however what is left after omitting the invalid element is so thin and truncated as to in substances completely different from what it became while it emerged out of the legislature, then additionally it will be rejected in its entirety.
    5. The separability of the valid and invalid provisions of a statute does now no longer rely on whether or not the regulation is enacted within the identical phase or in completely different section; it isn’t the form, however, the substance of the problem is material, and that must be ascertained on an examination of the Act as a whole and of the setting of the applicable provision therein. 
    6. If after the invalid element is expunged from the statute what stays can’t be enforced without making changes and adjustments therein, then the entire of it should be struck down as void, as in any other case it’s going to amount to judicial legislation.
    7. In figuring out the legislative purpose at the query of separability, it will be valid to take into consideration the records of the legislation, its object and identity and therefore the preamble to it. 

    Important case laws

    A.K. Gopalan v. State of Madras[1]: It strikes down section 14 of the Preventive Detention Act (1950) on the ground that it violated the fundamental right under Article 22 of the Constitution. It declared the remaining of the Act as valid and effective. 

    Section 14 of the Preventive Detention Act, 1950, contravenes the provisions of Article 22 of the Constitution into date because it prohibits someone detained from disclosing to the Court the grounds wherein a detention order has been made or the consulting made by him in opposition to the order of detention.

    State of Bombay v. F.N. Balsara[2]: It declared few sections of the Bombay Prohibition Act (1949) as invalid on the ground of infringement of the fundamental rights. It held that the void provisions did no longer have an effect on the validity of the entire Act. 

    R.M.D.C v. Union of India[3]: It held that the provisions of the Prize Competition Act (1955) were severable and struck down the provisions associated with competition related to the skill. In this case, the validity of section 2(d) of the Act, which blanketed competition of gambling in addition to the ones related to skill, became challenged. According to Article 19(1)(g), the Parliament can limit the prize of the competition which is of a gambling nature. 

    Minerva Mills v. Union of India[4]: It struck down sections 4 and 55 of the 42nd Amendment Act (1976) for being beyond the amending power of the Parliament. It declared the remaining of the Act as valid.

    Kihoto Hollohan v. Zachilhu[5]: This case is popularly called the Defection case. It declared paragraph 7 of the 10th Schedule (which was inserted by the 52nd Amendment Act, 1985) as unconstitutional for violating the provisions under Article 368(2). It upheld the rest of the 10th Schedule.

    Conclusion

    Severability describes a selected provision in law or piece of legislation, which states that if a number of terms are held to be illegal or otherwise unenforceable, the rest should be still applicable. This doctrine means if an unoffending provision is circulated from depth then only that part which is offending to be declared as void and not the whole statute.

    Endnotes:

    [1] 1950 AIR SC 27.

    [2] AIR 1951 SC 318.

    [3] 1957 AIR 628.

    [4] 1980 AIR 1789.

    [5] 1992 SCR (1) 686.


    BY SHANTI GUPTA | INDIAN INSTITUTE OF LEGAL STUDIES

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