The Doctrine of Severability

The Doctrine of Severability

Part III of the Constitution of India provides fundamental rights to the citizens of India. These Fundamental Rights are a set of rights given to the citizens of India which guarantee a blissful lifestyle and equality to every citizen of India. But sometimes, it happens that some laws violate these fundamental rights. According to the constitution of India, no law can violate fundamental rights. Hence, the framers of the Constitution of India provided the doctrine of severability which helps in the separation of unconstitutional laws and the rest laws remain in force.

Severability meaning

In law, the term separation is used under the provision of a contract or piece of legislation. Severability means to separate something illegal from a legal thing so that the legal thing remains in force.

Let us understand the principle of separation with an example. Suppose you have a basket full of apples to sell, in which 5 apples are bad and the rest are good. So now, according to the doctrine of severability, you will remove these 5 bad apples from the basket and the rest of the apples are good and ready to sell.

In this case, you didn’t remove the entire basket of apples, but you just remove the bad apples so that the good apples could be sold.

The doctrine of severability

The doctrine of severability which is also known as the doctrine of separability drives validity from article 13 of the Indian constitution.

The doctrine of severability means that when a particular part of a provision of a statute becomes unconstitutional, but that part can be separate from the rest of the statute, only that part will be declared void by the court and not the entire statute. The rest of the law will continue to apply. The reason why the full statute is not declared void is that the court protects a statute as much as possible so that the citizens of India can take advantage of the law which is not contrary to the fundamental rights given under the Constitution of India.

The language of Article 13 is difficult to understand so let’s make it easy to understand. Article 13 states that:

  • When a particular provision of a law is violating the fundamental rights of the constitution, and this provision can be separated from the rest of the law, then, in that case, the court will declare that provision void, not the entire statute.
  • It also stipulates that if the violative and non-violative provisions can be distinguished in such a way that the non-violative provision may still exist without the aid of the violative provision, then the non-violative provision shall be deemed valid and enforceable by law.

Article 13 of the Constitution of India provides certain conditions relating to the doctrine of severability which are:

  • There should be a provision that is contrary to fundamental rights
  • The provision should be severable from the rest of the statute.
  • It should have no effect on the rest of the law.

If these three conditions are fulfilled in the provision of any law which violates the fundamental rights, then that part of the law that has been declared void by the court and the rest of the law shall continue to apply.

According to the doctrine of severability, if good and bad provisions are clubbed together in a statute using the words “and” or “or“, even if the enforcement of the good provision can be carried out without the backing of the bad provision, then the court can declare the bad provision as void and the good provision as valid.

The law does not validate that provision that is capable of being used for legal purposes as well as for illegal purposes.

Rules related to the doctrine of severability

In the case of RMDC vs The State of Bombay, the court laid down some rules or principles related to the doctrine of severability that are following:

  • To find out whether the valid provision of a statute can be separated from the invalid part, the intention of the makers of that statute is the determining factor.
  • If the valid and non-valid provisions of a statute cannot be separated from each other, in that case, the entire statute will become invalid.
  • After the removal of a non-valid provision, if the valid provision stands independently, then it will be upheld by the court. Otherwise, it will become unenforceable.
  • In a condition where both valid and invalid provisions of a statute were intended to be a part of the same scheme, the whole scheme will be invalidated. It will not matter whether the valid and invalid provisions were separable or not.
  • There may be cases where valid and invalid provisions of a statute are separable from each other and they are not part of the same scheme. But still, the renewal of the invalid provision leaves the rest scheme truncated, then also the scheme will be invalidated.
  • The doctrine of severability can be done by reading the whole institute, with no specific provision for part of the statute.
  • The best way to find the intention of the legislation is to add the provision in the statute, it will be legitimate to find it from the history, objective and preamble of that statute.

Can the legislature override the statute which is declared unconstitutional?

The legislature cannot override a statute that is declared unconstitutional by the court of law. The legislature has the power to make new laws related to that unconstitutional statute which is free from unconstitutionality.

Effects of the proclamation of emergency  on a statute that is declared unconstitutional

Article 352 of the constitution of India deals with the proclamation of emergency. The Indian constitution makes the legislature free from the limitation at the time of emergency. But it does not operate to validate a law that is declared unconstitutional.

The burden of proof in the doctrine of severability

The person who alleged that a statute is contravening or contrary, the burden of proof lies to that person. The person can challenge a statute or law only if our rights are directly affected by that statute or law.

Effects of a law that is declared unconstitutional

According to article 141 of the Indian constitution, the supreme court of India binds all the courts in the territory of India. It means if any law or statute is declared unconstitutional by the supreme court of India then that law or statute shall be considered unconstitutional by all the law courts in India.

The same rule is applied when the supreme court of India declares a provision of the statute unconstitutional with the help of the doctrine of severability. After this declaration, the court will read the statute in such a manner that the part which is declared invalid never existed before.

Case laws related to the doctrine

  • In the case of AK Gopalan vs State of Madras the apex court held that section 14 of the prevention detection was constitutional because it was contrary to article 14 of the constitution of India. The court held that the omission of section 14 of the act will not change the object of the whole Act, so section 14 of the preventive detention act is severable and the rest act will remain enforceable.
  • In another case of the state of Bombay Vs FN Balsara, AIR 1951 SC 318, the court held that the provisions of the Bombay prohibition act 1949, which were declared as void and unconstitutional did not affect the validity and objectives of the entire act. Therefore, there was no need for declaring the entire act invalid.
  • In the case of Minerva Mills vs union of India, 1980 in this case, the supreme court of India struck down sections 4 and 55 of the 42nd amendment act 1976. The court gave the reason that these sections were beyond the amending power of the parliament. The other act remained as valid.

Conclusion

The doctrine of severability works as a filter that removes the impurities of a statute. There were many cases and debates done on the question of if the amendment Act is subject to judicial review or not. But in the end, this question has been settled and the amendment Act can be subjected to judicial review if it is impairing the basic structure of the constitution of India. 

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