Basis of Doctrine
This Doctrine of Severability
is also known as the Doctrine of Separability
The word to the extent of the inconsistency or contravention
makes it clear
that when some of the provision of a statue when some of the provisions of a
statute becomes unconstitutional on account of inconsistency with fundamental
rights, only to the repugnant provision of the law in question shall be treated
by the courts as void, and not the whole statute.
The Doctrine of Severability
means that when some particular provision of a statute offends or is against a
constitutional limitation, but that provision is severable from the rest of the
statute, only that offending provision will be declared void by the Court and
not the entire statute.
The doctrine of severability says that if good and bad provisions are joined
together by using the word 'and'
' and the enforcement of good provision
is not made dependent on the enforcement of the bad one that is the good
provision can be enforced even if the bad one cannot or had not existed, the two
provisions are severable and the good one will be upheld as valid and given
effect to. On the other hand, if there is one provision which is capable of
being used for a legal purpose as well as for illegal one, it is invalid and
cannot be allowed to be used even for the legal purpose.
Fundamental rights are the quintessential factor for a dignified living and
holistic development of an individual. Fundamental rights are enshrined in Part
III of the Constitution of India that applies to every citizen of India.
Inclusion of Fundamental Rights in the Constitution of India is as important as
to enforce the provisions when it is violated. If a portion of law is found to
be unconstitutional, it is the rationale to question whether the particular law
or a portion of it becomes void. Article 13 of the Constitution of India speaks
of the 'Doctrine of Severability' that acts as a saviour in combating violation
of fundamental rights.
Doctrine of Severability
Article 13 of Constitution of India reads as under:
All laws enforce in India, before the commencement of Constitution of India, in
so far as they are inconsistent with the provisions of fundamental rights shall
to the extent of that inconsistency be void.
The pressing aspect of the aforementioned clause must be explained with clarity.
When a particular part of a statute bounce beyond the fundamental rights of the
Constitution of India, the very part of the statute/Act would be declared void
provided that, the unconstitutional part of the statute/law is separable. But,
if the unconstitutional part of the statute is inseparable, then the entire
statue would be held void. Hence, severability finds its significant place while
invalidating an unconstitutional portion of a statute.
The 'Doctrine of Severability' in Article 13 of the Constitution of India can
be understood in two dimensions:
- Article 13 (1) validates all Pre-Constitutional Law and, thereby,
declares that all Pre-Constitutional laws in force before the commencement
of the Constitution of India shall be void, if they are inconsistent with
the fundamental rights.
- Article 13 (2) mandates the State that it shall not make any law which
takes away or abridges the fundamental rights conferred in Part III of
Constitution of India and any law contraventions this clause shall be void.
Evolution of the Doctrine
The Doctrine of Severability
is not a principle that was found after
the Constitution of India rather; it has been in existence in the Judicial
system of England for long. For the first time, the Doctrine of Severability
was applied to decide the case Nordenfelt Vs. Maxim Nordenfelt Guns & Ammunition Company
, 1894 AC 535].
In House of Lords, the Plaintiff �a specialised manufacturer
in armaments, decided to sell his business to the Defendant, with the mutual
agreement that, hereafter the Plaintiff would not indulge in any production of
guns and other weapons anywhere in the world and the Plaintiff would not compete
with the Defendant in any way for 25 years.
But it was held that, though the conditions of the contract were at the
interests of the parties, the restraint of trade is considered to be void ab
initio in the Common Law. Subsequently, the Court observed that the contract is
against the reasonable scope of public policy. The interrogation was about the
severability i.e., whether, the unreasonable clauses of the contract could be
fragmented and still make the contract valid.
Since the unreasonable portion of
the contract (Restraint of Trade) is severable, the Court employed the doctrine
of blue pencil (similar to the Doctrine of Severability
) and approved the
first part of the agreement that the Plaintiff would not make guns or
ammunition anywhere in the world and, thereby, permitted the Plaintiff to trade
without any restraint.
Later in cases viz [Champlin Refining Co. Vs Corp. Commissioner of Oklahoma
286 US 210 1932 (1932)] and [Ayotte Vs Planned Parenthood of N. New England
546 U.S. 320 (2006)], the Court discussed the 'Doctrine of Severability' in
detail and propounded three principles of rationality to sever the
problematic portions of an Act and to approve the rest of it.
The three inter-related principles are:
- The Court tries not to nullify more of a legislature's work than is necessary
- Mindful that its constitutional mandate and institutional competence
are limited, the Court restrains itself from rewriting the State law
to confirm it to constitutional requirements.
- The touchstone for any decision about remedy is legislative intent
In the fullness of the time, the Doctrine of Severability
was found to be
included in the Constitution of many countries like United States of America,
Australia, Malaysia and India as well. The Constitution of India had picked up
the best features from other Constitutions � the fundamental rights from the
United States of America and the 'Doctrine of Severability' from the United
Kingdom. By adopting the Doctrine of Severability, the Constitution of India
upholds the principle of Natural Justice
Salient Features of the Doctrine
Widens the Scope for Judicial Review on Unconstitutional Parts of any Law
The Doctrine of Severability
through the Article 13 of the Constitution of
India opens the doors for the Judicial Review on any law or part of it that is
found unconstitutional or violative of fundamental rights.
It enables the
Supreme Court and High Court to interpret laws and to review the
pre-constitutional and existing laws through a contemporary approach of law.
Amidst the sparking argument concerning the legitimacy of Judicial intervention
in constitutional matters, Judicial Review has been extended in many cases so as
to protect the fundamental rights that are guaranteed in Part III of the
Constitution of India.
The Parliament and State Legislatures are restrained from
enacting laws that may curtail the fundamental rights guaranteed for the
citizens of the country. If a law is partially unconstitutional, it would be
deemed ineffective until an amendment is made.
The Doctrine of Severability Vs. Doctrine of Eclipse
While making a constitutional amendment on the unconstitutional part of a
statute, it is significant to take into account both 'Doctrine of Severability'
and 'Doctrine of Eclipse'. The latter can be applied in the case of
pre-constitutional laws which were valid at the time of enactment.
But, if there
is some incompatibility in the law concerning the present Constitution, it would
be overshadowed by the Fundamental Right and would remain dormant, but is not
dead anyway. If and when an amendment is made thereby removing the shadow, the
pre-constitutional law becomes free from all kinds of susceptibility.
The Doctrine of Eclipse
cannot be invoked in the case of a post Constitution
law whereas; Doctrine of Severability
makes the law void ab initio. Owing to
Article 13 (2) of the Constitution of India, limitations are laid upon the
legislature to adhere to the fundamental rights of the Constitution of India.
Burden of Proof
If the particular decision of the Court contravenes with the fundamental
rights of the Constitution, then the burden of proof falls upon the
person who questions and challenges decisions of the Court. In the case
Lal Chowdhary Vs Union of India & Ors
, AIR 1951 SC 41], held that if the
constitutionality of the Act is challenged in any circumstances, the Complainant
must prove that some injury was sustained by him as a result of the statute or
law coming into force.
Persons entitled to enforce the Doctrine of Severability
A person, who does not possess any fundamental rights under the Constitution of
India, cannot challenge any law on the grounds of incompatibility with
fundamental rights, when there is a constitutional violation that affects the
Corporation, or the shareholders are entitled to indict the validity of the
unconstitutional part of a law.
Here, the question of fact is that, whether the
right of the Corporation or the shareholders have been affected by the law. If
the fundamental rights of the Company have been impugned by a Statute in a way
that, it also affects the interest of the concerned shareholders, the
shareholders can question the constitutionality of the Statute.
Limitation in Enforcement of the Doctrine
The 24th Amendment of the Constitution of India by Ms Indira Gandhi during1971
added the clause (4) of Article 13, that says:
Nothing in this Article shall
apply to any amendment of this Constitution made under Article 368.
purpose of the amendment is to annul the Supreme Court's power that oversees the
enactments of Parliament from the point of view of Doctrine of Severability
Hence, the Part III of the Constitution of India that covers fundamental rights
was brought into the realm of amendment procedure and Judicial intervention of
those amendments was forbidden. The amendment earned sharp criticism from
jurist, media fraternity and members of the Constituent Assembly. The stringent
nature of the amendment paved a way for a new provision which obligated the
President to give his assent for every Constitution Amendment Bill.
R.M.D.C. Vs. Union of India
, AIR 1957 SC 628] is considered to be one of the
most important cases on the Doctrine of Severability
. In this case, the
Supreme Court observed that:
The doctrine of severability rests, as will presently be shown, on a
presumed intention of the legislature that if a part of a statute turns
out to be void, that should not affect the validity of the rest of it,
and that that intention is to be ascertained from the terms of the
statute. It is the true nature of the subject-matter of the legislation
that is the determining factor, and while a classification made in the
statute might go far to support a conclusion in favour of severability,
the absence of it does not necessarily preclude it.
The Supreme Court further said that:
When a statute is in part void, it will be enforced as regards the rest,
if that is severable from what is invalid.
In the above-mentioned case, it was also said that:
Another significant canon of determination of constitutionality is that the
Courts would be reluctant to declare a law invalid or ultra vires on account of
unconstitutionality. The Courts would accept an interpretation, which would be
in favour of constitutionality rather than the one which would render the law
The Court can resort to reading down a law in order to save it from
being rendered unconstitutional. But while doing so, it cannot change
the essence of the law and create a new law which in its opinion is more
The acid test of Doctrine of Severability
was applied in the following Judgement with the view to safe guard the fundamental rights of the citizen of
- In A. K. Gopalan Vs. State of Madras, AIR 1950 SC 27, the Petitioner- a
communist leader was detained under the Preventive Detention Act, 1950 and he
challenged the preventive detention made on the ground that is infringement of
his fundamental rights under Article 19 & 21 of Indian Constitution of Indi.
The Supreme Court held that only the unconstitutional provision of
the challenged Act will be void according the Doctrine of Severability. Section 14 of the
Preventive Detention Act was declared unconstitutional and void. The Section 14
was severed and every other sections of the Preventive Detention Act, 1950
remained constitutionally valid.
- State of Bombay & Anr. Vs. F. N. Balsar, AIR 1951 SC 318, the
unconstitutional portions of the Bombay Prohibition Act were declared void by
the Supreme Court as the portion of invalid was separable from the rest of the
- Kihoto Hollohan Vs. Zachilhu & Ors., 1992 SCC Supl. (2) 651� Popularly
known as the defection case, the Supreme Court declared that Para 7 of the Tenth
Schedule of Indian Constitution through the 52nd Amendment Act, 1985 as
unconstitutional portion for violation the provision under article 368 (2). It
upheld the validity of the rest of the Tenth Schedule.
- Minerva Mills & Ors. Vs. Union of India & Ors., AIR 1980
SC 1789 � The Supreme Court struck down the Section 4 & 55 of the
42nd Amendment Act (1976) as it was found ultra vires beyond the amending power of the Parliament. It
declares the rest of the Act as valid.
The term Severability Clause
has been defied under Black's Law Dictionary to
mean a provision that keeps the remaining provisions of a contract or statute in
force, if any portion of that contract or statute is judicially declared void,
unenforceable, or unconstitutional or to mean a Judicial standard for deciding
whether to invalidate the whole contract or only the offending words. Under this
standard, only the offending words are invalidated if it would be possible to
delete them simply by running the blue-pencil through them, as opposed to
changing, adding or re-arranging words.
The Severability Clause
finds its basis from the Blue-Pencil,
or Blue-Pencil Test, which means to delete the invalid
(unenforceable) words of a part of statute to keep the other parts
of such provisions validated, and thus, enforceable. Resultantly,
the valid part of a provision is enforced without the need to
invalidate the complete provision solely owing to a certain invalid
part. The term Blue-Pencil
popularly means to censor or to make cuts such as
manuscript, film or other words.
- What is the Supreme Court to do with the rest of a statute
when it finds one provision unconstitutional?
That is the question a long-out-of-the-limelight doctrine � the
severability doctrine � tries to answer.
- Should the Supreme Court hold only the one provision invalid
and leave the rest of the statute intact?
- Should it invalidate provisions especially linked to the
offending one as well?
- Or should it strike down the entire statute?
Despite its relative obscurity, the doctrine is
consequential. On the one hand, invalidating an entire statute
for one faulty piece is the most invasive of remedies; on the
other, the Supreme Court is wary of altering statute by excising
parts of them. The severability doctrine takes a side. In the
words of Chief Justice John Roberts of Supreme Court of United
States this term in Seila Law Vs Consumer Financial Protection Bureau,
591 U. S (more)140 S. Ct.
2183], it's a scalpel rather than a bulldozer.
The Doctrine of Severability
in Constitution of India is a pre-eminent
principle to protect the fundamental rights of every citizen of the county. It
is an acid test to validate any law against the Fundamental Rights that enacted
either in the present Parliament and Legislative Assembly or in the
pre-constitutional period. This doctrine has an all-time relevance in every
legal aspect of the governance of a Welfare State.
Dinesh Singh Chauhan, Advocate
- High Court of Judicature, Jammu