Doctrine Of Severability

The Doctrine of Severability is a crucial principle in constitutional law, ensuring that laws with unconstitutional provisions are not entirely invalidated. Instead, only the offending sections are removed, preserving the remaining valid portions of the law. This doctrine upholds legislative intent, maintains legal certainty, and protects fundamental rights without overstepping judicial boundaries. Rooted in Article 13 of the Indian Constitution, it allows courts to strike down specific unconstitutional parts of a statute while keeping the rest intact. In this blog, we delve into the meaning, significance, conditions for application, landmark cases, and criticisms of the Doctrine of Severability, providing a comprehensive understanding of its role in safeguarding constitutional values.

What Is The Doctrine Of Severability?

In simple terms, the doctrine of severability is elementary; it does not strike down a law if it has a provision that violates the Constitution while the entire law is still valid and can legally function without the offending provision.

For example, let’s think of law as a cake. If a little part of the cake goes bad, you don’t throw away the whole cake. You just cut off the bad part and eat the rest. The doctrine of severability works the same way. It allows the court to “cut off” the unconstitutional part of the law and keep the rest.

Severability In Constitutional Provision

Article 13(1) and (2) of the Constitution is the basis of the doctrine of severability in India.

• Article 13(1): It states that all laws inconsistent with the fundamental rights guaranteed by the Constitution are void to that extent.
• Article 13(2): It prohibits the state from making laws that remove or abridge essential rights.

These articles allow the courts to strike down unconstitutional parts of the law while leaving the rest intact.

Importance Of The Doctrine Of Severability

The doctrine serves several important purposes:

Protects Legislative Intent

It is designed to ensure that laws passed by the legislature are not rendered null and void by certain unconstitutional provisions.

Maintains Legal Certainty

It safeguards the valid part of a statute and facilitates legal stability.

Upholds Fundamental Rights

It strikes down unconstitutional provisions and forces them to re-emphasize the protection of the fundamental rights of citizens.

Prevents Judicial Overreach

Courts intervene only when unconstitutional provisions of a law are found.

Also Read : Salient Features Of Indian Constitution

Conditions For Applying The Doctrine

The doctrine of severability is applied in specific situations in Indian courts. Let us take a deeper look at these situations:

Severability

This is the most important. The provision challenged as unconstitutional must be severed from the rest of the law and must be so severe that the remainder of the Act is not harmed as a whole.

Severability of the invalid part of a law is nullified if the invalid part is woven into the valid provisions in such a manner that its removal would destroy the entire law.

Legislative Intent

The intention of the legislature while making the law is the consideration of the court. In such a case, severability cannot be applied if, by all appearances, the legislature would not have passed the law but for the offending provision.

The court assumes that it was the will of the legislature to include that part in the law, and the court does not think that eliminating that part would defeat that will.

Public Interest

Public interest determines the effect of severability on the court. Sometimes the Court may hesitate to consider severability if repealing a part of the law would cause significant disruption or inconvenience to the public.

However, if the public benefits by preserving valid parts of the law, the Court is more likely to apply the doctrine.

Application examples in the Indian context

Here are some cases where the court applied the Doctrine of Severability:

• Minerva Mills Case (1980): There were statements congratulating the Court for striking down certain clauses of the 42nd Amendment while holding them unconstitutional. Other parts of the amendment were still valid.
• Keshavananda Bharati Case (1973): While the Supreme Court applied the doctrine to strike down provisions that went against the basic structure of the amendment, it saved the rest but made no comment on the other structure of the amendment.

Landmark Cases - Doctrine Of Separability

R.M.D. Chamarbagwala v. Union of India (1957)

This case is the landmark judgment on this doctrine. If a provision of a law is unconstitutional but can be severed from the rest, the remaining part of the law can still be enforced, the Supreme Court said.

The Court outlined two important tests for severability:

• The part must be the unconstitutional part, which can be severed from the valid part.
• It must be capable of functioning without the valid part.

State of Bombay v. F.N. Balsara (1951)

Entry of outsiders into the city of Bombay was challenged on the grounds of freedom of movement. The first objective of regulating entry was upheld, but discriminatory provisions based on place of origin were struck down.

A.K. Gopalan v. State of Madras (1950)

Though the principle of separability was not explicitly mentioned in this case, we held it implied. While the Court set aside the preventive detention law, it upheld provisions preventing arbitrary detention without safeguards.

Critics Of The Doctrine Of Severability

While the doctrine of severability is a valuable tool for upholding the Constitution and preserving the law, it is not without its criticisms:

Judicial Encroachment

The setting aside of part of a law is presented as an argument that it is a judicial rewriting of the law. It appears to infringe on the power of the judiciary and encroach on the domain of the legislature.

Complexity and Uncertainty

The doctrine is not easy to apply, and the results are often uncertain. As such, it can also lead to inconsistency and legal uncertainty.

Potential for Abuse

The doctrine can also be abused to uphold laws that are bad in themselves or that violate the spirit of the Constitution.

When The Supreme Court Declares A Law Unconstitutional

When the Supreme Court declares a law unconstitutional, it has important implications:

Binding on All Courts

Article 141 binds all courts in India. This means that the lower court is bound to follow a decision, and the law is no longer valid.

Applicable to All

This decision is a "Judgment in Rem," which means it decides for all members of the community who were not involved in the case. It is a precedent for future cases like this.

Precedent for Future Cases

When the Supreme Court decides that a law is unconstitutional and we decide that the law is unconstitutional forever, they do not need to come back to the court later. Usually, the decision of the Supreme Court is automatically accepted by the courts.

Partial Nullification

If only a part of a law is declared unconstitutional, that part of the law becomes void, as if it did not exist, and the rest of the law is still valid.

What Laws Are Excluded From Article 13(2)?

Article 13(2) prohibits laws contrary to fundamental rights. However, certain laws are excluded:

• Laws specified under Articles 105(3), 194(3), and 309.
• Articles 31A-31C and the 9th Schedule were added through amendments.

Other constitutional provisions also exclude laws made under Articles 358 and 359 in case of emergency so as not to interfere with other provisions. This brings coherence to different parts of the Constitution.

Conclusion

The Doctrine of Severability ensures that laws with unconstitutional provisions do not become entirely void if their valid portions can function independently. By preserving legislative intent and safeguarding the public interest, the doctrine strikes a balance between upholding constitutional integrity and maintaining legal stability. However, its application requires careful judicial oversight to prevent overreach and ensure consistency. While it has been instrumental in landmark cases like Minerva Mills and R.M.D. Chamarbagwala, it also faces criticism for complexity and potential misuse. Despite its challenges, the doctrine remains a crucial tool in India's constitutional jurisprudence.

FAQs On Doctrine of Severability

Q1: What is the Doctrine of Severability?

The Doctrine of Severability allows courts to nullify unconstitutional provisions of a law while retaining the rest of the law, provided the valid parts can function independently.

Q2: Which constitutional articles form the basis of the doctrine in India?

Articles 13(1) and 13(2) of the Indian Constitution establish the doctrine by declaring laws inconsistent with fundamental rights as void to the extent of their inconsistency.

Q3: How does the doctrine protect legislative intent?

By removing only the unconstitutional parts, the doctrine ensures the legislature's original intent is upheld without discarding the entire law.

Q4.Can courts apply severability to all laws?

No, severability applies only if the invalid provisions are separable from the valid ones and the law can still function effectively without the unconstitutional parts.

Q5.What are the criticisms of the Doctrine of Severability?

Criticisms include allegations of judicial overreach, complexity in application, potential for inconsistency, and the risk of upholding flawed laws by severing only minor invalid parts.