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DOCTRINE OF SEVERABILITY

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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:

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:

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

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:

  2. Functional Separability:

 3. Separability Clauses:

   4. Public Interest:

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

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]

AspectsDOCTRINE OF ECLIPSEDOCTRINE OF BASIC STRUCTUREJUDICIAL REVEIWINTERACTION 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.
APPLICATIONPrimarily applies to laws enacted before the Constitution came into force; renders them dormant until amended.IMPACT ON FUNDAMENTAL RIGHTSApplied 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 RIGHTSProtects fundamental rights by rendering conflicting pre-constitutional laws unenforceable; does not nullify them outrightEnsures 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 INTERPRETATIONEstablished 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 INTENTMaintains legislative intent by allowing valid parts of pre-constitutional laws to remain effective while addressing inconsistenciesProtects 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

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.

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.

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
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  2. 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.
  3. Testbook, Doctrine of Eclipse, (2022), https://testbook.com/ias-preparation/doctrine-of-eclipse.
  4. 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/.
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  10. Drishti Judiciary, Doctrine of Severability, (March 30, 2023), https://www.drishtijudiciary.com/doctrines/doctrine-of-severability.
  11. Testbook, Doctrine of Severability, (April 15, 2023), https://testbook.com/ias-preparation/doctrine-of-severability.
  12. Law Bhoomi, Doctrine of Severability, (January 2022), https://lawbhoomi.com/doctrine-of-severability/.
  13. iPleaders, Doctrine of Severability, (September 10, 2023), https://blog.ipleaders.in/doctrine-of-severability/.
  14. Ramesh, A., Doctrine of Severability in Indian Constitution, NLSIR (2020), https://repository.nls.ac.in/cgi/viewcontent.cgi?article=1035&context=nlsir.
  15. 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/.

[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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