The doctrine of severability or separability as per the interpretations of Indian Judiciary implies that if the Constitution contains a provision which is offending in nature, then the entire provision cannot be struck down and declared as void. Only the part of the provision which is offending is considered void.
The basic objective of this doctrine is to retain the constitutional portion of a statute and separate it from the unconstitutional portion which is inconsistent with the Fundamental Rights. Article 13 is applied by the Courts to separate the valid part from the invalid one.
Article 13 states: 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
The fundamental test to determine is if the portion which is inevitably blended with the repugnant portion can survive independently without the invalid part of the statute or not. Article 13(1) and 13(2) therefore; ensure that the laws inconsistent with the Fundamental Rights are void to the extent of inconsistency.
The doctrine of severability has been invoked and used by the Supreme Court in several cases over the years for challenging the legality of constitutional amendments since amendments and laws are constitutional as long as they do not alter the basic structure of the Constitution.
In the case of R.M.D.C v. Union of India, AIR 1957 SC 628, the Prize Competitions Act 1955 was taken into consideration and its constitutionality was challenged on the grounds of violation of Fundamental Right of the petitioners granted by Article 19(1)(g). The contravening act provided for the control of prize competitions. Section 2(d) defined prize competitions. It was stated by the Court that the application of the impugned provision could be restricted to gambling competitions.
It was stated by the Court that when an act or a statute is held to be in part void, it is usually enforced in a regular manner if it is severable from the contravening portion of the act.
The Apex Court has laid down a few rules relating to the doctrine of severability.
- If the valid and invalid portions of the act are blended together inextricably so much so that it becomes impossible to separate them, in that scenario, the invalidity of the portion will lead to the entire act becoming invalid.
- The process of separability of the invalid portion from the valid one is not dependant on whether that particular law has been enacted in same or different sections.
- In a situation where the invalid part has been deleted from the statute and the remaining portion cannot be enforced without introducing the whole process of alterations and modifications, then the entire statute is struck down as void.
- If the valid and the invalid portions form a part of a single scheme even though they are distinct and separate, but the scheme was designed to be operative as a whole, then the invalidity of one portion of statute will result in the striking down of the entire statute.
- Where the valid and invalid portions of a statute are independent and also are not a part of a single scheme but the remaining valid portion lacks substance and is entirely different from what it was envisioned to be when it emerged as legislature, then the entire statute will be struck down.
In Minerva Mills Ltd v. Union of India, AIR 1980 SC 1789, Sections 4 and 5 of the Constitutional Amendment Act of 1976 were struck down since they were considered to be beyond the amending powers of the Constitution. These two Sections were severed and the remaining Act was held to be constitutionally valid.
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