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Mansi Aggarwal   24 February 2021

Doctrine of severability

What is the applicability of Doctrine of Severability under Article 13(1) of the Indian Constitution?


Learning

 3 Replies

175B083 Mahesh P S   24 February 2021

Hello,

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.

In this doctrine it is not the whole act which is held invalid for being inconsistent with the Part three of the constitution which is given to the citizens of India. It is only those parts are inconsistent which are violative of the fundamental rights. But just the part which violates the fundamental rights is separable from that  which does not isolate them. If it there that the valid portion is combined with the invalid portion that it is impossible to separate them. Then in such cases the court will leave it and declare the whole Act as void. This process of doing it is known as the doctrine of severability.

The honourable Supreme Court of India has used this doctrine in the case of A.K Gopalan vs State of Madras it was held by the court that the preventive detention should be removed from section 14 then it would be valid and by removing this will not affect the act and it will remain valid and effective. The doctrine was further was also applied in D.S Nakara vs Union of India where it was that the act remained valid and the portion which was not consistent was declared as invalid and this was because it was easily separated from the valid part. Also, State of Bombay vs F.N Balsara and here it was held that the provision of the Bombay Prohibition Act, 1949 where the entire act was declared as void and it did not affected the rest of the part and there was no need to declare the whole statute as void.

The doctrine of severability was even used in the case of Minerva Mills vs Union of India  where section 4 of 55 of the 42nd Amendment Act, 1976 was struck down for being beyond the amending power of the Parliament and then it had declared the rest of the Act as valid. Then in another case of Kihoto Hollohan Vs Zachillhu which is very famously known as the defection case. In this case the paragraph 7 of the Tenth Schedule which was first inserted by the 52nd Amendment Act of 1985 was declared as unconstitutional because it had violated the provisions under Article 368(2). But, the whole part was not declared unconstitutional. So, the rest of the Tenth Schedule excluding paragraph 7 was upheld by the Constitution.

The doctrine of severability was considered by the supreme court of India in the case of R.M.D.C vs Union of India and the rules regarding severability was laid down in this case-

  1. The intention of the legislature behind this is the determine whether the invalid portion of the statute can be severed from the valid part or not.
  2. And if it happens that the both the valid and invalid parts can’t be separated from each other then the invalidity of the portion of the statute will result in invalidity of the whole act.
  3. Even if it happens that the invalid portion is separate from the valid portion.

It is the power and duty of the courts to declare law which is inconsistent with the constitution of India to be unconstitutional. The foundation of this power of judicial review as it was explained by a nine-judge bench is the theory that the constitution which is the fundamental law of the land, is the will of the people, while the statute is only the creation of the elected  representatives of the people, when therefore the will of the legislature as declared in a statute, stands in opposition to that of the people as declared in the Constitution, the will of the people must prevail.

Also, the power to annul the acts of the executive and the judiciary which violates the constitution is given by the Constitution itself in the judiciary. But, the same is not part of the legislature which is the creature of the constitution or one can say a law-making body. It is not correct to say that view of the legislators must prevail because they are answerable to the people. In determining the constitutionality of a provision the court will first question that whether the law is constitutional or not because there will be a possibility that it might be contravening a lot of articles that is enshrined in the constitution.

Practice of Doctrine of Severability

The practice of Doctrine of Severability has been in practice for a very long time and it is not a new thing. It has been adopted in many countries like United Kingdom, Australia, United States of America, Malaysia and so as well in our country which is India. In England, United Kingdom the doctrine of severability goes back when it had originated in the case of Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Company Ltd. In this case Then in other countries like the United States of America where the first case of doctrine of severability was decided in the year 1876. After this a question evolved which question that if the Congress knew about the invalid portion had it enacted it the first time. In this particular case the case was centred around the fifteenth amendment of the american constitution that spoke about the voting rights not being  denied to the American male citizen on the basis of color or race etc.

Then in the very popular case of Champlin Refining Co. v. Corp. Commission of Oklahoma where an oil refining company had challenged several provisions of the Oklahoma statute which further argued the various provisions that had violated the Commerce Clause and even the fourteenth amendment that talks about the due process and equal protection clauses. And in determining whether any of these or any one of them could be struck down and further separated from the residue of the oil and gas statute at issue. In the year 2006 the Supreme Court of the United States of America propounded the three principles as an underlying rationale. Then in the case of Ayotte vs. Planned Parenthood of N. New Eng., here also the court had laid down the three principles of severability.

In another case which is Cardegna. Vs Buckeye Check Cashingthat was in the year 2006 where the defendant which was the Buckeye took a loan amount from a subsidiary that was a business. Later on again he took another loan amount which was higher than the loan amount which was previously taken and then he was later unable to pay back. He then filed a class action suit with the help of a lawyer. The suit was regarding that the interest rates charged by the plaintiff were higher when compared with others that was charged by the company that was at least 45 percent higher than the prescribed normal rates. But, the court in Florida stated that it is not only one part of the contract that could be challenged  but it needs to be the whole contract. And so this means that the doctrine of severability which earlier was thought could be applied cannot be applied now. Further the honourable Supreme Court of gave the decision and declared that the whole of the contract was void ab initio on the grounds that such void contracts that are absolutely void and useless from the initial stage itself.

The doctrine of severability has now it just been part of the western world but also has spread to the eastern countries of the world. Like from India to Malaysia and in Malaysia this doctrine was evolved in the very popular case which is Malaysian Bar & Anr. V. Government of Malaysia. When we talk about India with respect to the doctrine of severability then we need to study and understand how Article 13 of the Indian Constitution came into being. This doctrine works when it becomes evident that any part of the law offends the Constitution . When we talk about incontext of Indian Constitution then it will be the fundamental rights which is guaranteed by the Constitution. So, this doctrine will work especially when subjected to this part which is Part III of the Indian Constitution. 

Whether One Could Challenge the Constitutionality of a Law

One can challenge the constitutionality of law but only if our rights are directly affected by a law. Then only we can question the constitutionality of the law. It follows in such ways-

When a person is outside the class that might be injured by the statute then he has no right to complain. Then where a statute affects bona vacantia, then there is no person who is competent to challenge the validity of such statute. Again, where the statute operates as a contract, either party to the contract is entitled to challenge the validity of the statute.

Presumption Taken By The Courts

It is always on the person who attacks and tries to show that it is contravening the constitution then it is him on whom the burden is upon to show that courts that while performing its duties it has the constitutional principles by and its guidelines while laying down its decisions as it said in the case of Chiranjit Lal Chowdhury vs The Union Of India And Others.  If it happens that the challenge is not on the provisions of the Constitution then the courts have to consider and make sure that it is intra vires and try to interpret the same. So, it is clear that the burden fully lies upon the person who questions the decision and challenges it in a court of law.

If something happens and the constitutionality of the act is challenged then the person must show that he has sustained some injury as a result of that or that he/she is in immediate danger of sustaining some direct injury as a result of the statute or law coming into force. And if it even abridge the fundamental rights of the person in any form then the aggrieved person has all the powers to approach the courts without waiting or delaying for the State to take some or any type of action. And if it happens that the person does not possess any of the fundamental rights then he/she cannot challenge the validity of the law on the grounds that it is inconsistent with a fundamental right. Even a corporation has a legal entity separate from that of its shareholders. Hence, in the case of corporations, whether the corporation itself or the shareholders would be entitled to impeach the validity of the statute and this will depend upon the question whether the right of the corporation or of shareholders have been affected by the statute that has been impugned. 

When it happens that the fundamental rights of the company is impugned by the statute then it also affects the interest of the concerned shareholders then in such cases the shareholders also impugns the constitutionality of the statute. In such situations what  happens is that the joinder of the company as co-petitioner would not bar relief to the shareholders even though the company  is not a ‘citizen’ and so would not be entitled to relief. Also, the possibility of financial relief due to the management of the company being taken over by the government is sufficient to give locus standi to a shareholder.

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. (Source: ipleaders, legalservicesindia)

Thank you

 

BHAVYA SOM GARG   11 July 2021

Severability means to severe or separate. In practical sense the doctrine means that if certain parts of a law are such which can be separated from the whole law without affecting its essence, then upon removing such parts, the law can become a valid law. But if the invalidating portion is so intricately imbibed in the law that it cannot be removed without compromising the entire law, then the doctrine cannot be applied and the entire law would be considered as void.

This doctrine has been derived from Article 13(1) of the Constitution of India which says that all pre-constitutional laws in force before the commencement of the Constitution, which were not in sync with the provisions related to Fundamental Rights, would be void to the extent of such inconsistency. Now applying the doctrine, if a pre-constitutional law has some elements which would be violative of the Fundamental Rights given in the Constitution, such a law would be void. But if those inconsistencies can be separated from the whole law and the remaining law can be does not contravene any Fundamental Rights, such laws would be valid and become applicable irrespective of the fact that they were made before the commencement of the Constitution.


(Guest)

Hello,

The following doctrine states that an offending provision can be separated from that which is constitutional. In such a case, the offending part is to be declared void and not the entire statute. The court applies the doctrine of severability where it wants to separate these valid portions of the law from invalid portions. It provides for declaration of the part that is in contravention of the fundamental rights as void under article 13 and not the whole law.

The doctrine of severability has been applied by the Supreme Court to test the validity of amendment of Constitution on the ground of disregard of the substantive control on the amending power of the parliament

Article 13(1) provides that all laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of this part will be void.

Hope this helps!


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