DOCTRINE OF SEVERABILITY

This article is written by Aarushi Chauhan, an intern under Legal Vidhiya

ABSTRACT

 In India, article 13 of the constitution allows the court to make any law invalid, which is inconsistent with the fundamental rights. This paper critically examines the concept of doctrine of severability, explaining how this concept has given an escape to the judiciary from making the entire provision as unconstitutional and shaped the modern understanding of the constitution.

 The objective is to analyze how the criterion of doctrine of severability is applied and how it has contributed to our understanding of maintaining constitutionality with fundamental rights. It argued that while a part of the provision is unconstitutional, the whole provision should not be eliminated from the constitution.

 The paper highlights legal and comparatives analysis, origin, interaction of severability with other concepts. The study aims to provide insights such as its impact on constitution, challenges and international perspectives.

KEYWORDS

Doctrine of Severability, Article-13, Judicial Review, Unconstitutional Provisions, Severable and Non-Severable Clauses, Legislative Intent, Validity of Statutes, Partial Invalidity, Constitutional Interpretation, Doctrine of Eclipse, Doctrine of Separability, Doctrine of Basic Structure

INTRODUCTION

The doctrine of severability is a fundamental legal principle, which denotes that a provision, which is unconstitutional but can be severable to some extent, should not be taint as whole. The doctrine is also known as ‘DOCTRINE OF SEVERABILITY’, which finds its roots from a case   (Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Company Ltd.)[1] of England.

It is based on a legal maxim i.e. ‘in partibus’, which means ‘in parts’. [2]The doctrine is with the approach that if there is a statue of the constitution that contents valid as well as invalid provision then, only the invalid part can be severed (eliminated), and the rest of the part remains the same. Initially, the legal systems used to make the entire statue invalid if it contains any inconsistency or minor errors. This led to unintended consequences of removing the provision as whole, which is actually well intended.

The word ‘severability’ originates from contract law which means where it is established that the part of the contract is invalid, the remainder still applies. This doctrine over a period significantly evolved with the influence of legislative practices and judicial interpretations.

CONCEPT OF SEVERABILITY

In India, Article 13 paved the way for ‘Doctrine of severability’ to come into action because of it    Indian courts have preserved various valid aspects of the constitution.

Article 13 of the Indian Constitution serves as a crucial safeguard for fundamental rights by ensuring that any law inconsistent with the provisions of Part III (which enshrines fundamental rights) is rendered void. It consists of several clauses that outline its scope and application:

• Article 13(1): This clause states that all laws in force immediately before the commencement of the Constitution, to the extent that they are inconsistent with fundamental rights, shall be void. This provision ensures that pre-constitutional laws must comply with the newly established constitutional framework.
• Article 13(2): This clause prohibits the State from making any law that takes away or abridges the rights conferred by Part III. Any law made in contravention of this clause is void to the extent of such contravention. This provision empowers the judiciary to review and invalidate laws that infringe upon fundamental rights.
• Article 13(3): This clause provides definitions for terms used in Article 13, clarifying that “law” includes ordinances, orders, bye-laws, rules, regulations, notifications, customs, and usages having the force of law.
• Article 13(4): This clause states that nothing in Article 13 shall apply to any amendment of the Constitution made under Article 368. [3]

The doctrine of severability intrinsically links with Article 13 as it allows courts to separate unconstitutional provisions from valid ones within a statute. When a specific provision is to violate fundamental rights, the doctrine enables courts to declare only that provision void while preserving the rest of the statute. This mechanism ensures that:

• Legislative Intent is Preserved: By allowing valid provisions to remain in effect, the doctrine respects legislative intent and maintains legal continuity.
• Protection against Overreach: The doctrine acts as a check against legislative overreach by ensuring that only those parts of a law that infringe upon fundamental rights are struck down.
• Judicial Review: The application of severability under Article 13 enhances judicial review by enabling courts to assess laws for their constitutionality without invalidating entire statutes unnecessarily.

The first Indian judgment, which paved the way of this doctrine in India, was AK Goplan v. State of Madras (1950)[4], A.K. Gopalan, a Communist leader, was detained under the Preventive Detention Act, 1950. He challenged his detention on the grounds, that it violated his fundamental rights under Articles 19 and 21 of the Indian Constitution.

The Supreme Court examined some key issues in this case

• The constitutionality of the Preventive Detention Act
• The relationship between Articles 19 (freedom) and 21 (personal liberty)
• The interpretation of “procedure established by law” versus “due process

For this case, (5:1) bench ruled to uphold the Preventive Detention Act while declaring Section 14 unconstitutional for prohibiting disclosure of detention grounds. Thus, for the first time the court applied the doctrine of severability, allowing the invalidation of Section 14 while upholding the remainder of the Act, thus preserving legislative intent and individual rights.

This case set significant precedents regarding personal liberty and preventive detention in India, leading to criticisms about civil liberties. Maneka Gandhi v. Union of India eventually overruled it in 1978, which expanded Article 21’s interpretation to include substantive rights and due process protections.

APPLICATION OF SEVERABILITY

The Doctrine of Severability enables courts to eliminate unconstitutional parts of a statute while keeping the valid sections intact. This principle ensures that only the unconstitutional elements are removed, allowing the remainder of the law to remain effective if it can operate on its own.

Judges pay close attention to legislative intent, assessing whether the valid portions can fulfill the law’s objectives without the invalid sections. This method minimizes legal disruption by preserving the operational aspects of the law. Furthermore, public interest is taken into account, ensuring that the doctrine is applied in a manner that fosters legal stability and benefits the community.

TEST FOR SEVERABILITY

Legal Tests Applied by Courts to Determine Severability

Courts apply several tests to determine whether a statute can be upheld partially or wholly struck down, focusing on the principles of severability. The primary tests include:

1. Legislative Intent:

• Purpose of Severability: The doctrine of severability is often guided by legislative intent. Courts assess whether lawmakers would have enacted the valid provisions independently if they knew certain provisions were unconstitutional. If the legislative intent is clear that the valid parts should stand alone, then severability is more likely to be applied.

  2. Functional Separability:

• Grammatical, Functional, and Volitional Separability: In jurisdictions like California, courts use a three-part test to determine functional separability. This involves checking if the invalid provision can be stricken without affecting the wording, coherence, or intended purpose of the remaining provisions.

 3. Separability Clauses:

• Explicit Clauses: Some statutes include explicit severability clauses that state if any provision is unconstitutional, the remaining provisions will still apply. These clauses provide clear legislative intent and facilitate judicial decisions.

   4. Public Interest:

• Balancing Act: Courts also consider public interest when applying severability. The doctrine is applied, if it serves public interest and aligns with legislative intent, ensuring that valid provisions continue to operate effectively.

Discussion on When a Statute Can Be Upheld Partially or Wholly Struck Down

• Partial Invalidity: The doctrine of severability allows courts to invalidate only specific provisions of a statute that are unconstitutional while preserving the remaining valid parts. This approach ensures that well-intentioned legislation is not rendered completely ineffective due to minor errors or inconsistencies.
• Entire Statute Invalidity: If the invalid provision intertwined with the rest of the statute that they cannot be separated without rendering the entire law inoperable, then the court may strike down the entire statute. This decision is on whether the valid and invalid parts are separable and whether the remaining provisions can function independently.

RELEVANT CONCEPTS RELATED TO SEVERABILITY

There are some concepts that are somehow related to the doctrine of severability. Sometimes times they go hand-in-hand and sometimes it is tangled. These concepts and their interaction with the doctrine are as follows:[5]

Aspects	DOCTRINE OF ECLIPSE	DOCTRINE OF BASIC STRUCTURE	JUDICIAL REVEIW	INTERACTION WITH SEVERABILITY
Applied to both pre-and post-constitutional laws; enables courts to invalidate laws that violate fundamental rights or constitutional provisions.	Allows pre-constitutional laws inconsistent with fundamental rights to be inoperative but not void; they can be revived through constitutional amendments.	Asserts that certain fundamental features of the Constitution cannot be altered or destroyed by amendments, preserving the Constitution’s core principles.	The power of courts to review laws and executive actions for their constitutionality, ensuring compliance with the Constitution.	Severability allows courts to strike down unconstitutional provisions while preserving the rest of the law, aligning with judicial review principles.
APPLICATION	Primarily applies to laws enacted before the Constitution came into force; renders them dormant until amended.	IMPACT ON FUNDAMENTAL RIGHTS	Applied to both pre-and post-constitutional laws; it enables courts to invalidate laws that violate fundamental rights or constitutional provisions.	Courts may use severability to maintain legislative intent while applying the doctrine of eclipse or basic structure when invalidating parts of a law.
IMPACT ON FUNDAMNETAL RIGHTS	Protects fundamental rights by rendering conflicting pre-constitutional laws unenforceable; does not nullify them outright	Ensures that amendments do not infringe upon fundamental rights protected under the Constitution’s basic structure.	Safeguards fundamental rights by allowing courts to strike down laws that violate these rights, reinforcing their inviolability.	The application of severability ensures that valid provisions protecting fundamental rights remain effective even if some parts are struck down.
JUDICIAL INTERPRETATION	Established in cases like Bhikaji Narain Dhakras v. State of Madhya Pradesh  (1955)[6]; emphasizes the temporary nature of conflicts with fundamental rights.	Developed through landmark judgments such as Kesavananda Bharati v. State of Kerala (1973)[7]; highlights the supremacy of constitutional principles over legislative changes.	Rooted in cases like Maneka Gandhi v. Union of India (1978)[8]; emphasizes the judiciary’s role in upholding constitutional supremacy and individual rights.	Courts interpret statutes to ensure coherence and functionality, applying severability alongside doctrines like eclipse and basic structure when necessary
COHERENCE WITH LEGISLATIVE INTENT	Maintains legislative intent by allowing valid parts of pre-constitutional laws to remain effective while addressing inconsistencies	Protects legislative intent by ensuring that core constitutional values are not compromised by amendments.	Upholds legislative intent by reviewing laws for compliance with constitutional mandates, ensuring that valid provisions are preserved.	Severability supports legislative intent by allowing courts to preserve valid provisions while invalidating unconstitutional ones, promoting legal stability.

JUDICIAL PRECEDENTS

The key judicial decisions are

• In the landmark case of AK Gopalan v. State of Madras (1950)[9], the supreme court of India establishes the doctrine of severability for the very first time. The court held that the part, which is unconstitutional, would be void and the rest of the part will be intact.
• RMD. Chamarbaugualla v. Union of India( 1975)[10] – This case is one most important case to explain the Doctrine of Severability. In this case, the central issue that which part is valid and which part must be severed. The court said that valid and invalid parts can be examined by the intent of the legislation. If the parts valid and invalid are intertwined that the valid parts cannot stand alone, the whole statue must be declared unconstitutional.
• Kihoto hollohan v. Zachillhu (1992[11]) – The court applied doctrine of severability in this case to invalidate parts of 10^th schedule of the constitution while presenting the rest of it. In this case, the part pertaining to disqualification of members of the parliament and state legislatures was invalidating.
• The Supreme Court ruling in the case Minerva Mills Ltd v. Union of India (1980[12]) the court upheld that some sections of 42^nd amendment are creating an imbalance between the fundamental rights and DPSP. Moreover, restricting the judicial review and hindering the ‘basic structure doctrine’. Thus, the court with the help of doctrine of severability removed those provision which were unconstitutional and giving preference to DPSP over fundamental rights and preserved the rest of the article.

RECENT CHALLENGES AND INTERNATIONAL PERSPECTIVE

Recent legal challenges surrounding the doctrine of severability have underscored its importance in modern law, especially concerning constitutional amendments and new legislation. This discussion will explore key cases in India and offer a comparative analysis of how severability is applied in India, the United States, the United Kingdom, and Australia.

• Modern-Day Challenges in India

In India, the concept of severability has gained significant attention due to various legal challenges, especially those related to amendments to the Constitution and the introduction of new laws. For example:

Navtej Singh Johar v. Union of India (2018[13]): This case contested Section 377 of the Indian Penal Code, which made consensual homosexual acts a criminal offense. The Supreme Court ruled that Section 377 was unconstitutional, highlighting that it violated fundamental rights to privacy and equality. The court utilized the doctrine of severability, striking down only the problematic section while keeping the other legal provisions intact.

• Global Perspective on Severability

United States

In the United States, the idea of severability is often supported by separability clauses found in legislation. These clauses clearly indicate that if any part of a law is deemed unconstitutional, the remaining sections will still be in effect. For instance:

Affordable Care Act (2012)[14]: When certain aspects of this law were challenged, courts looked at its severability clause to assess whether the rest of the legislation could remain valid even if some provisions were invalidated. The U.S. Supreme Court ultimately decided that many elements of the Act could persist even if others were struck down.

The U.S. approach highlights the importance of legislative intent and the clarity provided by separability clauses, enabling courts to maintain significant portions of laws while addressing specific constitutional issues.

United Kingdom

In the United Kingdom, the concept of severability is not as formally established as it is in India or the U.S., but it is acknowledged under common law. Courts adopt a practical approach, as demonstrated in R v. Secretary of State for Transport (2006)[15], where provisions deemed unconstitutional can be removed if they do not fundamentally change the statute, thus allowing for flexibility while still honoring legislative intent. The UK’s legal tradition places a strong emphasis on judicial discretion in assessing severability.

Australia

In Australia, severability is primarily dealt with through case law. In Plaintiff S157/2002 v. Commonwealth[16], the High Court utilized principles akin to severability, permitting valid sections of legislation to remain effective even if other parts are invalid. Australia depends on judicial interpretation and the intent of the legislature to handle invalid provisions, rather than relying on a formal doctrine of severability.

CONCLUSION

The Doctrine of Severability is essential for maintaining the constitutional framework of India. It allows courts to remove only the unconstitutional parts of a statute, ensuring that the legislative intent is honored while also protecting the fundamental rights of citizens. Important judicial cases have helped shape this doctrine, striking a balance between legislative power and judicial oversight.

Despite its advantages, the doctrine faces challenges, especially when valid and invalid sections of legislation are closely linked. Applying severability requires a careful examination of legislative intent and the overall coherence of the statute. Similar to practices in the United Kingdom and Australia, other common law jurisdictions also depend on judicial discretion to apply severability in a way that maintains legislative integrity while adhering to constitutional or human rights standards.

Concisely, the Doctrine of Severability is crucial for supporting the ‘Basic Structure Doctrine’ and judicial review in India. It allows for the removal of unconstitutional elements without invalidating entire laws, offering a flexible yet principled method for constitutional adjudication. Nonetheless, ongoing judicial vigilance and a nuanced application of the doctrine are essential to tackle new challenges in contemporary legislation.

REFERENCES

1. Plaintiff S157/2002 v. Commonwealth, [2003] HCA 5
2. R v. Secretary of State for Transport [2006] UKHL 5
3. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1
4. Minerva Mills Ltd v. Union of India, (1980) 3 SCC 625
5. Kihoto Hollohan v. Zachillhu, (1992) 1 SCC 678
6. RMD Chamarbaugwala v. Union of India, AIR 1955 SC 1
7. A.K. Gopalan v. State of Madras, AIR 1950 SC 27
8. Bhikaji Narain Dhakras v. State of Madhya Pradesh, AIR 1955 SC 781
9. Maneka Gandhi v. Union of India, AIR 1978 SC 597
10. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461
11. Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Co Ltd, [1894] AC 535

12. Drishti IAS, Judicial Doctrines, (June 5, 2023), https://www.drishtiias.com/to-the-points/Paper2/judicial-doctrines.
13. NLSIU, The Effect of Striking Down a Substitution: The Article 31C Story, (2020), https://repository.nls.ac.in/cgi/viewcontent.cgi?article=1035&context=nlsir.
14. Testbook, Doctrine of Eclipse, (2022), https://testbook.com/ias-preparation/doctrine-of-eclipse.
15. SC Observer, The Effect of Striking Down a Substitution: The Article 31C Story, (2020), https://www.scobserver.in/journal/the-effect-of-striking-down-a-substitution-the-article-31c-story/.
16. Legal Wires, Study Notes: Doctrine of Severability, (May 15, 2022), https://legal-wires.com/lex-o-pedia/study-notes-doctrine-of-severability/.
17. Jyoti Judiciary, Doctrine of Severability in Indian Constitution, (August 12, 2023), https://www.jyotijudiciary.com/doctrine-of-severability-in-indian-constitution/.
18. Chicago Unbound, Articles, (2020), https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=14320&context=journal_articles.
19. BYJU’S, Doctrine of Severability, (2021), https://byjus.com/free-ias-prep/doctrine-of-severability/.
20. Lawctopus, Doctrine of Severability Under Indian Constitution, (July 2022), https://lawctopus.com/clatalogue/clat-ug/doctrine-of-severability-under-indian-constitution/.
21. Drishti Judiciary, Doctrine of Severability, (March 30, 2023), https://www.drishtijudiciary.com/doctrines/doctrine-of-severability.
22. Testbook, Doctrine of Severability, (April 15, 2023), https://testbook.com/ias-preparation/doctrine-of-severability.
23. Law Bhoomi, Doctrine of Severability, (January 2022), https://lawbhoomi.com/doctrine-of-severability/.
24. iPleaders, Doctrine of Severability, (September 10, 2023), https://blog.ipleaders.in/doctrine-of-severability/.
25. Ramesh, A., Doctrine of Severability in Indian Constitution, NLSIR (2020), https://repository.nls.ac.in/cgi/viewcontent.cgi?article=1035&context=nlsir.
26. Singh, R., The Effect of Striking Down a Substitution: The Article 31C Story, SC Observer (2020), https://www.scobserver.in/journal/the-effect-of-striking-down-a-substitution-the-article-31c-story/.

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[1]Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Co Ltd, [1894] AC 535

[2] ipleaders, Doctrine of Severability, (September 10, 2023), https://blog.ipleaders.in/doctrine-of-severability/.

[3] NLSIU, The Effect of Striking Down a Substitution: The Article 31C Story, (2020)

[4] AK Gopalan v. State of Madras (1950)

[5] Doctrine of Severability Under the Indian Constitution, Lawctopus, https://lawctopus.com/clatalogue/clat-ug/doctrine-of-severability-under-indian-constitution/ (last visited Oct. 4, 2024).

[6] Bhikaji Narain Dhakras v. State of Madhya Pradesh, AIR 1955 SC 781

[7] Maneka Gandhi v. Union of India, AIR 1978 SC 59

[8] Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461

[9] AK Gopalan v. State of Madras (1950) ,

[10] RMD. Chamarbaugualla v. Union of India( 1975) 

[11] Kihoto Hollohan v. Zachillhu, (1992) 1 SCC 678

[12] Minerva Mills Ltd v. Union of India, (1980) 3 SCC 625

[13] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1

[14]Chicago Unbound, Articles, (2020)

[15] R v. Secretary of State for Transport [2006] UKHL 5

[16] Plaintiff S157/2002 v. Commonwealth, [2003] HCA 5

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