Meaning of the doctrine
The doctrine of severability is also known as doctrine of separability. It is given under Article 13 of the Constitution of India. In simple terms, it says that if a certain provision of any Act is in contradiction or violation of the fundamental rights given to the citizens under the Constitution of India, then this doctrine will determine the validity of the provision. The word ‘severe’ means to separate a part of a whole thing. This doctrine implies that, in case of a violative provision, if it is severable from the entire Act, then, only the said provision will be held void and not the entire Act. There can be two cases arising out of this, first, when a good and bad provision are combined together, and the good provision is independent of the bad, in other words, it can be applied or interpreted individually without considering the existence of the bad provision, then it is said to be severable from each other. The good provision will be held valid and the bad, invalid. The second case can be observed when a provision is used for both, legal and illegal purposes, in which case, it will be held void completely even if it is used for legal purposes. A severability clause is also used in few contracts which clarify that all the terms of the contract are independent of each other and if one or more is declared void, the rest of the contract will be enforced as it is.
The doctrine of severability acts as a savior and shield to protect the Part III of the Indian Constitution and prevent its violation.
Constitutional Validity of the Pre-Independence laws
The Constitution validates all the pre-independence laws and legislations, hence, if any provision or Act contravenes the fundamental rights, then they shall be held void. It is important to keep in mind that all the laws, amendments that are to take place in the future, should be consistent with the fundamental rights and the Constitution for them to be held valid and enforceable.
Features of the Doctrine
The most important feature of the doctrine is that it broadens the scope of judicial review done by the various courts. It enables the Supreme Court and the High Courts to decide and interpret various laws and its validity. This doctrine forms a uniform system of checks and balances of the provisions of laws and any law repugnant to the Constitution will be easily identifiable and amended.
Who can be the complainant?
A person who is aggrieved or affected by the unconstitutionality of the law can be the complainant before a court of law. As seen earlier, the doctrine of severability is a savior of the fundamental rights conferred by the Constitution, hence, if a person is not entitled to any fundamental rights, he is not entitled to raise an issue about any inconsistent laws. The burden of proof lies completely with the complainant, as he has come across the inconsistencies and has faced repercussions of the same. This has been upheld in the case of Chiranjit Lal Chowdhary V. Union of India and ors[1]. It is also held in the case of Nain Sukh Das V. The State of UP[2] that if a person receives any benefit because of the Act or provision, then he cannot challenge its validity in any case.
Effects of the Application
The decision of the Supreme Court of India is binding on all the courts and the same is enshrined under Article 141 of the Constitution of India. If the Court decides that a provision or statute is void, then the decision shall be considered as a precedent by all the lower courts. The Courts shall read the statute as if the severed part never existed in the first place. There are various landmark judgments which have used this doctrine as well as which clarify this doctrine.
1. R.M.D.C. V. Union of India[3] is considered as one of the most important judgments on Doctrine of Severability. The Supreme Court held that this doctrine lies on a presumed intention that if a part of a statue is deemed void, it should not affect the validity of the rest of it. It was also laid down that the intention of the legislature will help to decide the severability of the valid and void provisions. The severability of the clauses does not depend on whether the clauses are in the same section or not.
2. In the case of State of Bombay V. F. N. Balsara[4], it was held that the unconstitutional provisions of the Bombay Prohibition Act, 1949 were severable from the rest of the Statute and hence, the rest of the Act was considered valid.
3. In the case of A.K. Gopalan V. State of Madras[5], Section 14 of the Preventive Detention Act, 1950 contravened Article 14 of the Constitution and it did not change the object of the Act, so it was severable and only Section 14 was held void.
Conclusion
This doctrine is thus, very essential and consequential to decide the validity of Statutes. The process of law making and its implementation is not an easy job and hence, it is very risky to completely repeal an enactment because of certain inconsistent contents. This doctrine helps in avoiding this risk and only amends, repeals or deletes the unconstitutional elements and provisions in the Act. Only when the provisions cannot be severed from the Act, the entire Act is deemed void and repealed in its entirety.
[1] AIR 1951 SC 41
[2] 1953 AIR 384
[3] AIR 1957 SC 628
[4] AIR 1951 SC 318
[5] AIR 1950 SC 27
“Article by Ms Sanchita Pathak in December 2020 under internship of Adv Shankarlal RahejaThe Views herein are personal and while careful attention has been given to ensure that the information is accurate and assume no liability or responsibility for any reliance thereon. This article is merely information and knowledge sharing activity and is not a substitute to legal advice. We shall not be liable for any loss or damage caused due to any reliance thereof”.
