Doctrine of Severability – Indian Polity Notes

Part III of the Indian Constitution talks about Fundamental Rights. With the adoption of the Indian Constitution in 1950, the Fundamental Rights also came into effect.

Fundamental rights are the inherent rights available to all the citizens of India.

• These rights guarantee that every citizen of India can lead a life of dignified existence and holistic all-round development.
• The courts can strike down any law, which infringes upon the fundamental rights guaranteed by the Indian Constitution.
• But sometimes, it may happen that only some portion of the law is in violation of fundamental rights. What is to be done, in such a case?
• It is here that the Doctrine of Severability is invoked.

Article 13 made void all such laws in force in India before the commencement of the Constitution, which were inconsistent with the provisions of the Fundamental Rights.

The Doctrine of Severability is derived from the very same Article 13.

Deriving power from Article 13, the Doctrine of Severability states that if any particular provision of the impugned law is violative of the fundamental rights, and the rest of the law isn’t, only that particular provision of the law would stand void and not the entire statute.

• Hence, the Doctrine of Severability, in a way, lays down that non-violative provision is separated from the violative provision such that the non-violative provision can exist without the violative provision.
• In such a case, the non-violative provision will be upheld as valid and enforceable.

Doctrine of Severability – Important Cases

In the Nordenfelt vs Maxim Nordenfelt Guns and Ammunition Company Ltd 1876, we see one of the first uses of the Doctrine of Severability.

• In this case, one portion of the contract was violative.
• Hence, the court struck down the violative part of the contract and upheld the rest of the contract.

RMDC Vs State of Bombay

In the context of India, the Doctrine of Severability was discussed in detail in the RMDC vs the State of Bombay.

• What is the way to find out whether the valid and invalid parts of a statute can be separated?
• In order to know this, the intent of the legislature is the deciding factor. In order to find out whether the valid part of the statute can be separated from the invalid part, the intention of the legislature is the determining factor.
• What if the valid and invalid parts are inseparable for the statute’s existence? In such a case, the entire statute would become invalid.
• In a case where while the valid and invalid case are separable, but the intent of the legislature was to keep it as a part of the same scheme, the whole statute would stand invalid.
• In a case where the valid and invalid parts are separable and not part of the same intent and scheme, but making any of the parts invalid would leave the rest too weak to be valid, the whole statute would be invalidated.
• Hence, the Doctrine of Severability takes into consideration the construed meaning, as a whole of the statute, instead of any part or provision.
• The process to know the intent of the legislature behind the statute, would go through knowing the history, object, Preamble, etc.

AK Gopalan vs State of Madras

In the AK Gopalan v. State of Madras, the Court dealt with the Preventive Detention Act.

In this, the court held that Section 14 of the Preventive Detention Act was violative of Article 14 of the Indian Constitution.

While doing this, the court added that while we strike only Section 14, the objective of the Act wasn’t changed.

A similar observation was made in DS Nakara v. Union of India.

FN Balsara vs State of Bombay

The court in the FN Balsara vs State of Bombay held that while the violative provision of the Bombay Prohibition Act 1949 was struck down, the validity of the entire act is not jeopardized.

Similarly, the apex court also declared the Section 4 and 55 of the 42nd Constitutional Amendment Act to be violative, and hence struck it down. While doing so, the remaining act remained intact and valid.

Kihoto Hollohan vs. Zachillu

In Kihoto Hollohan v. Zachillu, the Supreme held the Tenth Schedule remained, while it struck down the Paragraph 7 to be violative of the Article 368 (2), which states that

An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill.

To Conclude…

With the help of Doctrine of Severability, the application of Judicial Review opens up.

Using the power of judicial review, the courts in India can invalidate any law, which infringes the fundamental rights of the individuals of the country.

While filing a petition and contending that any particular legislation is taking away their fundamental rights, it is upon him/her to provide proof as to how the impugned legislation is interfering with their rights.

The Doctrine of Severability, thus, helps keep legislators accountable to the fundamentals of the Constitution, Fundamental Rights being one of them.

Watch Detailed Explanation here

To complete UPSC Polity Notes, Click Here

Join our Official Telegram Channel HERE
Subscribe to our YouTube Channel HERE
Follow our Instagram ID HERE