Author: Mayur Shrestha

Student at Presidency University

KEY TAKEAWAYS

• To learn about constitutional provisions and articles relevant to the doctrine of severability.
• To understand the constitutionality and features of the doctrine of severability.
• To know about the wide applicability of the severability clause.
• To learn about various landmark judgements that shaped the doctrine of severability.
• To analyze criticisms about the doctrine.

INTRODUCTION

The doctrine of severability holds a significant place in Indian constitutional law, providing a mechanism to salvage constitutional provisions when certain parts are deemed unconstitutional. This legal principle is instrumental in upholding the integrity of the constitution while eliminating the unconstitutional elements.

The doctrine of severability, also referred to as the doctrine of separability, is a pivotal principle entrenched in constitutional law. This doctrine becomes particularly pertinent when certain provisions of a statute are deemed unconstitutional due to their inconsistency with fundamental rights. The phrase “to the extent of the inconsistency or contravention” serves as a clarion call in legal contexts, elucidating that in such instances, only the offending provision shall be nullified by the courts, rather than the entire statute.

In essence, the doctrine of severability operates on the premise that if a specific provision within a statute violates constitutional limitations, but can be extricated from the remainder of the legislation without impairing its functionality, only the offending provision will be declared void. The judicious approach prevents the unnecessary nullification of an entire statute, allowing the valid components to remain in force.

The doctrine is particularly significant, where the doctrine recognizes that if a provision is susceptible to both legal and illegal applications, it becomes invalid. Even if the provision serves a legal purpose, its potential for misuse renders it impermissible. The doctrine, therefore, serves as a nuanced tool for courts to discern between provisions that align with constitutional principles and those that transgress them.

BASIS

The doctrine finds its roots in various constitutional provisions, including Article 13, which deals with the laws inconsistent with or in derogation of the fundamental rights, and Article 14, guaranteeing equality before the law

It is vital to underscore that the doctrine of severability does not entail the wholesale invalidation of an entire act. Instead, it meticulously targets and eliminates only those sections that violate fundamental rights. This ensures that the constitutionality of specific provisions does not jeopardize the entire legislative framework. However, if the valid and invalid portions are so intricately intertwined that separation becomes unfeasible, the court may be compelled to declare the entire act void, a process encapsulated by the doctrine of severability.

In essence, this legal doctrine embodies a delicate equilibrium between upholding the rule of law and preserving legislative intent. By selectively excising unconstitutional elements, the doctrine ensures the continued efficacy of legislative frameworks while upholding the sanctity of constitutional principles. This ensures that the judiciary plays a constructive role in upholding the rule of law and constitutional values.

CONSTITUTIONAL PROVISIONS/ARTICLES

The doctrine finds its roots in various constitutional provisions, including Article 13, which deals with the laws inconsistent with or in derogation of fundamental rights, and Article 14, guaranteeing equality before the law. Among these, Article 13 and Article 14 stand out as a pivotal pillar upon which the doctrine of severability is built.

Article 13 of the COI holds immense significance in the context of the doctrine of severability. It primarily deals with laws that are inconsistent with or in derogation of fundamental rights guaranteed under Part III of the Constitution. Article 13(1) explicitly states that any law that contravenes fundamental rights shall be void to the extent of such inconsistency. This provision serves as a constitutional safeguard against legislative encroachment on fundamental rights, ensuring that laws are in conformity with the principles enshrined in the Constitution.

Furthermore, Article 13(2) extends the scope of judicial review by empowering the judiciary to declare void not only laws but also any executive or administrative actions that violate fundamental rights. This wide interpretation of Art.13 reinforces the judiciary’s authority to uphold the supremacy of the constitution and strike down unconstitutional provisions.

In the application of the doctrine of severability, article 13 serves as a foundational principle by providing the constitutional basis for scrutinizing the validity of laws. When a statute is challenged for violating fundamental rights, courts rely on Art.13 to assess the constitutionality of its provisions. If certain sections of the law are found to be unconstitutional, the doctrine of severability allows courts to selectively invalidate those provisions while preserving the remaining parts that are in conformity with the constitution.

Additionally, Art. 14 of the Constitution guarantees equality before the law and equal protection of laws to all citizens. This fundamental right prohibits discrimination and arbitrary treatment by the state. The doctrine of severability is closely aligned with Art.14 as it ensures that laws are applied uniformly and without discrimination. When a provision of a statute is found to be discriminatory or arbitrary, courts may use the doctrine of severability to remove such provisions while upholding the overall legality of the law.

CONSTITUTIONALITY AND FEATURES OF THE DOCTRINE OF SEVERABILITY

The constitutionality of the doctrine of severability has been firmly established by the judiciary, reflecting its critical role in maintaining the integrity of the constitutional framework. Through various judgements and interpretations, the courts have underscored the significance of this legal principle in upholding constitutional values and ensuring the effective functioning of the legislative process.

Article 13 of the Constitution, which declares any law inconsistent with or in derogation of fundamental rights as void, forms the constitutional basis for the application of the doctrine. By allowing courts to sever unconstitutional provisions from statutes, the doctrine of severability enables the judiciary to fulfill its constitutional duty of safeguarding fundamental rights and ensuring the greatness of the Constitution.

Furthermore, the doctrine of severability is in harmony with the overarching objectives of the Indian Constitution, including justice, equality, and the rule of law. By preserving the validity of non-offending portions of legislation while nullifying unconstitutional elements, the doctrine serves to uphold constitutional validity and prevent the entire statute from being invalidated. This approach reflects a judicious balance between protecting constitutional rights and respecting legislative intent, thereby promoting legal certainty and stability within the legal system.

The Indian judiciary has reaffirmed the constitutionality of the doctrine of severability emphasized the importance of salvaging valid portions of legislation to ensure the continued functioning of the legal framework while simultaneously striking down unconstitutional provisions. This approach not only upholds the constitutional mandate but also fosters confidence in the judicial process by demonstrating a commitment to fairness equity, and the rule of law.

• Key features

The doctrine of severability is multifaceted in nature and its strength is in preserving the constitutional fabric of the country. One of the primary features of the doctrine is its role in preserving constitutional validity. By allowing courts to separate valid provisions from unconstitutional ones, the doctrine ensures that the integrity of the Constitution is upheld, and laws remain consistent with constitutional principles.

Additionally, the doctrine of severability possesses the unique ability to distinguish between valid and invalid provisions within a statute. This analytical approach enables courts to surgically remove unconstitutional clauses while preserving the remainder of the legislation, thus preventing the entire law from being invalidated unnecessarily.

Moreover, the doctrine promotes legislative intent by removing unconstitutional clauses that may undermine the purpose and objectives of the law. By exercising these offending provisions, the doctrine ensures that the legislative intent is upheld, and the statutory framework remains coherent and effective.

APPLICABILITY

The doctrine of severability has a broad applicability across various legal contexts, spanning from statutes and legislative provisions to contractual agreements. Its application ensures that only the unconstitutional parts of a law or agreement are rendered void, while the remainder retains its validity and enforceability. The versatility underscores the doctrine’s significance in preserving legal certainty, upholding constitutional principles, and promoting the rule of law.

In the realm of statutes and legislative provisions, the doctrine of severability plays a crucial role in ensuring that laws remain in compliance with the constitution of India. When a statute contains provisions that are deemed unconstitutional, courts can utilize the doctrine to isolate and nullify those specific provisions while allowing the rest of the law to remain operative. This prevents the entire statute from being struck down, thereby preserving legislative intent and continuity in governance. Article 13 of the Constitution, which declares laws inconsistent with fundamental rights as void, provides the constitutional basis for the application of the doctrine in this context.

Moreover, the doctrine of severability extends its reach to contractual agreements, where it serves as a mechanism for salvaging agreements tainted by unconstitutional clauses or provisions. In contractual disputes, if a particular clause is found to contravene constitutional principles or public policy, courts may invoke the doctrine to serve the offending clause while upholding the validity of the remaining agreement. This ensures that contractual relationships are not unduly invalidated due to isolated legal deficiencies, thereby promoting fairness and equity in contractual dealings.

The applicability of the doctrine of severability is not limited and contracts but extends to various other legal instruments and arrangements. For instance, administrative regulations, by-laws, and executive orders may also be subject to scrutiny under the doctrine, ensuring that administrative actions remain consistent with constitutional norms. Additionally, the doctrine can be invoked in the interpretation of judicial precedents and legal doctrines, where conflicting or unconstitutional elements may need to be severed to maintain coherence and consistency in legal reasoning.

Thus, playing a pivotal role in shaping the legal landscape and ensuring adherence to constitutional principles across a diverse range of legal contexts.

GENERAL PRINCIPLES

The doctrine of severability, a fundamental principle guiding legal interpretation, delineates the treatment of statutes containing both valid and invalid provisions. Central to this doctrine is the principle of salvaging the valid aspects of legislation while exercising the invalid portions. This principle is particularly pertinent when a statute’s validity hinges on the separation of its lawful and unlawful components.

One of the primary principles underlying the doctrine of severability is the examination of legislative intent. Courts must scrutinize the legislative history, purpose, and objectives behind the enactment of a statute to ascertain the lawmaker’s intent. By understanding the underlying rationale behind the law, courts can determine which provisions are essential to achieve the legislative purpose and which are ancillary. This examination of legislative intent helps in identifying the unconstitutional elements that may undermine the overall purpose of the law. However, this application is contingent upon the clear legislative intent and the demonstrable public benefit of severance.

Moreover, the doctrine is not confined to statutes alone but extends to decisions made by courts and quasi-judicial bodies. In essence, it allows for the surgical removal of objectionable elements from legal pronouncements, ensuring that the integrity of the law is preserved while eliminating unconstitutional aspects. This process, far from constituting judicial overreach, aligns with the imperative of upholding constitutional principles.

Thus, if severing the unconstitutional elements would fundamentally alter the nature or purpose of the law, courts may be reluctant to apply severability.

Furthermore, the doctrine of severability is guided by the principle of judicial restraint. Courts should exercise caution and restraint in severing unconstitutional elements from statutes, avoiding judicial activism or overreach. This doctrine should be applied sparingly and only when necessary to uphold constitutional principles and preserve the rule of law. Judicial intervention should be guided by a respect for the separation of powers and deference to the legislature’s role in enacting laws.

CASE LAWS THAT LAID DOWN THE FOUNDATION FOR THE DOCTRINE OF SEVERABILITY

• R.M.D. CHAMARBAUGWALA V. UNION OF INDIA, 1957 AIR 628: –

In this seminal case, the doctrine of severability was affirmed by the Supreme Court. The petitioner challenged the Prize Competitions Act, which contained both valid and invalid provisions. The Court, in its judgement, applied the doctrine of severability and struck down the unconstitutional part while upholding the remaining provisions.

Furthermore, the judgement in R.M.D. Chamarbaugwala laid down an important precedent regarding the application of the doctrine of severability in Indian jurisprudence. It established a framework for courts to follow when addressing constitutional challenges to legislation, emphasizing the importance of preserving valid provisions while addressing unconstitutional elements.

Conclusively the R.M.D. Chamarbaugwala case serves as a landmark decision that not only affirmed the doctrine of severability but also provided valuable guidance on its application in Indian constitutional law. Through this judgement, the Indian judiciary demonstrated its role as a guardian of constitutional principles and ensured that legislative enactments adhere to the fundamental rights enshrined in the Constitution.

• STATE OF BOMBAY V. F.N. BALSARA, 1951 SC 318: –

This case involved the Bombay Prohibition Act, where certain provisions were challenged on the grounds of violating fundamental rights. The Supreme Court, in its decision, emphasized that only the offending portions of the law should be declared void, and the rest can continue to operate. This laid the groundwork for the application of the doctrine of severability.

In its decision, the Supreme Court of India carefully examined the challenged provisions of the Bombay Prohibition Act considering the constitutional principles enshrined in the constitution.

The judgement laid the basic groundwork for the application of the doctrine of severability in Indian Constitutional law. By endorsing the principle that unconstitutional provisions within a statute can be severed from the rest of the law, the Supreme Court upheld the integrity of the legislative process while ensuring compliance with constitutional norms. The approach allowed the court to strike a balance between upholding fundamental rights and preserving legislative intent. This case also underscored the significance of judicial review in safeguarding constitutional rights and principles. By endorsing the doctrine of severability, the court provided a mechanism through which unconstitutional provisions could be addressed without invalidating the entire statute, thereby promoting legal certainty and stability.

• KIHOTO HOLLOHAN V. ZACHILLHU, 1992 SCR (1) 686: –

This case dealt with the constitutional validity of the Tenth Schedule of the Constitution, commonly known as the Anti-Defection Law. While not directly related to the doctrine of severability, the Supreme Court’s decision reaffirmed the principle of severability by upholding certain parts of the Tenth Schedule and striking down others.

In its judgement, the Supreme Court indirectly reiterated the principle of severability by selectively enforcing valid parts of the Tenth Schedule while invalidating unconstitutional provisions. This approach allowed the court to uphold the integrity of the Anti-Defection Law while ensuring compliance with constitutional principles.

While not explicitly invoking the doctrine of severability, the Court’s decision in Kihoto Hollan v. Zachillhu underscored the importance of preserving reaffirmed the judiciary’s role in safeguarding the constitutional framework and promoting the rule of law.

In conclusion by striking a balance between the objectives of the Anti-Defection Law and constitutional safeguards, the court provided clarity on the parameters within which legislative enactments must operate.

• UNION OF INDIA V NAVEEN JINDAL & ANR, AIR 2004 SC 1559: –

It is a significant case in Indian constitutional law that dealt with the constitutional validity of certain provisions of the Companies Act, 1956, in this case, the Supreme Court was tasked with determining the constitutionality of specific provisions of the Companies Act that were challenged by the respondents.

In its judgement, the Supreme Court conducted a thorough examination of the challenged provisions of the Companies Act in light of the constitutional principles enshrined in the Constitution. The Court meticulously analyzed the constitutional validity of each provision, considering factors such as the legislative intent, the intent, the impact on fundamental rights, and the overall purpose of the law.

Applicability the doctrine of severability, the Supreme Court selectively upheld the constitutionality of some provisions of the companies act, while striking down others that were found to be unconstitutional or in violation of fundamental rights. By applying the doctrine of severability, the Supreme Court reaffirmed its commitment to upholding the rule of law and protecting constitutional rights. The Court’s decisions demonstrated a judicious balance between respecting legislative intent and safeguarding fundamental rights, thereby promoting legal certainty and stability within the corporate regulatory framework.

Furthermore, the judgement in this case contributed to the jurisprudence on the application of the doctrine of severability in Indian Constitutional Law. It provided valuable guidance on the parameters within which courts should assess the constitutionality of legislative enactments and the circumstances under which severability may be applied.

• I.R. COELHO V. STATE OF TAMIL NADU, 2007 2 SCC 1: –

In this landmark instance that addressed the validity of laws included in the Ninth Schedule of the constitution. The 9^th Schedule provides protection to laws from judicial review under Article 13(B), shielding them from constitutional scrutiny. However, in I.R. Coelho v. State of Tamil Nadu, the Supreme Court grappled with the question of whether laws placed in the 9^th schedule could be immune from judicial review if they violated the basic structure of the constitution.

The court indirectly addressed the principle of severability in the context of the basic structure doctrine. While the focus of the case was on the validity of laws placed in the 9^th schedule, the Court’s judgement indirectly emphasized the principle of severability by suggesting that even laws shielding by the 9^th might be subject to review if they violate the basic structure of the constitution.

The Supreme Court, in its judgement, upheld the basic structure doctrine and ruled that laws placed in the 9th Schedule are not immune from judicial review if they violate the basic structure. This decision affirmed the Court’s authority to review and strike down laws, even if they are included in the 9th Schedule if they undermine the core principles of the constitution.

This instance represented the significant development in Indian constitutional law, particularly regarding the relationship between the basic structure doctrine and the 9^th schedule.

CRITICISMS AND EXCEPTIONS OF THE DOCTRINE OF SEVERABILITY

While the doctrine of severability is widely recognized and applied in Indian constitutional jurisprudence, it is not without criticism and exceptions. Here are some criticisms and exceptions associated with it –

Firstly, the doctrine necessitates that courts discern the hypothetical legislative intent behind a statute, contemplating whether lawmakers would have proceeded had they foreseen constitutional objections. However, the legislature typically enacts statutes without anticipating constitutional challenges to specific provisions. Consequently, courts are tasked with a speculative endeavor, extrapolating intent from a vacuum of evidence, potentially diverging from the genuine legislative purpose.

Secondly, severability empowers courts to modify statutes, potentially encroaching upon the legislative domain. By exercising or altering provisions, courts tread a fine line between interpreting laws and engaging in legislative functions, raising concerns about judicial activism and the separation of powers.

The subjectivity could lead to inconsistency and unpredictability in judicial decisions, undermining the rule of law. There are instances where certain provisions of a statute are so integral to its functioning that they cannot be severed without rendering the law ineffective or meaningless. In such cases, the doctrine of severability may not apply, and courts may be compelled to strike down the entire statute.

Moreover, the application of severability broadens the scope of legal challenges beyond the petitioner’s original intent. This expanded review can trigger concerns regarding locus standi, as petitioners may lack standing to challenge the statute in its entirety. This departure from the general principle undermines the requirement for plaintiffs to establish standing for each challenged provision, potentially skewing the balance of legal proceedings.

The doctrine of severability may also have implications for legal drafting. Lawyers and legislators may need to consider the potential severability of provisions when drafting laws to minimize the risk of provisions being struck down by courts. This could add complexity and uncertainty to the legislative process.

In conclusion, while the doctrine of severability is a valuable tool for preserving constitutional validity and upholding the rule of law, it is not without its criticisms and exceptions.

DIFFERENCE BETWEEN DOCTRINE OF SEVERABILITY AND DOCTRINE OF ECLIPSE:

The distinction between the doctrine of severability and the doctrine lies in their respective approaches to addressing the constitutionality of laws or provisions. While both doctrines deal with situations where a law or provision conflicts with the Constitution, they differ in their implications for the validity and enforceability of the challenged legal provisions.

The doctrine of severability operates on the principle that when a law contains both valid and invalid provisions, the unconstitutional parts can be surgically removed, leaving the remaining valid portions intact and enforceable. This approach aims to salvage the constitutional validity of the law by preserving its valid elements while discarding those that are incompatible with the constitution. Article 13 of the Constitution of India, which declares any law inconsistent with or in derogation of fundamental rights as void to the extent of such inconsistency, provides the legal basis for the doctrine of severability.

On the other hand, the doctrine of eclipse deals with situations where a law or provision is inconsistent with the constitution, rendering it temporarily inoperative or “eclipsed” by the constitutional provisions. Unlike severability, where unconstitutionality parts are permanently removed, the doctrine of eclipse suggests that the affected law or provision may regain validity with subsequent constitutional amendments or changes in legal interpretation. This means that the validity of the eclipsed law is merely suspended until it is brough in line with the constitution.

In essence, while both doctrines address conflicts between laws and the constitution, they differ in their treatment of the affected legal provisions. Severability involves the permanent removal of unconstitutional parts, ensuring that only the valid portions of the law remain enforceable.

CONCLUSION

In conclusion, the doctrine of severability stands as a crucial tool in preserving constitutional validity and legislative intent. Through its careful application, the Indian judiciary has ensured that unconstitutional elements do no taint the entire legal framework. While exceptions exist, the doctrine continues to play a pivotal role in upholding the sanctity of the Constitution.

In summary, the constitutional provisions of Article 13 and 14 provide the legal foundation for the doctrine of severability in Indian Constitutional law. These provisions operate empower the judiciary to review the constitutionality of laws, strike down unconstitutional provisions, and uphold the supremacy of the constitution.