DOCTRINE OF SEVERABILITY

This article is written by Mithravindha.R, BA.LL.B(Hons.),II year, SOEL,TNDALU during her internship at LeDroit India.

KEYWORDS:          

Doctrine, unconstitutional, pre constitutional, fundamental rights, separate, void

ABSTRACT:

Some laws made by legislation can violate the fundamental rights of Indviduals and are unconstitutional. Hence there should be some mechanism to strike down these laws. Our constitution provides this mechanism through  article 13, there are many doctrines in which Doctrine of severability is one. According to this doctrine any part of pre constitutional which violates the fundamental right can be strike down and declared as void. Similarly other parts continue to be in force unless it is not unconstitutional . In this article we will see more about doctrine of severability, its characteristics, its applicability and judgements based on this doctrine. 

INTRODUCTION:

Doctrine of severability is also known as Doctrine of separability. If any provision of a statute is violating the fundamental right and is unconstitutional, then that provision is alone separated from other provisions and declared as void. Here the remaining part of the statute remains functioning. It is based on the concept that if there are two provisions which is connected by and/or , in which, one is good and the other is bad, according to this doctrine , the good provision can be enforced even if the bad provision is removed which means they are separable.^[1]

DOCTRINE OF SEVERABILITY:

According to Article 13(1) if any provision of a statute is inconsistent with fundamental right then it is declared to be void. However this is not retrospective instead prospective in nature i.e it doesn’t apply to the laws enacted before the commencement of constitution, however the situation changed after the case of Keshav Madhav Menon v. State of Bombay where validity of a pre constitutional law was questioned, it is from this case, Court interpreted Article 13 and doctrines like doctrine of eclipse and doctrine of severability evolved . According to the doctrine of severability, if any provision is unconstitutional as per 13(1), the impugned provision alone is separated from other provisions if court finds that separating that provision will not damage or change the nature and objective of the statute.

The impugned provision – All provisions =     Remaining non- impugned ^[2]provisions

ORIGIN:

Doctrine of severability is not a new concept, this actually came from the case of Nordenfelt v. Maxim Nordenfelt guns and ammunition company Ltd. Where for the first time the court struck down the violative provision of a contract and made other parts of the contract valid. In case of Ayotte v. Planned Parenthood of New England, three principles of the doctrine were given i.e court should take maximum effort in not invalidating all Law making body’s work, revise state laws according to necessities, remedy for circumventing legislative intent. In the case of Champlin Refining Co. v. Corp. Commission of Oklahoma where SC held that if one part is unconstitutional it does not mean entire statute should be struck down. This doctrine find its origin from the blue pencil theory which means to remove or delete the invalid parts of a statute and keep the remaining parts.

In India, the concept of severability was introduced in Article 13 of Constitution, the first judgement on this doctrine was R.M.D.C v. Union of India where three principles and legislative intent of the doctrine was introduced.^[3]

CHARACTERSTICS OF THE DOCTRINE:

• The scope of Judicial Review is increased
• The faulty provision should be inconsistent with the fundamental rights
• Burden of proof lies on the person who have challenged the validity of a statute, i.e. the appellant
• Doctrine of eclipse is not applicable to post constitutional laws whereas doctrine of severability is applicable also to post constitutional law which makes the law void ab intio.
• If a law is partially unconstitutional then it is considered to be inactive until a amendment is made to separate the impugned provision.
• Parliament and state legislature are prevented from making laws which curtail the fundamental rights of a individual with help of this doctrine

Who can enforce?

Only persons who are entitled to fundamental rights in our constitution can challenge law for its inconsistency with the fundamental rights. Corporation and shareholders can also challenge the validity of a statute if they feel their fundamental right has been violated.

APPLICATION:

It keeps a check on the enactment of the legislature. It prevents the legislature from enacting laws which violates the fundamental rights listed in the constitution. It gives power to the court to review the impugned provision of a statute and strike it down if it is unconstitutional.

LIMITATION OF THE DOCTRINE:

After 24^th amendment in the constitution , article 13 says that it cannot be extended to amendment made under Article 368 which means that judicial intervention on that amendments is forbidden, this limited the supreme court in  supervising the enactments of parliament by using doctrine of severability.^[4]

CASE LAWS:

A.K.Gopalan v.State of Madras

Here the Preventive Detention Act was challenged alleging that it violated Article 19 and Article 21 of constitution. Court held that only the violating provisions alone be removed and entire statute will not be struck down. Thereby Section 14 of the act was removed.

State of Bombay & Anr. Vs. F. N. Balsar :

In this case only the unconstitutional portions of Bombay Prohibition Act  was removed. Remaining portions were not struck down

Kihotoo Hollohan V. Zachilhu & ors.

The court held para 7 of Tenth Schedule of Constitution inserted through 52^nd Amendment unconstitutional and removed only that para, however the tenth schedule remained valid.

Minerva Mills &ors. v. Union of India

Supreme Court struck down Section 4 and 55 of 42^nd amendment as it is ultra vires. However rest of the act was declared valid.

CONCLUSION

Doctrine of severability is essential to prevent valid portions of an act from getting void due to invalidity of one provision. It is the court which decided the validity of a challenged statute based on its interpretation of statute and constitution. It protects citizens from their fundamental rights getting violated. It also prevents and protects people from the arbitrary actions of the parliament.