Doctrine of Severability

The idea of severability is also known as the separability doctrine. The doctrine
of severability states that where a specific component of legislation violates a
constitutional limitation but is severable or separable from the remainder of the
statute, the Court will declare only that offending provision unconstitutional, not
the entire statute.

1. Doctrine of Severability
2. Cases
3. R.M.D.C v. the State of Bombay - AIR 1957 SCR 874
4. A.K. Gopalan v. State of Madras - AIR 1950 SCR 88
5. Conclusion

Doctrine of Severability

• When only a piece of a challenged statute or law violates fundamental

rights, and in such cases, the Doctrine of Severability is used.
• Article 13 of the Constitution establishes the Doctrine of Severability’s
legitimacy, which states that “All laws in force in India, before the
commencement of the Constitution, in so far as they are inconsistent with
the provisions of fundamental rights shall to the extent of that
inconsistency be void.”
• The Doctrine of Severability, which is an extension of Article 13, asserts
that where a certain section of legislation infringes or breaches
fundamental rights but is severable from the remainder of the act, the courts
will declare only that portion unconstitutional, not the entire statute.
• The concept basically states that if violative and non-violative provisions
are separated to the point that the non-violative provision may survive
without the violative provision, the non-violative provision will be
recognized as legitimate and enforceable.

The doctrine of Severability – Cases

The case of Nordenfelt v. Maxim Nordenfelt Guns and Ammunition

Company Ltd, 1894 AC 535, was one of the first to use the Doctrine of
Severability, in which the court threw down the violative section of a contract but
upheld the rest of the contract after disconnecting the violative component.
R.M.D.C v. the State of Bombay - AIR 1957 SCR 874
The court explored the law of severability in-depth, and the court established the
following principles:

• The legislature's intent is the decisive factor in evaluating whether the

legitimate sections of legislation may be separated from the invalid parts.
If the legislature had realized that the rest of the Act was illegal, it would
have enacted the valid section.
• If the lawful and invalid provisions are so intricately intertwined that they
cannot be separated, then the invalidity of a component of the Act must
result in the Act's whole invalidity. On the other hand, if they are
sufficiently different and separate that, after striking out the invalid, what
remains is a full code in and of itself, it will be upheld even if the rest is no
longer enforceable.
• Even though the lawful provisions are different and distinct from the
invalid provisions if they all constitute part of a single scheme that is meant
to be operational as a whole, the invalidity of one portion will result in the
failure of the entire scheme.
• The separability of a statute's valid and invalid provisions is not determined
by whether the law is enacted in the same section or in separate sections;
what matters is the substance of the matter, which must be determined by
examining the act as a whole and the setting of the relevant provisions
therein.
• If the remaining section of the act cannot be enforced without making
changes and adjustments, the entire statute must be declared void, since it
would otherwise constitute judicial legislation.
• It will be reasonable to consider the history of legislation, its goal, title, and
preamble in evaluating legislative intent on the matter of separability.

A.K. Gopalan v. State of Madras – AIR 1950 SCR 88

• The Supreme Court ruled that if the challenged Act violates the
Constitution, only the section that violates the Constitution would be
unconstitutional, not the entire act, and that every effort should be taken to
salvage as much of the action as possible.
• It is severable if the invalid part's deletion does not affect the essence or
structure of the legislature's goal.
• The Supreme Court of India concluded in State of Bombay v. F.N.
Balsara that the violative portions of the Bombay Prohibition Act, 1949,
 do not impact the constitutionality of the whole Act, and hence the
legislation does not need to be declared illegal.
• Sections 4 and 55 of the 42nd Constitutional Amendment Act were
deemed unlawful by the Supreme Court because they went beyond the
Constitution's amending powers, while the remainder of the Act was
upheld.
• The Tenth Schedule was maintained by the Court in Kihoto Hollohan v.
Zachillhu, however, paragraph 7 was struck down for breaching the
restrictions of Article 368 (2).

Conclusion

The notion of severability paves the path for judicial review to be used.
Individuals' basic rights are infringed upon by bylaws that are invalidated by the
courts through judicial review. When an individual claim that a piece of
legislation is infringing on his or her basic rights and seeks judicial review of the
decision, he or she has the burden of evidence for demonstrating how the law in
question has harmed his or her rights.