Doctrine of Severability

Basis of Doctrine:

This doctrine of severability is also known as the doctrine of seperability. 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

1
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 honorable Supreme Court of India has used this doctrine in the case of:

A.K Gopalan v. 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 v. 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 v. 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 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 v. 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 v. Union of India and the rules regarding severability was laid down in this case-

2
 1. The intention of the legislature behind this is to 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, and 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

3
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 centered 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 v. Planned Parenthood of N. New Eng., here also the court had laid down
the three principles of severability.

In another case which is Cardegna. v. Buckeye Check Cashing that 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 honorable Supreme Court of gave the decision and declared that the whole of

4
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 in
context of Indian Constitution then it will be the fundamental rights which are guaranteed by the
Constitution. So, this doctrine will work especially when subjected to this part which is Part III
of the Indian Constitution.

Constitutional validity and presumption taken by 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 v. 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

5
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 has 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 joiner 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.

Effects When a Law Is Declared As Unconstitutional:

Article 141 of the Constitution of India says that the honorable Supreme Court of India is
binding on all the courts which is within the territory of India. For example, once if any law
or any statute is declared unconstitutional by the Supreme Court of India then it shall be
from that date onwards will be binding on all lower courts in India. The effect of this is that
the decision operates as a judgment in rem against all the persons who may or is going to seek
relief in any

6
court in India. So, in further proceedings then there is no onus on the party to affected to
establish its unconstitutionality again and then the court is bound to reject the law which is
declared as invalid by the honorable Supreme Court.

The same thing is applied when the law has been declared to be unconstitutional partially.
If the law is sought to be enforced in a case then in such cases no notice is to be taken by the
Court of that part which has been declared by the Supreme Court as unconstitutional. In
other words, it means that the Court will read the Statute in such a manner that the part of
the section which has been declared as invalid as never existed before. If it happens that the
person is prosecuted for the contravention of the section which has been declared as invalid then
no onus is cast upon the accused to prove that his/her case falls upon and under that part of the
section which has been held invalid. On the other hand, it happens that the prosecution cannot
succeed unless it is proven that the accused has contravened that part of the section which is
enforceable and valid after the honorable Supreme Court decision.

No distinction is made where a case where the law is declared to be invalid because of the lack
of legislative competence and a case where it is declared invalid on the ground of contravention
of a fundamental right. Even Article 245(1) of the Constitution of India lays down very
specifically that the legislative power whether it is of Union or of a State Legislature is and
will always remain subject to other provisions of the Constitution. The result is that when a
legislature makes any law which is contravening a provision of the Constitution like say any of
the fundamental rights then the position will remain the same as if they had no power to legislate
over the subject-matter of the legislation at all. Then, accordingly, the declaration of invalidity of
the law by the honorable Supreme Court goes through the legislative power in either of the cases
as held many cases by the court itself.

7
Effects on Unconstitutional Statute Due to Constitutional
Amendment:

Earlier back in the days there were a lot of confusion upon this topic when there is a
constitutional amendment and because of this there is some effects on the unconstitutional
statute. The ‘doctrine of eclipse’ can be invoked in the case of pre-constitution law which was
valid when it had been enacted. But, there was some inconsistency with the constitution which
came into existence subsequently, if and when the shadow is removed, the pre-constitution law
becomes free from all kinds of infirmity.

But the thing is that the principle cannot be invoked in the case of a post Constitution law
which is void ab initio. In view of Article 13(2), the fundamental rights constitute express
limitations upon the legislative power of a legislature making a law after the
commencement of the Constitution and no distinction can be drawn between a post-
Constitution law which is ultra-vires that is beyond the legislative competence of the
legislature and a law which contravenes a fundamental right. It is that a post-Constitutional
law which violates a fundamental right is void ab initio and no subsequent amendment of the
Constitution can revive such still-born law, unless such amendment is retrospective.

8
Effects of a Proclamation of Emergency upon the Unconstitutional
Statute:

A Proclamation of Emergency which is made under Article 352 is prospective in its operation.
Article 358 in the Indian Constitution which frees the Legislature from the limitation which is
laid down in Article 19 during the proclamation of emergency means during its continuance. But
it does not operate to validate a law which is enacted prior to the Proclamation which was
invalid owing to the contravention of Article 13(2). Then such laws will be void ab initio
and cannot be revived by the proclamation of the emergency. So, now if any executive
action which is taken in the exercise of any power in the hands by such a void law will also
be invalid. Even though such action takes place after the commencement of the
Proclamation or a continuation of pre-Constitution executive action.

Whether a Right could be waived:

The important question which has been there over the years was that whether a fundamental right
could be waived which has been answered by the Constitution Bench of the honourable Supreme
Court. Like for example in the case of Behram v. State of Bombay where the honourable
Venkatarama J.had expressed the view that such of the rights as are for and in the interest of the
individuals and is totally different from the interest of the general public, could be waived
accordingly even the right which is guaranteed by Article 19(1) which also comes under this
category.

But everyone else didn’t have the same viewpoint which is the majority that included Mahajan,
C.J., Mukherjee, Bose and Hasan, JJ. And they expressed the viewpoint even without deciding
the question which was mainly for the good of the individuals. This has also been laid into our

9
Constitution on grounds of public policy and in pursuance of the objective declared in the
Preamble itself. So, in the end the conclusion is that none of the fundamental rights could be
waived.

Then again in the case of the Basheshar v. Commr. Of I.T., Justice Bhagwati and Subba
Rao, JJ. have held that a fundamental right being in the nature of a prohibition addressed
to the State, none of the fundamental rights in our Constitution can be waived by an
individual and this declaration was given with what the majority have viewed in the
Behram’s Case.

In the famous case of Olga Tellis v. Bombay Corpn. Where the Constitution bench has
unanimously held that there cannot be any estoppel against the Constitution which is the supreme
law of the land. Also, a person cannot waive any of the fundamental rights conferred upon him
by the Constitution itself which is stated in Part III. In many of the cases there have been
situations where the courts without even entering into the question of waiver, the Court has held
that a person who has applied for an appointment to an office by an Act is not prevented from
challenging on the ground that it violates his or her fundamental right which is guaranteed under
Article 16.

Effect of Acquiescence:

There have been cases over the years where it has been held that if a person has gained any kind
of benefits under statute then he/she cannot challenge its constitutionality or its validity in any
case. Like in the case of Nain Sukh v. State of U.P. where the Supreme Court has observed
that a person who had been allowed to contest an election which is being conducted on the
basis of separate electorates which is formed on the communal lines then he/she cannot

10
seek remedy under Article 32 of the Constitution of India after they are done with the
election.

Conclusion:

The doctrine of severability is necessary to protect the validity of the act as a whole without
which an entire act would become void due to invalidity of one provision of the act. Now it is up
to the courts to decide the question related to the effects of invalid provisions on the scheme of
the act and accordingly adjudicate the question of declaring the validity of the act as a whole and
various provisions of the act.

11