Doctrine of Severability – Explain With Leading Cases

Introduction

To comprehend the Doctrine of Severability it is a prerequisite to perceive the framework and the structure of the Indian Constitution. Why do our Constitution framers have made separate provisions for fundamental rights under Part III of the Constitution? What is its essentiality? Why the laws that clash with the scheme of Fundamental Rights are being upheld, ultra vires? Constitutional courts in India are vested with the power of judicial review, but by which and for what? The answer to these questions is as simple as that Part III exists to protect the ‘Freedom’ and’ liberties’ of the citizens by obviating the unnecessary intrusion of the state into such bestowed personal rights. Fundamental Rights are purported to reinforce the notion of egalitarianism. They are essential to foster the overall development of a country. That’s the reason why our Constitution has provisions for outlawing the laws that abridge the guaranteed fundamental rights and prohibits the legislature from making such laws as well. Article 13 contributes to the Doctrine of Severability by scaling up the scope of judicial review.

Thus, the judiciary can keep track of the legislature’s works under its purview. Thereby, it ensures that the citizen’s freedom and liberty have not been invaded by any means.

Essence of Doctrine of Severability

To epitomize its operational procedure, let’s assume that an Act has exclusively enacted to govern all the transactions in nexus with social media and cyberspace. Suppose one of its provisions clearly intends to limit the scope or infringes the fundamental right of free speech and expression guaranteed under Article 19 (1) (a) of the Indian Constitution. Now, what court will do? Whether it declares the whole statute as void or only the impugned provision that is unconstitutional should be held as such?

The Doctrine of Severability was devised to resolve this perplexity. By virtue of this Doctrine, the court detach the disputed provision from the statute (which is constitutional) and struck down that separated part alone (which is inconsistent with fundamental rights). Thereby, the whole statute will not be declared void.

It is worth recalling that, when Section 66A of IT Act, 2000 was challenged, the Supreme Court accepted the plea to strike down the challenged provision alone,[1] but held the constitutionality of the IT Act. It is noteworthy that the court even considered examining whether the impugned provision i.e. Section 66A does fall under the ambit of Article 19(2). But, it has no relevance with any of the subjects contained in Article 19(2), hence, the court upheld its non-severable nature, thereby, quashed the whole provision.

Constitutional Base of Doctrine of Severability

Article 13(1) states that “All laws in force in India, before the commencement of the Constitution, in so far as they are inconsistent with the provisions of fundamental rights shall to the extent of that inconsistency be void.” Comprehensively, the original context elucidates that the court shall nullify pre-constitutional laws to the extent to which it infringes the present-day fundamental rights. But what it connotes, does Article 13 have a retrospective effect? No, it is prospective in nature, because it does not declare any law void ab initio outrightly. Per contra, the repugnant law will become void only after the commencement of the Constitution.

In the case of Keshava Madhav Menon v. the State of Bombay,[2] by the operation of the erstwhile Press (Emergency Powers) Act, 1931, a prosecution proceeding was commenced against the appellant for publishing a pamphlet in 1949. The appellant challenged the constitutional validity of the Act invoking Article 13, as the Constitution has come into force during the pendency of the proceedings. For the first time, the court interpreted Article 13(1) and held that the proceedings against him would not be interrupted anyways. The court has refused to nullify the challenged Act on the grounds that the offence was reportedly committed before the active operation of the Constitution.

The subsequent clause (2) of Article 13 debars the state from enacting any laws that deprive rights provided under Part III of the Constitution. Thus, the object of this provision is to safeguard the supremacy of the Constitution and to prevent the transgression of fundamental rights. Clause (3) elucidates the extended connotation of the word “law’ used in the preceding clause (2).

Thus the judiciary (Article 32, Article 226) is empowered to examine the works of legislature pursuant to Article 13 provided for judicial review. The following doctrines were adopted to facilitate its operational efficacy,

Both the Doctrines affirm the non-applicability of laws that violates fundamental rights and supremacy of the Constitution. Nevertheless, the former clarifies that such laws will not be wiped out completely from the statute book.

Doctrine of Severability Meaning

Reiteratively, the Doctrine of Severability is the principle that has geared towards invalidating all laws that conflict with the interest of fundamental rights. You must have grasped the crux of Article 13 and comprehended that the Doctrine of Severability has two dimensions of operations.

1. As per clause (1) of Article 13, pre-constitutional laws must not curtail the fundamental rights, if so, the impugned provision will be held void after separating it from the whole statute.

Disputed provision – Whole statute = Remaining non-faulty provisions

But, if the court finds that such omission will not change the nature of the Act i.e. the very object of the law tends to bounce beyond the scheme of fundamental rights. The court will invalidate the entire law.

Illustration

Let’s say, XYZ Act was enacted in the year of 1945 to govern all religious transactions that take place within the Indian territory. And, one of its provisions affirms the monopoly of Brahmins in performing rites and rituals in the temple by denouncing the appointment of non-Brahmins as Pujari, though he has properly trained to perform all the rituals and is adept at all mantras has to be recited. This provision would certainly be in clash with Article 25 of the Constitution. Consequently, by application of this clause, the repugnant provision will be held ultra vires. But, what if the same XYZ Act in itself is discriminative on the grounds of religion or caste? Instead of that single provision, the court will invalidate the whole statute.

2. In the case of Renu v. District and Sessions Judge Tis Harzari,[3]the supreme court of India held that “The object of Article 13(2) is to ensure that instruments emanating from any source of law, permanent or temporary, legislative or judicial or any other source, pay homage to the constitutional provisions relating to fundamental rights.” Thus, Clause (2) of the Article secures the paramountcy of the constitutionally bestowed fundamental rights by proscribing the legislature from enacting any laws over its scheme. If so, it will be declared void.

Origin and Evolution of Doctrine of Severability

The Doctrine had its origin in England and was later adopted by the Indian judiciary. The Doctrine was applied for the first time in the case of Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Company Ltd. it dealt with facts related to the contract in restraint of trade. The court noticed the severability of a clause in the disputed contract and held it void. However, it is pertinent to note that the court had not explicitly applied the Doctrine of Severability to invalidate the impugned clause; instead, the employed principle was the Doctrine of Blue Pencil.

Champlin Refining Co. v. Corp. Commission of Oklahoma is the case where the U.S. Supreme Court recognized and applied the Doctrine of Severability to adjudicate the arisen dispute challenging the constitutionality of several provisions of a statute.

Later in the year 2006, the three underlying principles of Doctrine were laid down in the case of Ayotte v. Planned Parenthood of N. New Eng. They are,

  1. The court shall not nullify legislature’s work merely without any necessity.
  2. The court shall not ‘rewrite the state laws to confirm it to Constitutional.’
  3. Legislative intent is the touchstone for all judicial decisions on remedies.

Undeniably, the Indian Constitution has an ample number of borrowed features to ensure its fairness and adequacy. This Doctrine is one among those that were picked from the UK.

Features of Doctrine of Severability

  • Fostering the scope of judicial review.
  • Applicable to all operations fall within the purview of the context ‘law’. [Article 13(3)]
  • The impugned provision/law must be inconsistent with Part III of the Constitution.
  • Onus (burden of proof) lies on the appellant/ complainant, who has challenged the constitutionality of any statute or law[4] Fundamental Rights meant to ensure the wellbeing of the citizens. Thus, every single citizen of India has the right to seek enforcement of this Doctrine.
  • It nullifies the laws or provision which curtails the fundamental Rights unlike the Doctrine of Eclipse, which makes the repugnant provision overshadowed by the fundamental rights i.e. keeping it in a dormant state.

Case Laws on Doctrine of Severability

K. Gopalan v. State of Madras – 1950[5]

The disputed statute was The Preventive Detention Act, 1950. The petitioner invoked Article 13(1) and challenged the Act claiming that it has infringed his fundamental rights provided under Articles 19 and 21 of the Indian Constitution. Anyways the court had not invalidated the entire statute but quashed Section 14 of the challenged Act and upheld the constitutionality of the rest provisions of the Act. While adjudicating the matter in issue the court observed that “the impugned Act minus this Section can remain unaffected. The omission of the Section will not change the nature or structure of the subject of the legislation.” Therefore, the other provisions of the Act will remain intact according to the Doctrine of Severability.

State of Bombay v. F.N. Balsara – 1951[6]

Here, the disputed statute was the Bombay Prohibition Act, 1949. The Supreme Court reaffirmed that declaring any provision of the Act as void will not affect the operation of other provisions within the statute. And, the very nature of this Doctrine is invalidating the unconstitutional provisions separably with keeping the remaining provision intact.

But, there is one exception. If the valid portion has entangled with the invalid portion as in nature it cannot be separated without creating lacuna in the statute, then the court will hold the entire Act, ultra vires. The same was held in the case of Romesh Thappar v. the State of Madras.[7]  The Apex court observed that “where a law purports to authorize the imposition of restrictions on a fundamental right in language wide enough to cover restrictions, both within and without the limits provided by the Constitution and where it is not possible to separate the two, the whole law is to be struck down. So long as the possibility of its being applied for purpose not sanctioned by the constitution cannot be ruled out, it must be held to be wholly void.

M.D.C. v. Union of India – 1957[8]

The disputed statute was the Prize Competition Act. It became apparent that the challenged Act had not demarcated the gambling-natured competition from the skill-based competition. Notably, Section 2(d) of the Act was broad enough to include both the competitions. While holding the unconstitutionality of the competition with no skills, the Supreme Court laid down various rules pertaining to the Doctrine of Severability.

Instances on which the whole statute will be held void, when,

  • The invalid provision is inseparable from the valid portion i.e. removal of such a provision from the statute will make it an incomplete code.
  • Though the invalid provisions of the Act are separable, the primary factor that the court should examine is that what was the intention of the legislature while enacting such an act?  Test that should be applied is that whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid.
  • The remaining statute is incompetent to execute its operation or when the alteration/modification is needed.

The intention of the legislature is the determining factor of the severability in question. Hence, it has been prescribed to scrutinize its history, object, title, and preamble of the legislation before reaching a decision.

Conclusion 

The Minerva Mills v. Union of India, 1980[9] and the D. S. Nakara & Ors. v.Union of India, 1982[10] are other two cases where the court employed this Doctrine and declared the severability of the repugnant provisions. The best way to exemplify the Doctrine of Severability is that it is a kind of filter that removes all the impurities (inconsistent provisions) of a statute, which passes through it. There is a limitation on its execution; Article 13(4) provides that nothing in this article shall apply to any amendment of this Constitution made under Article 368. This clause was inserted by the Constitution (24th Amendment) Act. Prior to that, in Shankari Parsad v. UOI,[11] it was held that an Amendment Act, passed through Article 368 would not fall under the purview of “law” within the meaning of Article 13(2).

Later, it was overruled in the case of Golaknath v. State of Punjab.[12] However, the Constitution (24th Amendment Act) did override the rationale of the Golaknath case. Again, the validity of the Constitution (24th Amendment Act) was challenged in the Kesavananda Bharati v. the State of Kerala;[13] the court overruled the Golaknath case and upheld its constitutionality.

Now, the question has been settled by the catena of judicial decisions. Conclusively, even an amendment Act can be subjected to judicial review, if it impairs the basic structure of the Constitution.

References:

  • https://lexlife.in/2020/05/14/constitutional-law-doctrine-of-severability/
  • https://lexforti.com/legal-news/doctrine-of-severability/
  • https://www.lawctopus.com/academike/article-13-analysis/

[1] Shreya Singhal v. Union of India, AIR 2015 SC 1523

[2] AIR 1951 SC 128

[3] AIR 2014 SC 2175

[4] Chiranjit Lal Chowdhury vs The Union of India and Others

[5] AIR 1950 SC 27

[6] AIR 1951 SC 318

[7] AIR 1950 SC 124

[8] AIR 1957 SC 628

[9] AIR 1980 SC 1789

[10] 1983 AIR 130

[11] AIR 1951 SC 458

[12] AIR 1967 SC 1643

[13] AIR 1973 SC 1461

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Snegapriya V S

A third-year student of law at Vellore Institute of Technology (VIT School of Law), budding first-generation lawyer cum legal researcher with multiple publications in various web journals and portals on different subject matters of law in issue. Being a zealous-natured person with thoughts enrooted in epistemophilia has boosted my passion for research writings by interpreting diversified legal facets. As a perceptive observer and reader, I pay greater attention to the overlooked legal fields where divergent challenges might arise, that include cyber law, environmental law, consumer law, and several constitutional provisions. Besides, I prioritize construing legal problems with social psychology. My dream and vision are to catch myself as a skilled legal adroit.

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