The Doctrine of Severability or Doctrine of Separability was conceive by the
Supreme Court to resolve the issue of validity of laws which are held as
unconstitutional and due to which a question was raised as to whether the whole
Act should be declared as unconstitutional even if only a part of the whole Act
has been declared as void.
Basically this doctrine is interlinked from the
Article 13 because the doctrine through the Article 13 of the Indian
Constitution opens the doors for the judicial review on any law or part of it
that is found unconstitutional or violative of fundamental rights and
according to the Article the doctrine of severability means a law which is
declared as void is only to the extent of inconsistency or contravention with
the Fundamental Rights of the Indian Constitution.
The doctrine of
severability states that any provision or a portion of law in a Statute or an
Act inconsistent or offensive with the fundamental rights of the Indian
Constitution then such offending part shall be declared as void and not the
whole Statute or an Act.
This doctrine's basic moto is to remove only the bad provision which is
violative of the fundamental rights under the Indian Constitution from the whole
Statute or Act, not the whole Statute. So in any of the Act if the good and the
bad provisions are joined together by and or or then in a such a case if the
good provision is not dependent upon the bad provision then the bad provision
can be separated and can be declared as void and the good provision will be
still considered as valid.
However in a case wherein the whole statute or Act is
dependent upon a bad provision (provision violative of the fundamental rights)
and it's the essence of the whole statute and after removal of such provision
the whole statute will be of no use then in such a case wherein it becomes
impossible to separate the bad provision, the court has the right to declare the
whole Act as void.
The Doctrine of Severability is not a new thing, it hasn't been adopted very
recently either. Basically this Doctrine was originated by a case of Nordenfelt
v. Maxim Nodernfelt Guns and Ammunition Company Ltd. in England, United Kingdom
and also in one of the case in United States of America in the year 1876 the
first case of doctrine of severability was decided. This doctrine has been
adopted in many other countries other than the countries mentioned above like
Australia, India and Malaysia.
India had chosen the best features from the other countries for our constitution
like the Fundamental Rights form the USA and Doctrine of Severability from
United Kingdom and by adopting the principles of severability India upholds the
doctrine of 'Natural Justice
There are many landmark Judgments due to which the Doctrine of Severability
became prevalent today and is being followed widely, the cases are as follows:
Champlin Refining Co. v. Corp. Commission of Oklahoma
,1932 and Ayotte vs.
Planned Parenthood of N. New Eng
, 1894, the court discussed the doctrine of
Severability in detail and propounded 3 principles of rationality to sever the
problematic portions of an act and to approve the rest of it. The three
interrelated principles are as follows-
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.
A.K. Gopalan v State of Madras
(1950) – In this case the petitioner, a communist
leader challenged the Supreme Court stating that before detaining any person the
person has the right to know on what grounds he/ she has been arrested or
detained as he was detained under Section 14 of the Preventive Detention Act,
1950 hence he argued that his fundamental rights i.e Article 19 (Freedom of
Movement) and Article 21 (Personal liberty) has been violated.
As Section 14 of Preventive Detention Act, 1950 stated that the police shouldn't
be disclosing the grounds under which a person is being arrested and hence it
was argued before the court Sec. 14 is violative of the Fundamental Rights of
the Constitution and therefore the Supreme Court held Sec. 14 of the Preventive
Detention Act, 1950 as unconstitutional because it is violative of Article 22 of
the Indian Constitution which states that any person who is arrested, cannot be
detained in custody without being informed of the grounds.
R.M.D.C. v. Union of India
This case finds its significant place among
other landmark judgements as the entire judgement observed Doctrine of
severability and its observations are:
State of Bomaby v. F.N. Balsara
- The Intention of the legislature is the determining factor whether the valid
part of a law is severable from the invalid parts
- If the valid and invalid portion of an act is closely amalgamated in a way that
it cannot be separated, the invalidity of a portion may result in invalidity of
the entire Act.
- On the other hand, if they are so distinct and separable after striking out the
invalid portions of an Act, it becomes enforceable.
- Courts would be reluctant to declare a law invalid or ultra vires on account of
- Courts would accept an interpretation, which would be in favour of
constitutionality rather than the one which 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.
In this case the unconstitutional part
of the Bombay Prohibition Act was declared as unenforceable and void by the
Supreme Court of India because the portion which was declared as invalid was
separable from the whole Act therefore the Court only declared the portion going
against the fundamental rights of the Constitution and not the whole Act.
Kihoto Hollahan v. Zachillu
This case is popularly called as the Defection Case
. In this case the court held that the Para 7 of the
10th Schedule of the Indian Constitution by the 52nd Amendment Act, 1985 as
unconstitutional because it was observed by the Court that Para 7 was violating
the provisions under Article 368 (2), however but the court only declared the
Para 7 as void and upheld the rest of the provisions under the 10th Schedule as
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.
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. India adopting the Principles of
Severability has made the Indian constitution to upheld the rule of natural
; it widens up the scope for judicial review to declare the
unconstitutionality of any Law as to whether any laws pre or post establishment
of Indian Constitution goes against the fundamental rights.
This doctrine also
enables the Supreme Court and the High Court to review the existing and the pre-
constitutional laws by the contemporary rules and provisions under various laws
also it authorizes the SC and HC to elucidate the laws. Therefore it can be
safely considered that the Doctrine of Severability plays a very important role
and is of an absolute relevance in the Judicial System of India.
Whether the doctrine is important?
Article 13 of the Indian Constitution states about the laws which can be
declared as unconstitutional pre and post establishment of constitution which is
violative of the fundamental rights and the doctrine of severability which also
states about the same principles becomes important for the welfare of the public
at large because the fundamental rights mentioned under the Indian Constitution
is for the welfare of the citizens therefore it becomes very much essential to
follow the doctrines of severability and to remove the laws violating the
fundamental rights so that no one's fundamental rights gets infringed.
How is it helping the Judicial System?
Doctrine of severability helps the Judiciary to open the applicability of
Judicial Review and to elucidate the Laws and Acts and also to declare the laws
as unconstitutional or void which goes against the fundamental rights of the
Is there any better Alternative?
The doctrine of severability states about two principles for the declaring
the laws or acts as unconstitutional:
- By only declaring a part or a provision as unconstitutional from the
- By declaring the whole act as unconstitutional because by the absence
(declaring the provision void) of a provision, which is the essence of the
whole Act makes the Act useless.
According to me the first rule is absolutely correct because it's only a part or
a provision which is been declared as void or unconstitutional, not the whole
act whereas talking about the second rule if a provision or a part of a Act is
declared as unconstitutional which is the essence of the whole Act and hence the
whole Act declared as unconstitutional doesn't seem to be right because it's not
just about a provision it's about the whole Act being declared as void and
So for the second rule it's better to follow the doctrine of
Eclipse than Doctrine of Severability because the doctrine of Eclipse only makes
the Law unenforceable and invalid and not completely void or dead from the
beginning, hence under the second situation the better alternative is to declare
the Law violating the fundamental rights as invalid under Doctrine of Eclipse.