Doctrine of Severability

February 27, 2023

This article has been written by Ms. Damini Chauhan, a student of BBA.LLB (Hons), from United world school of law, Karnavati University, Gandhinagar. This author is a 5th year law student.

INTRODUCTION

The Supreme Court developed the Doctrine of Severability, also known as the Doctrine of Separability, to address the validity of laws that have been found to be unconstitutional. As a result, the issue of whether the entire Act should be deemed unconstitutional even if only a portion of it has been deemed void arose.

The Article 13 of the Indian Constitution provides for judicial review of any law or portion of a law that is found to be unconstitutional or to violate fundamental rights. In accordance with the Article, the doctrine of severability states that a law is only declared void to the extent that it is inconsistent with or in violation of the Fundamental Rights of the Indian Constitution.

According to the idea of severability, only the offending component of a statute or act that is in conflict with or objectionable to the fundamental rights guaranteed by the Indian Constitution would be deemed invalid, not the entire statute or act.

The core tenet of this approach is to only repeal the poor provisions of a statute or act that violate fundamental rights guaranteed by the Indian Constitution, rather than the entire statute. Because of this, if two provisions of an Act are tied together by and or or or, and the good provision is not dependent upon the bad provision, the bad provision can be detached and declared void, while the good provision will still be regarded as legitimate.

However, if a bad provision—one that violates fundamental rights—forms the basis of an entire statute or Act, makes up its entirety, and if removing that provision renders the entire statute useless, the court has the authority to declare the entire Act invalid because it will be impossible to separate the bad provision from the rest of the legislation.

GENESIS

The Doctrine of Severability is nothing new, nor was it only recently established. In essence, the Nordenfelt v. Maxim Nodernfelt Guns and Ammunition Company Ltd. case in England, the United Kingdom, and another case in the United States of America in the year 1876 served as the precedent for the doctrine of severability. Other than the nations stated above, several other nations, including Australia, India, and Malaysia, have adopted this ideology.

The United States’ Fundamental Rights and the United Kingdom’s Notion of Severability were among the best aspects that India chose for its constitution. By embracing the Doctrine of Severability, India preserves the doctrine of “Natural Justice.”

The doctrine of severability became widely accepted and used as a result of numerous landmark judgements; the cases are as follows:

In the cases of Ayotte v. Planned Parenthood of N. New Eng., 1894, and Champlin Refining Co. v. Corp. Commission of Oklahoma[1],1932, the court discussed the doctrine of severability in great detail and proposed three rationality principles to separate the problematic parts of an act and to approve the rest of it. The three interconnected principles are as follows: The court strives to only invalidate that which is necessary of the action of a legislator.

The Court refrains from amending the state statute to bring it into compliance with constitutional requirements since it is aware of the scope of its constitutional authority and institutional expertise.

Legislative purpose serves as the yardstick for any determination regarding a remedy.

In v. State of Madras, A.K. (1950) In this case, the communist leader who filed the petition argued before the Supreme Court that anyone who is arrested or detained has a right to know why they were doing so. He claimed that because he was detained under Section 14 of the Preventive Detention Act, 1950, his fundamental rights to freedom of movement and personal liberty had been violated.

The Supreme Court declared Section 14 of the Preventive Detention Act, 1950, unconstitutional because it violates Article 22 of the Indian Constitution, which states that anyone who is arrested cannot be held against their will. As Section 14 of the Preventive Detention Act, 1950 stated that the police shouldn’t be disclosing the reasons why a person is being arrested, it was argued before the court Sec. 14 is in violation of the Fundamental Rights of the Constitution.

Union of India v. R.M.D.C. (1957):

This case stands out among other important rulings because the entire ruling followed the doctrine of severability and made the following observations:

If a law’s legal portions may be separated from its invalid portions, it depends on the legislature’s intent.

The invalidity of a component may result in the invalidity of the entire Act if the valid and invalid portions of the Act are so closely combined that they cannot be distinguished.

However, if they are sufficiently distinct and separate, an Act is still enforceable after the invalid elements have been removed.

Courts would be hesitant to rule that a statute is unconstitutional and hence invalid or overbroad.

In contrast to an interpretation that would make the statute unconstitutional, courts would accept an interpretation that was in favour of constitutionality.

A law may be saved from being declared unconstitutional by the court by being read down. However, it is unable to alter the law’s core provisions and replace them with new ones that it deems to be more desirable.

State of Bombay v. F.N. Balsara (1951): In this case, the Supreme Court of India declared the unconstitutional portion of the Bombay Prohibition Act to be void and unenforceable because it could be separated from the entire Act. As a result, the Court only declared the portion that violated the Constitution’s fundamental rights and not the entire Act.

Zachillu v. Kihoto Hollahan (1965): This case is frequently referred to as the Defection Case. In this case, the court found that Paragraph 7 of the 10th Schedule of the Indian Constitution, as amended by the 52nd Amendment Act, 1985, was unconstitutional because it violated the provisions of Article 368 (2). However, the court only ruled that Paragraph 7 was unconstitutional and upheld the validity of the remaining provisions of the 10th Schedule.

Relevance

According to Black’s Law Dictionary, a “severability clause” is a clause that maintains the validity of the remaining provisions of a contract or law even if a portion of it is found to be void, unenforceable, or unconstitutional. It can also refer to a standard used by judges to determine whether to invalidate the entire contract or just the offending words.

This standard states that just the objectionable words are considered invalid if they could be easily removed by erasing them with a blue pencil rather than being changed, added, or rearranged. The adoption of the Severability Principles by India has strengthened the rule of natural justice in the Indian Constitution and increased the scope for judicial review to declare any law unconstitutional if it violates fundamental rights, whether it was passed before or after the establishment of the Indian Constitution.

This theory also gives the Supreme Court and the High Court the power to clarify the laws and to analyse pre-constitutional and current legislation in light of current regulations and provisions. As a result, it is acceptable to assume that the Doctrine of Severability plays a significant role and is absolutely relevant to the Indian judicial system.

PERSONAL OPINION

WHETHER THE DOCTRINE IS IMPORTANT?

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, so it becomes very important to abide by it. Article 13 of the Indian Constitution states about the laws which can be declared as unconstitutional pre and post establishment of constitution that are violative of the fundamental rights.

HOW DOES IT SUPPORT THE LEGAL SYSTEM?

The doctrine of severability aids the judiciary in clarifying laws and acts, opening up the scope of judicial review, and invalidating laws that conflict with the Indian Constitution’s fundamental rights.

IS THERE A BETTER OPTION AVAILABLE?

The severability theory outlines two guiding grounds for judging legislation or other actions to be unconstitutional:

merely holding a portion or component of the entire legislation to be invalid.

Declaring a section that is essential to the entire Act to be absent renders the Act ineffective and renders the entire Act invalid (declaring the provision void).

CONCLUSION

The first rule, in my opinion, is absolutely correct because only a portion or a provision of an act is declared to be void or unconstitutional, not the entire act. However, when it comes to the second rule, if a provision or a portion of an act is declared to be unconstitutional, which is the core of the entire act, declaring the entire act to be unconstitutional doesn’t seem to be the right course of action since the entire act is being declared to be void.

Because the doctrine of eclipse only renders the law unenforceable and invalid, rather than rendering it completely void or dead from the start, it is preferable to follow the doctrine of eclipse than the doctrine of severability for the second rule. Accordingly, in the second situation, it is preferable to declare the law that violates fundamental rights to be invalid under the doctrine of eclipse.

REFERENCE

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February 27, 2023