The Doctrine of Severability

 Introduction

The Doctrine of Severability, also known as the Doctrine of Separability, safeguards citizens' fundamental rights by ensuring that an invalid or unconstitutional provision does not taint an entire law. This principle prevents judicial overreach and ensures that the legal system continues to function smoothly, even when parts of a statute are found to be unconstitutional.

Origin of the Doctrine of Severability

The origins of the Doctrine of Severability can be traced back to England, particularly in the case of Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Company Ltd., which involved a trade clause. This case laid the groundwork for the concept of separating valid and invalid provisions in legal frameworks.

What is the Doctrine of Severability?

The Doctrine of Severability is rooted in Article 13 of the Constitution of India, 1950 (COI). It stipulates that if a provision of a law is unconstitutional or inconsistent with fundamental rights, only the offending part of the law should be declared void. The rest of the law, if valid, remains intact.

This doctrine ensures that when a law contains both valid and invalid provisions, the courts will separate the valid portions from the invalid ones. Only the unconstitutional provisions are struck down, while the rest of the statute remains enforceable.

Article 13 of the COI

Article 13 of the Constitution deals with laws that are inconsistent with or infringe upon fundamental rights. It states:

1. Pre-Constitutional Laws: Laws in force before the Constitution came into effect are void to the extent that they are inconsistent with the provisions of Part III (which deals with fundamental rights).

2. State Laws: The State cannot make laws that take away or reduce the rights conferred by Part III. Any law made in violation of this provision will be void to the extent of the contravention.

3. Definition of Law: The term "law" includes ordinances, orders, by-laws, rules, regulations, and any custom or usage having the force of law in India.

4. Amendments: Nothing in Article 13 applies to amendments made under Article 368 of the Constitution.

Principles of the Doctrine of Severability

In the landmark case of RMDC v. Union of India (1957), the Supreme Court outlined the following principles of the Doctrine of Severability:

1. Legislative Intent: The key factor in determining whether the valid provisions can be separated from the invalid ones is the legislature's intent. If the legislature intended the law to remain valid even without the unconstitutional part, the valid provisions will stand.

2. Indivisible Provisions: If the valid and invalid provisions are so closely intertwined that they cannot be separated, the whole law will be struck down.

3. Valid and Invalid Parts: If the valid and invalid provisions are separable, and after removing the invalid part, the remaining law forms a complete and functional statute, the rest of the law will remain in force.

4. Constitutional Scheme: If the provisions are part of a broader legislative scheme that was meant to function as a whole, the invalidity of one portion may result in the failure of the entire law.

5. Evaluation: The separability of valid and invalid provisions is not based on whether they appear in the same section or different sections of the law. The substance of the law and its overall purpose must be considered.

6. Changes and Adjustments: If the remaining provisions require significant changes or adjustments to make the law functional, the entire statute may be declared void, as doing so would constitute judicial legislation.

7. Legislative History: Courts will also consider the history, objectives, and preamble of the legislation to understand the legislature's intent regarding separability.

Limitations of the Doctrine of Severability

The Doctrine of Severability has its limits. If the valid and invalid portions of a law are so intertwined that they cannot be separated, the entire statute may be deemed invalid.

Landmark Cases on the Doctrine of Severability

1. A.K. Gopalan v. State of Madras (1950)
   In this case, the Supreme Court ruled that while Section 14 of the Preventive Detention Act, 1950, was void, the rest of the statute remained valid. The Court emphasized that in cases of inconsistency with the Constitution, only the offending provision should be struck down, and efforts should be made to preserve the rest of the law.

2. State of Bombay v. F.N. Balsara (1951)
   The Supreme Court declared eight sections of the Bombay Prohibition Act invalid, but ruled that the invalid parts were separable from the rest of the statute. The Court held that the portions that infringed on fundamental rights could be removed without invalidating the entire Act.

The Doctrine of Severability plays a crucial role in maintaining the integrity of laws by ensuring that valid provisions remain enforceable even when some parts of a statute are declared unconstitutional.