Doctrine of Severability

The doctrine of severability is a fundamental legal principle that plays a crucial role in addressing the constitutionality of laws when some provisions are inconsistent with the Fundamental Rights guaranteed by the Constitution. It is a guiding framework used by courts to determine the fate of a statute when certain parts of it violate constitutionally protected rights.

In this legal concept, the court seeks to strike a delicate balance between upholding the validity of the law’s constitutionally sound aspects and removing the portions that contradict the Fundamental Rights. The primary objective is to protect citizens’ rights while ensuring the overall efficacy of the statute.

Throughout the evolution of Indian constitutional jurisprudence, several landmark cases and constitutional amendments have shaped the understanding and application of the doctrine of severability. The doctrine of severability is doctrine has significant implications for the functioning of the Indian legal system and serves as a powerful tool to safeguard the supremacy of the Constitution.

Meaning of Doctrine of Severability

The doctrine of severability deals with situations when some parts of a law or statute are found to be unconstitutional due to a conflict with fundamental rights. In such cases, only the conflicting or repugnant part of the law will be considered void by the courts, not the entire statute. It is also called the doctrine of separability,

In simpler terms, if a specific part of a law violates the Constitution but can be separated from the rest of the law without affecting its functionality, only that problematic part will be removed, not the entire law.

Another aspect of the doctrine of severability is that if a law combines good and bad provisions using words like ‘and’ or ‘or,’ and the enforcement of the good provision does not depend on the bad one, they are considered severable. The good provision will be upheld and enforced even if the bad one cannot or does not exist. On the other hand, if there’s a provision that can be used for both legal and illegal purposes, it is invalid and cannot be allowed even for legal purposes.

In the doctrine of severability, the entire Act is not declared invalid for being inconsistent with Part 3 of the Indian Constitution, which grants fundamental rights to the citizens. Only those parts of the Act that violate fundamental rights are considered inconsistent. The court separates the violative parts from the non-violative ones. If it is possible to separate the valid portion from the invalid portion, then only the violative part is declared void while the rest remains in effect.

However, the court will declare the entire Act as void if the valid and invalid portions are so intertwined that they cannot be separated. This legal process is known as the doctrine of severability. It ensures that only the unconstitutional parts of the Act are struck down while preserving the valid and constitutional aspects.

Landmark Cases on Doctrine of Severability

The honourable Supreme Court of India has applied the doctrine of severability in various cases:

A.K Gopalan vs State of Madras: The court held that if the preventive detention provision (section 14) was removed, the rest of the Act would remain valid and effective. The violative part was separable from the valid part.

D.S Nakara vs Union of India: The court declared the inconsistent portion of the Act as invalid, as it could be easily separated from the valid part, leaving the rest of the Act intact.

State of Bombay vs F.N Balsara: In this case, the entire Act was declared void but did not affect the other parts of the law. Only the violative provision was struck down.

Minerva Mills vs Union of India: The court struck down section 4 of 55 of the 42nd Amendment Act, 1976, as it exceeded the amending power of Parliament. However, the remaining provisions of the Act were upheld and considered valid.

Kihoto Hollohan vs Zachillhu: The court declared paragraph 7 of the Tenth Schedule (inserted by the 52nd Amendment Act of 1985) unconstitutional. However, the rest of the Tenth Schedule, excluding paragraph 7, was upheld and considered constitutional.

In all these cases, the doctrine of severability was used to ensure that only the unconstitutional parts of the laws were struck down, leaving the valid portions unaffected and in force.

The Supreme Court of India considered the doctrine of severability in the case of R.M.D.C vs Union of India, and the following rules regarding severability were established:

• The court intends to determine whether the invalid portion of a statute can be separated from the valid part.
• If the valid and invalid parts cannot be separated from each other, the invalidity of a portion of the statute will lead to the invalidity of the entire Act.
• Even if the invalid portion is separate from the valid portion, the court has the power and duty to declare the law inconsistent with the Constitution of India unconstitutional.
• The power of judicial review, allowing the courts to determine the constitutionality of a law, is based on the principle that the Constitution represents the will of the people. At the same time, statutes are creations of elected representatives. When a statute contradicts the Constitution, the will of the people prevails.
• The Constitution grants the judiciary the authority to annul acts of the executive and judiciary that violate the Constitution. This power is not vested in the legislature, which is accountable to the people.
• In assessing the constitutionality of a provision, the court examines whether the law complies with the Constitution and may consider whether it contravenes various articles enshrined in the Constitution.

Features of Doctrine of Severability

Applicability

Article 13(1) applies to any laws inconsistent with Fundamental Rights. It prohibits the Legislatures from enacting laws that violate the Fundamental Rights of the people. High Courts and the Supreme Court can review statutes believed to infringe upon Fundamental Rights.

Nature of the Disputed Provision

For the disputed provision to be considered void, it must be shown to be inconsistent with the Fundamental Rights. If this is not proven, the doctrine of severability would not apply.

Severability

If the disputed provision is inconsistent with Fundamental Rights, only that specific provision will be considered void. The rest of the statute will remain in effect and enforceable. However, suppose the disputed provision cannot be separated from the rest of the statute without making the whole law inoperable or significantly less effective. In that case, the entire statute may be struck down by the court.

The Burden of Proof

The person who brings the matter to the court and alleges that a statute violates Fundamental Rights has the burden of proving it. They must demonstrate, based on the rationale of the case of Chiranjit Lal Chowdhury v. The Union of India & Ors., that their Fundamental Rights have been violated. They can also show that they could be subject to immediate danger due to a statute or law coming into force.

What Happens if The Supreme Court Declares Any Law as Unconstitutional

When the Supreme Court declares any law unconstitutional, it has significant legal implications:

Binding on all Courts: According to Article 141 of the Indian Constitution, the decision of the Supreme Court is binding on all courts within India’s territory. This means that the judgment declaring a law unconstitutional becomes a precedent and must be followed by all other courts in the country.

Judgment in Rem: The Supreme Court’s declaration of a law as unconstitutional acts as a “Judgment in rem,” which means it applies to everyone in the country, not just the parties involved in the specific case. This ruling becomes a guiding principle for all future cases related to the same law.

Precedent for Similar Cases: Any person seeking relief in any court of India against the same law doesn’t need to prove again that the law is unconstitutional. The Supreme Court’s decision already establishes it as unconstitutional, and other courts must accept it.

Partial Invalidation: If the Supreme Court partially invalidates a law, the invalidated part is treated as if it never existed. In other words, it becomes null and void from the beginning, and the rest of the law continues to be in force.

Does An Unconstitutional Law Remain Operative As Regards Non-Citizens?

In the case of Keshavananda Bharati v. State of Kerala, it was observed that pre-constitution laws covered under Article 13(1) of the Constitution became void at the commencement of the Constitution if they were inconsistent with a fundamental right. 

However, this voidness was limited to the extent of the inconsistency with the fundamental right. If a fundamental right applied only to citizens (e.g., a right under Article 19(1)), then the invalidity of the law would benefit citizens only. As a result, even though the law was inconsistent with a fundamental right, it would still be applicable and enforceable against non-citizens.

In the case of C.R.H. Ready Money Ltd. v. State of Bombay, the court addressed a crucial distinction between a law being deemed ultra vires of the legislature and a law being invalid due to contravening fundamental rights. In the first case, the law is considered null and void from its inception, and there is no way to cure its defects. 

In the second case, if a competent legislature passes a law that violates fundamental rights, it may still be valid concerning those fundamental rights guaranteed only to citizens while being invalid concerning non-citizens. Therefore, it cannot be said that the status of a law passed by a competent legislature infringing on fundamental rights is the same in all cases.

Is Any Law Excluded From Article 13(2)?

It is well-established that any law passed by the Parliament or a State Legislature under the powers conferred by Articles 245-246 is subject to Article 13, which deals with the doctrine of the invalidity of laws inconsistent with Fundamental Rights. This includes:

(i) Taxing statutes

(ii) Laws whose making is provided for by specific provisions of the Constitution, such as Articles 105(3), 194(3), and 309.

However, the Supreme Court has held that if a law is made under a specific Article of the Constitution other than Articles 245-246, it should not be construed as falling under Article 13(2). This is to prevent conflict with other independent provisions of the Constitution, which have equal standing with Article 13. For instance, the Proclamation of Emergency under Articles 358-359 has been excluded from the purview of Fundamental Rights by the Supreme Court, overturning its earlier decisions.

The Constitution itself explicitly excludes certain laws from Article 13’s scope, namely those falling under Articles 31A-31C and the 9th Schedule. These exclusions have been added to the Constitution through Amendment Acts.

Constitution Amending Act

There has been a controversy regarding whether an amendment to the Constitution made under Article 368 must conform to the requirements of Article 13(2) as a “law” under Article 13(3).

Initially, in Shankari Prasad v. Union of India and Sajjan Singh v. State of Rajasthan, the Supreme Court held that an Amendment Act passed under Article 368 is not a “law” within the meaning of Article 13(2). However, this view was overruled by the majority decision in Golak Nath v. State of Punjab.

The majority decision in Golak Nath’s case was later superseded by the Constitution (24th Amendment) Act, 1971, which inserted clause (4) in Article 13 and clause (1) in Article 368. This amendment stated that an amendment of the Constitution made under Article 368 would not be considered “law” under Article 13. It also provided that the validity of a Constitution Amendment Act shall not be questioned because it takes away or affects a fundamental right. This amendment was upheld by the Supreme Court in Keshavananda Bharati v. State of Kerala, where it overruled its earlier decision in Golak Nath’s case.

The Constitution (42nd Amendment) Act, 1976 also attempted to settle the issue by inserting clause (4) in Article 368, stating that no amendment of the Constitution shall be questioned in any court on any ground. However, in Minerva Mills Ltd. v. Union of India, the Supreme Court held that section 55 of the 42nd Amendment Act, which inserted these clauses, was void as it sought to destroy a basic feature of the Constitution.

Subsequent decisions have clarified that even an Act for the amendment of the Constitution passed under Article 368 is not immune from judicial review. Its validity may be questioned on procedural ultra vires (contravention of procedural requirements of Article 368) or if it damages the “basic structure” of the Constitution. The doctrine of basic structure was established by the Supreme Court in Keshavananda Bharati’s case on 24th April 1973, and it applies to Amendment Acts passed after that date.

Conclusion

The doctrine of severability is an important legal principle used to address the constitutionality of statutes when some provisions are found to be inconsistent with the Fundamental Rights guaranteed by the Constitution. When a specific provision of a statute violates fundamental rights, the court can declare only that particular provision void, leaving the rest of the statute intact and enforceable. The court’s intention is to separate the valid parts from the invalid ones to preserve the constitutionally sound aspects of the law.

However, suppose the invalid provision is so intertwined with the rest of the statute that they cannot be separated without rendering the entire law inoperable. In that case, the court may strike down the entire statute. The burden of proof lies with the party challenging the law’s constitutionality, and they must demonstrate that their fundamental rights have been violated.

Over the years, several landmark cases and constitutional amendments have shaped the understanding of the doctrine of severability in India. While the Constitution explicitly excludes certain laws from Article 13’s purview, amendments and judicial decisions have clarified that even constitutional amendments are not immune from judicial review, especially if they damage the basic structure of the Constitution.