Doctrine of Severability or also known as doctrine of separability is a legal
provision which separates laws which are inconsistent with the fundamental
rights thus It protects our Fundamental Rights.
The Doctrine of Severability is mainly based on article 13 of the Indian
According to article 13:
All laws in force in the territory of India immediately before the commencement
of this Constitution, in so far as they are inconsistent with the provisions of
this Part, shall, to the extent of such inconsistency, be void.
The State shall not make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of this clause shall,
to the extent of the contravention, be void.
However, only the provisions of the legislation or act that are incompatible
with the Fundamental Rights would be declared unlawful. In simple words, you
must apply a filter to the concerned laws to see whether they protect
fundamental rights. All of the laws that make it through this screening are
valid. The legislation that are unable to pass must be separated.
This is what
the Doctrine of severability is. Simply said, the notion of separation involves
filtering and checking all acts. All laws that protect fundamental rights will
be upheld. Those that are in violation of fundamental rights will be declared
null and void. However, this can only be done if the part of the law that is in
conflict with it, is completely isolated from the rest of the legislation. If
the lawful and invalid parts are so closely intertwined that they cannot be
distinguished, the entire legislation or act is declared invalid.
The idea of Severability was used for the first time in the case Nordenfelt vs
Maxim Nordenfelt Guns and Ammunition Company Ltd,1876. The plaintiff, an arms
specialist, agreed to sell his business to the defendant on the condition that
the plaintiff would never longer produce guns or other weapons for 25 years.
The contract, according to the court, violated public policy within a reasonable
range. But the question was about severability, that whether the contract's
irrational sections may be removed while the rest of the contract remained
legitimate. Because the contract's unreasonable portion (Restraint of Trade) is
severable, the court applied the blue pencil doctrine (similar to the Doctrine
of Severability) and approved to strike out the first part of the agreement that
" the plaintiff would not make guns or ammunition anywhere in the world "
allowing the plaintiff to trade freely.
Important Cases In India
In A.K.Gopalan vs State of Madras
(1950) AIR SC 27 ,which is a important and
landmark judgement regarding the doctrine of severability. Section 14 of the
Preventive Detention Act was challenged in this case. If a person is detained
under this act, it was not allowed to reveal the reason for his imprisonment in
court, according to Section 14.. When the doctrine of severability is applied
and this Act is filtered out and only section 14 of the Preventive Detention Act
is incompatible with fundamental rights as in article 22 of the indian
constitution. Hence , in the judgement only one section of the act was repealed,
while the rest of the act continued to be in effect.
In R.M.D.C. v. Union of India
(1957) AIR SC 628, The applicant has filed a
petition under Article 32 of the constitution, alleging that the respondents
have violated his right according to article 19(2)by imposing a restriction on
their ability to conduct business.
The respondents argued that Section 2(d) of
the Prize Competition Act, 1955 does not apply to gambling competitions, but the
petitioners countered that the definition of prize competition in Section 2(d)
of the Act is quite broad, and it includes not only gambling competitions, but
also other types of competitions.but also those in which success is dependent to
a significant degree on luck.
According to the respondents, even if some parts
of the Prize Competition Act were invalid, the valid parts should remain intact,
and the entire Act should not be rendered null and void. The Supreme Court
ruled that the claim of a violation of fundamental rights will be dismissed
since gambling is not considered a commerce and so does not constitute a
violation of fundamental right. The Supreme Court, after examining all factors,
decided that the law of severability would apply in this case, with the invalid
sections being removed from the Act and the legitimate portion being enforced.
The court also established many guidelines on the doctrine of severability which
may define invalid and valid parts in a law.
Guidelines established in the judgment)
If the lawful and invalid parts are so closely intertwined that they cannot be
distinguished, the entire legislation or act is declared invalid.
the intention of the legislature will be the determining factor in deciding
whether the provisions under check are valid or not.
If the valid and invalid parts of the statute are different and can be separated
then the valid part which remains can form a complete code independent of the
rest, will be checked. Then only it will be upheld.
Even if the provisions which are valid are separate from those which are
invalid, but where supposed to be operated as whole together, the whole law will
When the valid and invalid parts of the Statute are independent and do not
form any part of the Scheme but what is left after excluding the invalid part is
so thin and curtailed as to be in substance different from what it was when it
emerged out of the legislature then also the entire part will be rejected.
The severability of the valid and invalid provisions of the Statute does not
rely on whether the provisions are enacted in the same or different sections.
If after the invalid part is obliterated from the statute, and what is left
cannot be enforced without making the modifications and alterations, then the
whole Act would be declared as void or else would lead to judicial legislation.
Doctrine of Severability with its very own nature, widens the scope for
judicial review and thus empowers the judiciary to strike out any
unconstitutional provisions of the law. It enables the judiciary to evaluate
pre-constitutional laws to check its consistency with the fundamental rights
provided by the constitution.
This doctrine also restrains the legislature from make laws which may harm the
fundamental rights of the citizens. The doctrine of severability plays a
important role to protect the democracy in the country by protecting the
fundamental rights of the citizens.
The doctrine of severability is a important element in the Indian Constitution
that protects every citizen's fundamental rights. It is a litmus test for
validating any law that violates fundamental rights, whether passed by the
current parliament and legislative assembly or before to the establishment of
the Constitution. This approach is very appealing because it safeguards the
entire statute from the consequences of any defective provisions.
provision of law violates a fundamental right and its presence has no major
effect on the functioning of the statute, the Court may hold that provision to
be void under this doctrine, while the entire statute remains in effect. This
idea applies to every legal component of government at all times. the very core
idea of doctrine of severability is to separate rightful and valid parts of a
law from invalid and unconstitutional ones. Thus is is very important to clearly
distinguish valid and invalid provisions of a law.
The guidelines made in R.M.D.C
vs Union of India
are very much precise and will be helpful to clearly filter
out unconstitutional laws. The doctrine of Severability has empowered our
judicial system and has enabled it to critically analyse the validity of laws in
accordance to the fundamental rights of the citizens. Thus this doctrine has a
major role in upholding the democracy of the country by upholding the
fundamental rights and giving it foremost importance in the judicial as well as
legislative system in India.
- Nordenfelt vs Maxim Nordenfelt Guns and Ammunition Company
- A.K.Gopalan v. State of Madras- https://indiankanoon.org/doc/1857950/
- R.M.D.C. v. Union of India - https://indiankanoon.org/doc/725224/
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