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Doctrine Of Severability: A Scalpel Rather Than A Bulldozer

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' or 'or' 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:

  1. 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.
  2. 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 Ltd, 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:

  1. The Court tries not to nullify more of a legislature's work than is necessary
  2. 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.
  3. 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 titled Chiranjit 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.

The very 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.

Landmark Judgments
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 unconstitutional.

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 desirable.

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 India.
  • 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 act.
  • 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.

Written By: Dinesh Singh Chauhan, Advocate - High Court of Judicature, Jammu
Email: [email protected], [email protected]

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