Application of the rule of severability to Constitution amendment Act

Doctrine of Severability

The Severability doctrine is often referred to as the cornerstone of international commercial arbitration.[1] 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 become void and not the whole statute.

Indian constitution was developed over years and the makers tried to make the constitution as ideal as possible. It took 38 days for discussing part III of the constitution in the constituent assembly; it deals with fundamental rights of people from any arbitrary action of the State. According to Article 13(1)[2] of the constitution the pre-constitutional laws which are inconsistent with the fundamental rights will be declared unconstitutional to the extent of that contradiction be void. Hence, the article acts as a redeemer in resolving violation of fundamental rights.

The words “to the extent of the inconsistency or contravention”[3] explicitly makes it clear that when some of the provisions of a statute are ultra vires and unconstitutional on account of inconsistency with a fundamental right, only those specific provisions of the statutes in question shall be treated by the Courts as unconstitutional and void and not the whole statute itself. The rest of the part which is in consistency with the fundamental rights remains constitutional.

With the adoption of the Constitution of India in the year 1950, Part III in the form of fundamental rights also came into effect.

• The fundamental rights are a set of inherent rights which guarantees to every citizen of this country a life of dignified existence and holistic all-round development.
• Any law that infringes upon these rights is liable to be struck down by the courts.
• The question however arises as to what happens when only a portion of the impugned law is violative of fundamental rights, and it is in instances like these that the doctrine of severability is invoked.

The doctrine derives its validity from Article 13 which states,

“All laws in force in India, before the commencement of the Constitution, in so far as they are inconsistent with the provisions of fundamental rights shall to the extent of that inconsistency be void.”

• As an extension of Article 13, the doctrine states that when some particular provision of the statute infringes or violates the fundamental rights, but the provision is severable from the rest of the statute, and then only that provision will be declared void by the courts and not the entire statute.
• The doctrine essentially lays down that if violative and non-violative provisions are separated in a way that the non-violative provision can exist without the violative provision, then the non-violative provision will be upheld as valid and enforceable.

The doctrine of severability was even used in the case of Minerva Mills vs Union of India  where section 4 of 55 of the 42nd Amendment Act, 1976 was struck down for being beyond the amending power of the Parliament and then it had declared the rest of the Act as valid. Then in another case of Kihoto Hollohan Vs Zachillhu which is very famously known as the defection case. 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.

The doctrine of severability was considered by the supreme court of India in the case of R.M.D.C vs Union of India and the rules regarding severability was laid down in this case-

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 then 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.

It is the power and duty of the courts to declare law which is inconsistent with the constitution of India to be unconstitutional. The foundation of this power of judicial review as it was explained by a nine-judge bench is the theory that the constitution which is the fundamental law of the land, is the will of the people, while the statute is only the creation of the elected  representatives of the people, when therefore the will of the legislature as declared in a statute, stands in opposition to that of the people as declared in the Constitution, the will of the people must prevail.

Also, the power to annul the acts of the executive and the judiciary which violates the constitution is given by the Constitution itself in the judiciary. But, the same is not part of the legislature which is the creature of the constitution or one can say a law-making body. It is not correct to say that view of the legislators must prevail because they are answerable to the people. In determining the constitutionality of a provision the court will first question that whether the law is constitutional or not because there will be a possibility that it might be contravening a lot of articles that is enshrined in the constitution.

Origin of the Doctrine of Severability

The doctrine of severability originated rather in England. The question of doctrine of severability was first discussed in the case of Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Company Ltd.[4]. In this case the clause under contention was severable therefore only a part of it became void. The term “doctrine of severability” was not used in that time period; instead it was referred to as the “doctrine of blue pencil”. After this, the first case of severability was decided in USA in 1876 in the case United States v. Reese[5]

Later in the case of Champlin Refining Co. v. Corp. Commission of Oklahoma[6] first test for severability was laid down where the court held that only the unconstitutional part of the statute can be declared invalid.

In the year 2006, in the case of Ayotte v. Planned Parenthood of N. New Eng.[7] the court had expounded 3 principles of severability which are stated below:

1.   The court make an effort not to invalidate all the more a lawmaking body’s work than is needed
2.   The Court controls itself from “revising the state law to adjust it to established necessities”.
3.   The court shall use its power to remedy for circumventing the legislative intent.

Features of the doctrine of severability

In India, the doctrine of severability was first discussed in 1957 in the case of R.M.D.C. v. Union of India[8]. Legislative intent was thoroughly examined by the Hon’ble court in this case and it was said that legislative intent is the determination of whether the invalid part of the statute can be severed from the rest of the valid provisions of the act. If the valid and invalid parts are inseparable the whole statute would have to be struck down.[9] Even if it happens that the invalid portion is separate from the valid portion

Landmark judgements

 A.K GOPALAN V. STATE OF MADRAS – 1950[12]

In this case, the Preventive Detention Act, 1950[13]  was challenged in light of Article 19[14] and 21[15] of the Indian Constitution. The Supreme Court held that the whole Statute will not be struck off, but only the unconstitutional provisions were to be considered void and unconstitutional. Conclusively, Section 14 of the Act was severed and held void, the valid provisions remained intact.

THE STATE OF BOMBAY V. R.M.D. CHAMARBAUGWALA – 1957[16]

The Doctrine of Severability was applied in this case and the Court had laid down various rules and principles which are as follows-

1.   The intention of the legislature behind this is the determination of whether the invalid portion of the statute can be severed from the valid part.
2.   If both the valid and invalid parts cannot be separated from each other then it would lead to invalidity of the whole act.
3.   Even if it happens that the valid portion is separate from the invalid portion.
4.   The statute will be rejected in its entirety if the valid parts and the invalid parts are independent and absence of one will still have a cardinal effect on another.
5.   The subject matter of the sections and provisions has to be understood and ascertained  as a whole and the validity of provisions does not depend on whether provisions are enacted in the same section or not.
6.   The whole statute has to be struck down in cases where even after expunging the invalid parts the statute cannot be enforced without making modifications and alterations to the valid part of the act because it would amount to distortion of separation of powers because the judiciary would be intervening in the legislative functions.
7.   For the determination of legislative intent it is necessary to take into account the object of the legislation, the policy, history and other basic features of the statute.

MINERVA MILLS V. UNION OF INDIA – 1980[17], D.S. NAKARA & ORS. V. UNION OF INDIA – 1982[18]

Following the other judicial precedents the invalid part of the statute was declared to be unconstitutional and it was separated from rest of the provisions.

KIHOTO HOLLOHAN V. ZACHILLHU – 1992[19]

This case concerns paragraph 7 of the Tenth Schedule of the constitution which was inserted by the 52nd Amendment Act of 1985. The whole tenth schedule was not declared unconstitutional but only paragraph 7 was struck down by the court.

Effects on unconstitutional statute due to constitutional amendment

Earlier back in the days there were a lot of confusion upon this topic when there is a constitutional amendment and because of this there is some effects on the unconstitutional statute. The ‘doctrine of eclipse’ can be invoked in the case of pre-constitution law which was valid when it had been enacted. But, there was some inconsistency with the constitution which came into existence subsequently, if and when the shadow is removed, the pre-constitution law becomes free from all kinds of infirmity.

But the thing is that the principle cannot be invoked in the case of a post Constitution law which is void ab initio. In view of Article 13(2), the fundamental rights constitute express limitations upon the legislative power of a legislature making a law after the commencement of the Constitution and no distinction can be drawn between a post-Constitution law which is ultra-vires that is beyond the legislative competence of the legislature and a law which contravenes a fundamental right. It is that a post-Constitutional law which violates a fundamental right is void ab initio and no subsequent amendment of the Constitution can revive such still-born law, unless such amendment is retrospective.

Limitation of the doctrine

“Nothing in this Article shall apply to any amendment of this Constitution made under Article 368[21]” was inserted by the 24th Amendment Act[22] of the Indian Constitution of the year 1971. The amendment came into force and the main motive behind this amendment was explicitly to suppress the power of the Judiciary to keep a check on the powers of the Parliament in the law making process thus reducing the intervention of the judiciary. The amendment was upheld in the case of Kesavananda Bharati

Analysis

Doctrine of severability separates the valid and invalid parts of the statute. When a statute is declared unconstitutional by a court the Legislature cannot directly override that decision which is taken. Legislature can form a new law which is completely free from unconstitutionality. The Doctrine of Severability in the Indian Constitution is a pre-eminent principle to protect the fundamental rights of every citizen of the county.

During the pandemic, a lockdown was imposed in the country which completely restricted people’s movement, the cases reported in the beginning were very less but the whole country was forced to stay their place and it violated people’s rights enshrined in Articles 29 and 21 of the constitution. The doctrine of severability would apply in this lockdown protocol where the unconstitutional portions of the protocol would be severed and made void and the valid part would be continued.[24]

Conclusion

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. The decision regarding the invalidity of the provisions has to be made by the courts on the scheme of the act and accordingly adjudicate the question of declaring the validity of the act as a whole and various provisions of the act. It has been established that it protects every citizen from getting their Fundamental Rights violated. This doctrine provides the power of judicial review to the Supreme Court, which improves the interpretation of laws and acts. The doctrine is of utmost necessity as it protects the people from any arbitrary acts of the legislature which violate their basic fundamental rights.

The notion of severability paves the path for judicial review to be used. Individuals’ basic rights are infringed upon by bylaws that are invalidated by the courts through judicial review. When an individual claims that a piece of legislation is infringing on his or her basic rights and seeks judicial review of the decision, he or she has the burden of evidence for demonstrating how the law in question has harmed his or her rights.

In the Indian constitutional system, the Doctrine of Severability is a key fundamental and is the yardstick by which the legality of legislation is judged. It serves as a check on the legislature’s unrestricted powers, which, if left to its own devices, may go wild and infringe on citizens’ most basic rights.

Written By- Deepanjali Jangre

Lovely Professional University