Let’s read the article on the Doctrine of Severability with case laws in the Constitution of India in detail. We took notes from the book “The Constitution of India” by Dr. J. N. Pandey. This is useful for LLB, LLM, and the main examination of the judiciary for all states.
INTRODUCTION
The Constitution of India is the foundation of the nation, embodying its values, principles, and governance framework. When a part of a statute is declared unconstitutional, the question arises whether the entire statute should be declared void or only the unconstitutional part. To address this issue, the Supreme Court has devised the doctrine of severability or separability.
The doctrine of severability was thoroughly examined in the case of R.M.D.C. v. Union of India. In this case, Section 2(d) of the Prize Competition Act, which included both gambling and skill-based competitions, was involved. The Supreme Court held that the provisions of the Act were severable and struck down those related to competitions not involving skill.
ORIGIN AND ESSENCE
The Doctrine of Severability, though not explicitly mentioned in the Constitution of India, finds its roots in judicial interpretation. It is based on the principle that if part of a statute is found unconstitutional, it can be separated from the rest of the law, keeping the valid portion intact.
This doctrine is crucial because it allows the judiciary to remove unconstitutional provisions without invalidating the entire legislation. It shows judicial restraint by removing only the problematic parts of a law while maintaining the legislative intent as much as possible.
MEANING
This doctrine means that if an offending provision can be separated from the constitutional part, only the offending part is declared void, not the entire statute. Article 13 of the Constitution uses the words “to the extent of such inconsistency be void,” meaning that when some provision of the law is held to be unconstitutional, only the repugnant provisions are treated by courts as void, not the whole statute.
In A.K. Gopalan v. State of Madras, the Supreme Court declared Section 14 of the Preventive Detention Act, 1950, ultra vires and observed that “the impugned Act minus this section can remain unaffected. Removing the section will not change the nature or structure of the subject of the legislation. Therefore, declaring Section 14 as ultra vires does not affect the validity of the rest of the Act.
Similarly, in State of Bombay v. Balsara, a case under the Bombay Prohibition Act, 1949, it was observed that the void provisions do not affect the entire statute, so there is no need to declare the statute invalid.
EXCEPTION
The Doctrine of Severability has one exception. If the valid portion cannot be separated from the invalid portion without leaving an incomplete or mingled remainder, then the courts will hold the entire Act void. The primary test is whether what remains is so inextricably mixed with the part declared invalid that it cannot survive independently.
The Supreme Court observed in Romesh Thappar v. State of Madras that “where a law purports to authorize the imposition of restrictions on a Fundamental Right in language wide enough to cover restrictions both within and outside the limits provided by the Constitution and it is not possible to separate the two, the whole law is to be struck down. As long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly void.”
In such cases, whether the valid parts of a statute are separable from the invalid, the intention of the Legislature is the determining factor. Severability is a question of substance, not form, and in determining the Legislature’s intention, it is legitimate to consider the history of the legislation, the object, as well as the title and preamble. In taxation laws where taxes are imposed on subjects that are divisible in nature and some subjects are exempt from taxation, the taxation statute will not be wholly void. It can be declared void only regarding those subjects to which a constitutional exemption is attracted.
In Kihota Hollohan v. Zachithu, it was held that Section 10 of the Tenth Schedule minus para 7 remains valid and constitutional. Para 7, declared unconstitutional, is severable from the main provisions of the Tenth Schedule. The remaining provisions of the Tenth Schedule are independent of Para 7 and are complete and workable. Para 7 of the Tenth Schedule provided that the Speaker’s decision regarding disqualification shall be final and no court could examine its validity.
CONCLUSION
The Doctrine of Severability is essential in Indian constitutional law, allowing the judiciary to strike down unconstitutional parts of laws while keeping the rest intact. This careful application helps uphold the Constitution’s supremacy, protect individual rights, and ensure the rule of law.
As India continues its journey towards progress and development, the Doctrine of Severability will remain a cornerstone of legal interpretation, adapting to meet the evolving needs of society while upholding the principles enshrined in the Constitution.
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