DOCTRINE OF SEVERABILITY

The Doctrine of Severability is also known as the Doctrine of Separability. Doctrine says that, if
a provision is inconsistent with the Fundamental Rights, the whole Statute will not be held void,
only those inconsistent provisions becomes void and not the whole statute. And, if any provision
of the Statute which is inconsistent to the Fundamental Right is cardinal to the functioning of
Statute; i.e. without the presence of such disputed provision, the whole Statute would come to
haphazard; then, instead of a particular provision, the whole statute would be deemed void.

It’s more like a filter, through which Pre-Constitutional Laws goes through, any provision of a
Law which is inconsistent with Fundamental Right and its absence would not affect the cardinal
functioning of the Statute; the filter will stop that provision and let the whole Statute pass
through it. If such provision is cardinal to the functioning of the whole Statute; consequently the
Filter will stop the whole Statute all together from passing off.

The term Blue-Pencil  means to censor or to make cuts such as manuscript, film or other words.
The Severability Clause finds its basis from the Blue-Pencil, or Blue-Pencil Test, which means to
delete the invalid (unenforceable) words of a part of statute to keep the other parts of such
provisions validated, and thus, enforceable. Resultantly, the valid part of a provision is enforced
without the need to invalidate the complete provision solely owing to a certain invalid part.
ORIGIN OF THE DOCTRINE IN ENGLAND-

The doctrine of severability finds its roots in England. In Nordenfelt v. Maxim Nordenfelt
Guns and Ammunition Company Ltd., the issue was related to a Trade clause. Here the
disputed clause was severable; and hence only a part of it became void.’

Further, in 2006, in Ayotte v. Planned Parenthood of N. New Eng., Court laid down the three
principles of severability, which are given below:

 The court tries not to nullify more of a legislature’s work than is necessary.
 The Court restrains itself from “rewriting the state law to conform it to constitutional
requirements”.
 The touchstone for any decision about remedy is legislative intent.

INDIAN SCENARIO-

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In India, the doctrine of severability was first discussed in 1957 in the case of R.M.D.C. v.
Union of India. Legislative intent was thoroughly examined by the Hon’ble court in this case
and it was said that legislative intent is the determination of whether the invalid part of the
statute can be severed from the rest of the valid provisions of the act. If the valid and invalid
parts are inseparable, the whole statute would have to be struck down. Even if it happens that the
invalid portion is separate from the valid portion .

The 'Doctrine of Severability' in Article 13 of the Constitution of India can be understood in two
dimensions:

Article 13 (1) validates all Pre-Constitutional Law and, thereby, declares that all Pre-
Constitutional laws in force before the commencement of the Constitution of India shall be void,
if they are inconsistent with the fundamental rights. Thus, Doctrine of Severability facilitates the
operation of Article 13(1).

Article 13 (2) mandates the State that it shall not make any law which takes away or abridges the
fundamental rights conferred in Part III of Constitution of India and any law contraventions this
clause shall be void.

The Doctrine of Severability in Constitution of India is a pre-eminent principle to protect the

fundamental rights of every citizen of the country. It is an acid test to validate any law against
the Fundamental Rights that enacted either in the present Parliament and Legislative Assembly
or in the pre-constitutional period. This doctrine has an all-time relevance in every legal aspect of
the governance of a Welfare State.

Landmark Judgments-

A.K Gopalan v. State of Madras – 1950 The disputed Statute here was Prevention Detention
Act, 1950 in the light of Article 19 and 21 of the Constitution. The Supreme Court held that the
whole Statute will not be struck off, but only Section 14 of the Act was severed and held void,
while the other provisions remain intact within the Statute.

State of Bombay v. F.N. Balsara – 1951 The disputed Statute here was Bombay Prohibition
Act, where the unconstitutional provision was held void and inoperative while the other part of
the Act was intact and the Statute was still be remaining in the force.

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The State of Bombay v. R.M.D. Chamarbaugwala – 1957 The Court laid down various rules
regarding the doctrine:

1. Determine whether the invalid portion of the statute can be severed from the valid part or
not.
2. The severability of the provisions of a Statute does not depend on whether provisions are
enacted in same section or different section, it is not the form but the substance of the
matter that is material and that has to be ascertained on an examination of the Act as a
whole and of the setting of the relevant provisions therein.
3. In determining the legislative intent on the question of severability, it will be legitimate to
take into account the history of legislation, its object, the title and preamble of it.

In 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.

Kihoto Hollohan v. Zachillhu – 1992 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.

WHAT HAPPENS IF THE SUPREME COURT DECLARES ANY LAW AS

UNCONSTITUTIONAL

Article 141 of the Constitution lays down that the decision of the Supreme Court of India will be
binding on all the Courts in Indian territory. The effect is that once Supreme Court declares any
law as unconstitutional, it would act as a Judgment in rem against all the people who are seeking
relief in any Court of India against the said Law. If Supreme Court once has invalidated the Act
partially then, the Court will deem to presume the invalidated part as it has never existed before.

APPLICATION OF DOCTRINE DURING LOCKDOWN-

During the pandemic, lockdown was imposed in the country which completely restricted
people’s movement, the whole country was forced to stay at their places and it violated people’s

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right under Article 29 and 21 of the constitution. The doctrine of severability would apply in this
lockdown protocol where, the unconstitutional portions of the protocol would be severed and
made void and the valid part would be continued.

CONCLUSION

Doctrine of Severability is a principle, recognized as a part and parcel of Article 13 of the

Indian Constitution. It protects every citizen from getting their Fundamental Rights violated.
This doctrine is valid in both Pre-Constitutional and Post-Constitutional Laws. Speciality of this
doctrine is that, it protects the whole statute from the repercussions of having any faulty
provisions. The Chief Justice John Roberts in Seila Law Vs Consumer Financial Protection
Bureau, said it's a scalpel rather than a bulldozer. The doctrine is of utmost necessity as it
protects the people from any arbitrary acts of the legislature which violate the basic fundamental
rights.

REFERENCES

 https://www.google.com/amp/s/lexforti.com/legal-news/doctrine-of-severability/%3famp
 https://www.legalserviceindia.com/legal/article-4014-doctrine-of-severability-a-scalpel-
rather-than-a-bulldozer.html
 https://licitgist.in/doctrine-of-severability/