Doctrine of Severability

The doctrine of severability means that a law is void only “to the extent of the inconsistency
or contravention” with the relevant Fundamental Right according to Article 13 of the Indian
Constitution. The above provision means that an Act may not be void as a whole, only a part
of it may be void and if that part is severable from the rest which is valid, and then the rest
may continue to stand and remain operative. The Act will then be read as ifthe invalid portion
was not there. If, however, it is not possible to separate the valid from the invalid portion,
then the whole of the statute will have to go.

2.

Doctrines of severability and eclipse

By Neeti Vaid | Views 29981
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The Fundamental rights provided to the citizens of India are prestigious and their eminence is above any of law. The
Fundamental rights in Part III of the Constitution of India have its origin in sources including England’s Bill of Rights,
the United States Bill of Rights and France’s Declaration of the Rights of Man. These rights provide certain civil liberties
to the citizens of India. There are six Fundamental rights:
Right to equality
Right to freedom
Right against exploitation
Right to freedom of religion
Cultural and educational rights
Right to Constitutional remedies
These rights if violated, punishments are prescribed for it in the Indian Penal Code.
It was necessary to know about Fundamental Rights to begin with the Doctrines.
Article 13 of the Constitution of India provides.

Laws inconsistent with or in derogation of the fundamental rights-

All laws in force in the territory of India immediately before the commencement of this constitution , in so far as they are
inconsistent with the provisions of this part, shall, to the extent of such inconsistency, be void.
The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in
contravention of this clause shall, to the extent of the contravention, be void.
In this article, unless the context otherwise requires,-
a) law includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of
India the force of law;
b) laws in force includes laws passed or made by a Legislature or other of this Constitution and not previously repealed,
notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

Both the Doctrines are in the context of Article 13 of the Constitution of India.

Doctrine of severability
It is also known as doctrine of separability. It protects our Fundamental Rights, as it is mentioned in the
clause 1) of the Article 13 of the Constitution that All laws enforce in India, before the commencement
of Constitution, in so far as they are inconsistent with the provisions of fundamental rights shall to the
extent of that inconsistency be void. But the whole law or act would not be held invalid, but only the
provisions of the law or act which are not in consistency with the Fundamental rights. This is what the
Doctrine of severability is. But it is only possible if the part which is inconsistent with the law is
separated from the whole law. If both the valid and invalid part are so closely mix up with each other
that it cannot be separated then the whole law or act will be held invalid.

In A.K. Gopalan v. State of Madras

The Supreme court held that in case of repugnancy to the Constitution, only the repugnant provision of
the impugned Act will be void and not the whole of it, and every attempt should be made to save as
much as possible of the act. If the omission of the invalid part will not change the nature or the structure
of the object of the legislature, it is severable. It was held that except Section 14 all other sections of the
Preventive Detention Act, 1950 were valid, and since Section 14 could be severed from the rest of the
Act, the detention of the petitioner was not illegal.

In State of Bombay v. F.N. Balsara

eight sections of the Bombay Prohibition Act were declared invalid, the Supreme Court said that the
portion which was invalid to the extent of fundamental rights was separable from the rest of the act.

In R.M.D.C. v. Union of India

This landmark judgment completely observed Doctrine of severability, Justice Venkatarama
Aiyar observed:
In determining whether the valid parts of a statute are separable from the invalid parts thereof, it is the intention of the
legislature that is the determining factor. The test to be applied is whether the legislature would have enacted the valid
part if it had known that the rest of the statute was invalid.
If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another, then the
invalidity of a portion must result in the invalidity of the Act in its entirety. On the other hand, if they are so distinct and
separate that after striking out what is invalid, what remains is in itself a complete code independent of the rest, then it
will be upheld notwithstanding that the rest has become unenforceable.
Even when the provisions which are valid and distinct and separate from those which are invalid, if they all form part of a
single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the
whole.
Likewise, when the valid and invalid parts of a statute are independent and do not form part of a scheme but what is left
after omitting the invalid portion is so thin and truncated as to be in substance different from what if was when it emerged
out of the legislature, then also it will be rejected in its entirety
The separability of the valid and invalid provisions of a statute does not depend on whether the law is enacted in the same
section of different sections; 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.
If after the invalid portion is expunged from the statute what remains cannot be enforced without making alterations and
modifications therein, then the whole of it must be struck down as void, as otherwise it will amount to judicial legislation.
In determining the legislative intent on the question of separability, it will be legitimate to take into account the history of
legislation, its object, the title and preamble to it.

Doctrine of Eclipse
Eclipse occurs when one object overshadows the other, so as the name suggests that Doctrine of Eclipse
is applied when any law or act violates the fundamental rights then the fundamental rights overshadows
the other law or act and make it unenforceable but not void ab initio. They can be enforced again if the
restrictions posed by the fundamental rights are removed.

The following case makes it clear-

In Bhikaji Narain Dhakras v. State of Madhya Pradesh
Section 43 of the Motor Vehicles Act, 1939 was amended by the Central Provinces and Berar Motor
Vehicles (Amendment) Act, 1947, both were pre- constitution legislations. The Amendment Act
empowered the Provincial Government to take up the entire Provincial Motor Transport Business, these
are violative of article 19(1) (g). By a Constitutional amendment of Article 19(1) (6) the State was
empowered to carry on the business to the notification issued by Government to this effect was
questioned. The Supreme Court held that the true position is that the impugned law became, for the time
being, eclipsed by the fundamental right. The effect of the Constitution Act, 1951 was to remove the
shadow and to make the impugned act free from all blemish or infirmity.

Conclusion
The fundamental rights are paramount and article 13 which has in itself the doctrine of severability and
the doctrine of eclipse protect the dormancy of the fundamental rights.

3.
Doctrine of Severability
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It is not the whole Act which would be held invalid by being inconsistent with Part
III of the Constitution but only such provisions of it which are violative of the
fundamental rights
It is not the whole Act which would be held invalid by being inconsistent with Part III of
the Constitution but only such provisions of it which are violative of the fundamental
rights, provided that the part which violates the fundamental rights is separable from that
which does not isolate them. But if the valid portion is so closely mixed up with invalid
portion that it cannot be separated without leaving an incomplete or more or less
mingled remainder the court will declare the entire Act void. This process is known as
doctrine of severability or reparability.

The Supreme Court considered this doctrine in A.K. Gopalan v. State of Madras,
A.I.R. 1950 S.c. 27 and held that the preventive detention minus section 14 was valid as
the omission of the Section 14 from the Act will not change the nature and object of the
Act and therefore the rest of the Act will remain valid and effective. The doctrine was
applied in D.S. Nakara v. Union of India, AIR 1983 S.C. 130 where the Act remained
valid while the invalid portion of it was declared invalid because it was severable from
the rest of the Act. In State of Bombay v. F.N. Balsara,A.I.R.l.951 S.C. 318 it was held
that the provisions of the Bombay Prohibition Act, 1949 which were declared as void did
not effect the validity of the entire Act and therefore there was no necessity for declaring
the entire statute as invalid.

The doctrine of severability has been elaborately considered by the Supreme Court
in R.M.D.C. v.Union of India, AIR 1957 S.c. 628, and the following rules regarding the
question of severability has been laid down :
(1) The intention of the legislature is the determining factor in determining whether the
valid paIt of a statute are severable from the invalid parts.
(2) If the valid and invalid provisions are so inextricably mixed up that they cannot be
separated from the another, then the invalidity ofa portion must result in the invalidity of
the Act in its entirety. On the other hand, if they are so distinct and separate that after
striking out what is invalid what remains is itself a complete code independent of the
rest, then it will be upheld notwithstanding that the rest had become unenforceable.
(3) Even when the provisions which are valid, are distinct and separate from those which
are invalid if they form part of a single scheme which is intended to be operative as a
whole, then also the invalidity ofa part will result in the failure of the whole.
(4) Likewise when the valid and invalid parts of a Statute are independent and do not
form part of a Scheme but what is left after omitting the invalid portion is so thin and
truncated as to be in substance different from what it was when it emerged out of
legislature, then also it will be rejected in its entirety.
(5) The severability of the valid and invalid 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.
(6) If after the inval id portion is expunged from the Statute what remains cannot be
enforced without making alterations and modifications therein, then the whole of it must
be struck down as void as otherwise it will amount to judicial legislation.
(7) 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

4.

Doctrine of Severability
By
 Diganth Raj Sehgal
 -
June 25, 2019
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This article is written by  Heba Ali, a BBA LLB student at Symbiosis Law
School, Noida. This article discusses the doctrine of severability and its
features in detail.

Basis Of Doctrine
This doctrine of severability is also known as the doctrine of separability. 
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 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 honourable Supreme Court of India has used this doctrine in the case
of A.K Gopalan vs 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 vs 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 vs 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 Minerva Mills vs
Union of India  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 Vs 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 vs Union of India and the rules regarding severability
was laid down in this case-

1. The intention of the legislature behind this is the 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, 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 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 centred
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 vs. Planned Parenthood of N. New Eng., here also the court had
laid down the three principles of severability.

In another case which is Cardegna. Vs 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
honourable Supreme Court of gave the decision and declared that the whole
of 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 incontext of Indian Constitution then it
will be the fundamental rights which is guaranteed by the Constitution. So,
this doctrine will work especially when subjected to this part which is Part III
of the Indian Constitution.