The Doctrine of Severability

In this article the Doctrine of Severability has been explained in great details with the help of case laws and interpretation of scholarly material.

It is not the whole Act which would be held invalid by being inconsistent with Part III of the Constitution, but only such provisions of it which are violative of the fundamental rights

-Doctrine of Severability

Introduction

During the development of the Constitution 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 becomes 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. Only those inconsistent provisions becomes 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.

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.

The words “to the extent of the inconsistency or contravention” make it clear that when some of the provisions of a statute become unconstitutional on account of inconsistency with a fundamental right, only the repugnant provisions of the law in question shall be treated by the Courts as void, and not the whole statute

Origin of the Doctrine of Severability

The doctrine of severability didn’t orginate in India; rather it finds its roots in England. 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 only a part of it became void. In this case, however, it was not exactly the doctrine of severability; it was ‘doctrine of blue pencil’.

Further Evolution

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:

Rules

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.

Does an unconstitutional law remain operative as regards non-citizens?

In Keshavan’s case, it was observed, as regards Pre-Constitution laws, coming under clause (1) of Article 13, that such law became void on the commencement of the Constitution if it was inconsistent with a fundamental right; but it did not become void for all persons or for all purposes. The invalidity was to the extent that it was inconsistent with a fundamental right. If the fundamental right was such that it did not belong to a non-citizen [e.g., a right under Article 19(1)], the invalidity of the law would ensure to the benefit of citizens only. In the result, even though inconsistent with a fundamental right, such law would survive in its operation against non-citizens.

In C.R.H. Ready money Ltd v State of Bombay, vital distinction between a law bad on the ground of being ultra vires of the legislature and a law invalid as contravening the fundamental right was dealt with. In the first case, the law was a nullity, was bad from inception and nothing could be done to cure that law. In the second case, that is, where a law is passed by a competent legislature, but which contravened the fundamental rights, such a law may still be good in case of those fundamental rights which were guaranteed only to citizens, and bad as regards non- citizens. It would not be true to say that the position of a law passed by a legislature with competence, but which violated the fundamental rights was the same.

Is any law excluded from Article 13(2) ?

It is now settled that any law which is passed by Parliament or a State Legislature by virtue of the powers conferred by a Articles 245-246, is subject to Article 13, thus, including—

• (i)A taxing statute
• (ii)A law the making of which is provided for by some specific provisions of the Constitution, e.g., Articles 105(3); 194(3); 309.

On the other hand, the Supreme Court has held that where a law is made in exercise of a power conferred by a specific Article of the Constitution other than Articles 245-246, such law must not be construed as being included in Article 13(2); for, to do so would render nugatory the independent provision of the Constitution, which stands on an equal footing with Article 13. It is on this reasoning that the Court has excluded a Proclamation of Emergency under Articles 358-359 from the purview of the Fundamental Rights, overruling at earlier decisions of the Supreme Court.

The Constitution itself, however, specifically excludes certain laws from the purview of Article 13, namely, laws which fall under Articles 31A-31C, and the 9th Schedule, which, it should be noted, have been inserted in the Constitution by the Amendment Acts.

Constitution Amending Act

There has been a controversy as to whether an amendment of the Constitution made in the manner provided for under Article 368, must have to conform to the requirements of Article 13(2), as a “law” as defined in clause (3) of Article 13.

• Shankari Prasad v UOI, and Sajjan Singh v State of Rajasthan, the Supreme Court held that an Amendment Act, passed in exercise of the power conferred by Article 368, is not a “law” within the meaning of Article 13(2). But this view was overruled by the majority in Golak Nath’scase.
• But the majority decision in Golak Nath’s case was superseded by the Constitution (24th Amendment) Act, 1971, by inserting clause (4) in Article 13 and clause (1) in Article 368, post, as a result of which an amendment of the Constitution, passed in accordance with Article 368, will not be “law” within the meaning of Article 13 and the validity of a Constitution Amendment Act shall not be open to question on the ground that it takes away or affects a fundamental right. This Amendment has been held to be valid and the decision in Golak Nath’s case has been overruled by the later Full Bench of the Supreme Court in Keshavananda’s case.
• The question was sought to be put at rest by the Constitution (42nd Amendment) Act, 1976, which had inserted clause (4) in Article 368, post, saying that “no amendment of this Constitution (including the provisions of Pt III) … shall be called in question in any Court on any ground”; but in Minerva Mills, the Supreme Court held that section 55 of the 42nd Amendment Act which inserted these clauses was void, as it purported to destroy a basic feature of the Constitution.

By a number of subsequent decisions, it is now settled that—

• Even an Act for the amendment of the Constitution, passed under Article 368, is not immune from the purview of judicial review. Its validity may be questioned on any of the following grounds—
  • (i)That it is procedurally ultra vires, i.e., it has been passed in contravention of the procedural requirements of Article 368 (para 85).
  • (ii)Whether it has destroyed or damaged the “basic structure” of the Constitution (para 86).

The invalidity on the ground of violating the basic features of the Constitution will, however, apply to Amendment Acts passed subsequent to 24 April 73, because the doctrine of basic features was a judicial innovation which was first propounded by the Supreme Court in Keshavananda’s case, on 24 April 73.

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.

Author: Rohit Pradhan

[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.