DOCTRINE OF SEVERABILITY

By- Vinesh Chaudhary, BA.LLB(H)

NALSAR, Hyderabad

INTRODUCTION

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.

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 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 .[10]

SEVERABILITY

According to this doctrine once it is proved that the disputed provisions violate fundamental rights the whole statue cannot be struck down. The court will enforce the valid provisions of the statute and declare the invalid part to be unconstitutional. However, if the disputed provision is not separable from the whole Statute because of it becoming inoperable due to the absence of the particular provision the whole statute will be struck down.

APPLICATION

Article 13(1) of Indian constitution talks about the doctrine of severability and it is applicable toward any laws which seem to be inconsistent with the fundamental rights. It keeps a check on the Legislature and restrains it to enact any Law which is in violation of the fundamental rights. It gives power to the courts to review the statute which is in contention for violating fundamental rights of people.

DISPUTED PROVISION

The provision which is said to be in derogation of the fundamental rights shall be proved to be in violation of those rights in order to hold the provisions invalid. The doctrine of severability cannot be applied until it has been proven that the provisions are in violation of fundamental rights.  

BURDEN OF PROOF

The person who challenges the statute on the grounds that it is contravening to the fundamental rights guaranteed by the constitution has the burden to show that it contravenes the rights. By virtue of the rationale established in the case of Chiranjit Lal Chowdhury v. The Union of India And Others[11]  the person who has attacked a particular statute on these grounds has to prove that the statute violates fundamental rights.  

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.

The Doctrine of Severability v. Doctrine of Eclipse

According to the doctrine of severability, if any of the provisions in a statute is in violation of the fundamental rights then instead of repealing the whole act, only the provisions found to be in violation will become void. However, if such provision is the core provision of the act, the whole act will be struck down then under the doctrine. This doctrine is applicable to both pre and post constitutional laws.

The doctrine of eclipse is applicable only to the pre-constitutional laws which become inconsistent. This doctrine can be used to make the laws under contention dormant but cannot strike them down since that can be done only by the body making the laws. These laws which become dormant can later be revived if the existing inconsistency between fundamental rights and the law is removed. In simple terms, an eclipse means when one thing overshadows one other thing. Thus, when a law tries to violate or gets inconsistent with a fundamental right, this doctrine is applied to overshadow the inconsistent law by the fundamental rights guaranteed by the constitution.[20]

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[23]

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 the unconstitutionality. The Doctrine of Severability in Indian Constitution is a pre-eminent principle to protect the fundamental rights of every citizen of the county.

During the pandemic 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 at their places and it violated people’s right enshrined in Article 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 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.[25] The doctrine is of utmost necessity as it protects the people from any arbitrary acts of the legislature which violate the basic fundamental rights.

 

 

 

REFERENCES

[1] Graves, J.M and Davydan, Y. (2011), International Arbitration and International Commercial Law: Synergy, Convergence and Evolution. Touro Law Centre.

[2] Art 13(1), Constitution of India

[3] Mahendra Lal Jaini vs The State Of Uttar Pradesh And … on 7 November, 1962 (indiankanoon.org).

[4] Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Company Ltd., 1984 [AC] 535.

[5] United States v. Reese, 92 U.S. 214.

[6] Champlin Refining Co. v. Corp. Commission of Oklahoma, 286 U.S. 210 (1932).

[7] Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320.

[8] R.M.D.C. v. Union of India, AIR 1957 S.C. 628.

[9] https://lawbhoomi.com/analysis-of-doctrine-of-severability-under-constitutional-law/.

[10] LegalClouds-Doctrine of Severability.

[11] Chiranjit Lal Chowdhury v. The Union of India and Others, 1950 SCR 869.

[12] A.K. Gopalan v. State of Madras, AIR 1950 SC 27.

[13] Preventive Detention (Amendment) Act, 1950 (50 of 1950).

[14] Art. 19, Constitution of India.

[15] Art. 21, Constitution of India.

[16] The State of Bombay v. R. M. D. Chamarbaugwala, 1957 SCR 874.

[17] Minerva Mills Ltd. & Ors vs Union of India & Ors, 1981 SCR (1) 206.

[18] D.S. Nakara & Others vs Union of India, 1983 SCR (2) 165.

[19] Kihoto Hollohan v. Zachillhu And Others,.  1992 SCR (1) 686.

[20] Fundamental Rights and Doctrines of Eclipse, Severability and Waiver | Lexpeeps.

[21] Art. 368, Constitution of India.

[22] THE CONSTITUTION (Twenty-fourth Amendment) Act, 1971.

[23] Kesavananda Bharati Sripadagalvaru v State of Kerala, (1973) 4 SCC 225.

[24] Constitutional Law: Doctrine of Severability – Lexlife India.

[25] THE DOCTRINE OF SEVERABILITY BY ROHIT PRADHAN (katcheri.in). 

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