Concept of Doctrine of Severability

Doctrine of Severability:

When a particular provision of an enactment (or of subordinate legislation) is found to be void as violating constitutional provisions (e.g. a provision as to fundamental rights) the question may arise as to what is the impact of such finding on the other provision of the Act.  The doctrine of severability allows the provisions of the Act which are consistent with the Part III and discards those provisions which are inconsistent with the Part III, if both the provisions are separable. If the provisions are not separable, then the entire Act is treated as Void.  This is called the Doctrine of severability[1].

The doctrine of severability is an important aspect of understanding the import ofArticle 13. Any resort to this doctrine can be had when it becomes apparent that a partof any law offends the constitution. In the context of Indian Constitution, it is the partdealing with fundamental rights that is the determining factor as to when a law willbe subjected to the above doctrine. DD Basu says that ‘doctrine of severability isnothing but the common law rule of ultra vires imported in the realm of constitutionallaw’[2]. Simply put, this doctrine means that if any particular provision of the statute isunconstitutional and that provision is independent of or severable from the rest, onlythe offending provision will be declared invalid by the Court and if it is not separable,the whole of the statute shall fail[3].

However, in Poindexter v Greenhow[4], the AmericanSupreme Court held that the doctrine cannot be applied to ‘substitute for the lawintended by the Legislature one they may never been willing, by itself, to enact’.

Doctrine of Severability under Indian constitution:-

Article 13: an overview

Article 13 provides the meaning of ‘law’. However, this meaning does not extendbeyond Part III of the Constitution. It in detail lays down the scope of ‘law’ and whiledoing so makes it clear that under what circumstances the pre‐constitutional as well aspost constitutional laws shall be valid or void[5]. To put it simply, the guiding light is ifthe laws are inconsistent with or in derogation of the fundamental rights.

This clearly puts a definite limitation on the wide legislative powers given by Article246. It is certainly within the competency of the Court to judge and declare whetherthere has been any contravention of this limitation.The legislative power of the parliament and the State legislature has been subjected totwo limitations:

1. The law must be within the legislative competence;
2. The law must be subject to the provisions of the Constitution and must nottake away or abridge the rights conferred under Part III.

Both these limitations being justifiable, the courts can decide if either of the limitationshas been transgressed by the legislature of the Parliament. The power derived fromArticles 245 and 246 to make law has to be exercised keeping in view the limitationsdelineated under Article 13 of the Constitution. This power is subject to the abovelimitations. In fact, this article equips the courts with the power of judicial review bymaking the Part III rights justiciable[6]. That is courts have been entrusted under theIndian constitution with the power to decide the question of justiciability[7] as isperspicuous from the provisions contained under Article 13. ‘In order to keep theexecutive/legislature within the limits assigned to their authority under theconstitution the interpretation of laws is the proper and peculiar province of thejudiciary. Constitution is the “will” of the people, whereas the statutory laws are thecreation of legislators who are the elected representatives of the people ‐ declared inthe constitution ‐ the will of the people must prevail.’[8] And therefore if it is found thatan order passed is violative of fundamental rights, was arbitrary and discriminatory,normal rule, there being no ground for condoning the breach of fundamental rights. Awell‐known authority on Indian Constitution observes:[9]

Article 13 lays down that what would otherwise been implied, ie thesupremacy of the fundamental rights over any other law in case ofinconsistency between the two. It could also mean that the constitution makersintended to confine the application of fundamental rights to what is stated in thisarticle. Thus, for example, pre‐constitutional laws shall be invalid only to theextent they fall within the category of “laws in force”. As uncodified personallaws do not fall within that category, it could be argued that they were notintended to become invalid on the ground of any inconsistency with thefundamental rights. (Emphasis added.)

In giving to themselves the Constitution, the people have reserved the fundamental freedoms to themselves. Article 13 merely incorporates that reservation. The article is not thesource of protection of fundamental rights, but the expression of reservation.[10]In A K Gopalan v State of Madras,[11] the Supreme Court observed:

The inclusion of Article 13(1) and (2) in the constitution appears to be a matter ofabundant caution. Even in their absence, if any of the fundamental rights wasinfringed by any legislative enactment, the Court has always the power todeclare the enactment to the extent it transgresses the limits, invalid. Theexistence of Article 13(1) and (2) in the Constitution therefore is not material forthe decision of the question what fundamental right is given and to what extentit is permitted to be abridged by the Constitution. (Emphasis added.)

The reason, as D D Basu opines, is ‘that the very adoption of written constitution witha Bill of Rights and judicial review implies that Courts shall have the power to strikedown a law which contravenes a fundamental right or some other limitation imposed by the constitution’.[12]

Indian Constitution:-

Under the Indian constitution, Clauses (1) and (2) two provide for the application ofthe above doctrine. Both the clauses deal with the contravention of fundamental rightsas contained in the Part III. The two clauses provide:

1. 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.
2. 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 doctrine simply implies that where only a part of the offending law is inconsistentwith or contravenes the fundamental rights, it is that part only that shall be declared tobe void, and not the entire law. And the voidness is circumscribed by the expressions‘to the extent of the contravention’ and ‘to the extent of such inconsistency’. That is, theapplication of the doctrine separates the invalid part of the law from the valid part.The resultant implication is that the valid part of the law continues to be law whilethat part of it which offends the constitution ceases to have the content of law. It nolonger remains a law. H M Seervai observes:[13]

When a law is impugned as violating constitutional limitations, it may bepossible to save the law by applying the principle of severability. There are twotypes of severability … the provision violating the Constitutional limitationsmay be distinct and severable, and the Court would uphold the rest of the Actby severing such distinct provisions and declaring them void. But theimpugned law may be one and inseverable; so that no specific provision of theAct could be declared to void. In such circumstances, the doctrine ofseverability in application or enforcement would apply.

In A.K. Gopalan v State of Madras[14], s 14 of the Prevention Detention Act 1950 was declaredto be ultra vires by the Supreme Court. The Court observed that ‘the impugned Actminus this Section can remain unaffected. The omission of this section will not changethe nature of the structure of the legislation. Therefore, the decision that Section 14 isultra vires does not affect the validity of the rest of the Act.’ However, the court has nojurisdiction to redraft the legislation. The court cannot sever one single provisionwhich covers valid as well as invalid subjects in order to save some portion of it.

In RMDC v Union of India[15] the Prize Competition Act 1955 was challenged on the ground

of violation of the fundamental rights of the petitioners as secured under Article 19(1)(g) the court held that the provision of the Act were severable. It observed, as has been previously discussed, that when a statute was in part void, it would be enforced as regards the rest, if that was severable from what was invalid.[16] Separability is a question of substance, not of form. Hence, while the substance is to be determined from the provisions of the statute as a whole, it will also be legitimate to take intoaccount the history of the legislation and its object, apart from its enacting provisions,title, and preamble[17].

When the provisions of the impugned law are so interwoven that they are notseverable, then the entire law, says the Act, is ultra vires. The Privy Council in reInitiative and Referendum Acts, observed:[18]

A particular section of an Act may not be an isolated and independent clause,and may form part of one connected indissoluble scheme for the attainment ofa definite object; in which case it would have to be considered as an inseparablepart of the whole. A law which is ultra vires in part only may thereby becomeultra vires in the whole, if the object of the Act cannot at all be attained byexcluding the bad part.

Judicial interpretation

 In A.K. Gopalan v. State of Madras[19], the Supreme court while declaring section 14 of the Prevention Detention Act, 1950, a n ultra vires, observed: “The impugned Act minus this section can remain unaffected. The omission of the section will not change the nature or structure of the subject of the legislation. Therefore, the decision that Section 14 is ultra vires does not affect the validity of the rest of the act. It was observed that the provisions which have been declared as void do not affect the entire statue; therefore, there is no necessity for declaring the statue as invalid.

The Supreme Court observed in Romesh Thapparv. State of Madras[20], that; “Where a law purports to authorizes the imposition of restriction on a Fundamental Right in language wide enough to cover restriction, both within and without the limits provided by the Constitution and where it is not possible to separate the two, the whole law is to be struck down. So long as the possibility of its being applied for purpose not sanctioned by the constitution cannot be ruled out. It must be held wholly “void”.

In Kihota Hollahan v. Zachihtu[21], it has been held that section 10 of the Tenth Schedule minus para 7 remains valid and constitutional. Para 7 which has been declared unconstitutional is severable from the main provision of the Tenth Schedule. The remaining provisions of the Tenth Schedule stand independent of para 7 of the Tenth Schedule provided that the Speaker’s decision regarding the disqualification shall be final and no court could examine its validity.

Motor General Trader’s v State of A.P.[22]The Supreme Court laid down some important propositions on the doctrine of severability in this famous case.

1. The history, object, title and preamble of the Act  shall have to take into consideration

1. The remaining statute, after removing the invalid and inconsistent portions from it, must give full meaning without any alterations. If any alterations are required to that remaining statute, then it must be struck down as a whole. The remaining portion  shall also not to be taken into account
2. The form is not material.  The substance is material
3. The question of severability has to be judged  on the intention of legislature. To ascertain the intention of the legislature the statement of the mover of the bill is no more  admissible  than a speech made on the floor of the house
4. The part of an Act  can be held valid and another part invalid, if they are severable. If the offending provisions are so interwoven  into the scheme that they  are not severable, the whole  is ultra vires  and void
5. It is well settled  principle  that the proceedings of the legislature cannot be called  in and for construing  a section.

The doctrine of severability has been elaborately considered by the Supreme Court inR.M.D.C. vUnion of India[23], and the following rules regarding the question of severability has been laid down:

1. The intention of the legislature is the determining factor in determining whether the valid part of a statute is severable from the invalid parts.
2. If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from another, then the invalidity ofa portion must result in the invalidity of the Act in its entirety. On the other hand, if they are so distinct and separate that after striking out what is invalid what remains is itself a complete code independent of the rest, then it will be upheld notwithstanding that the rest had become unenforceable.
3. Even when the provisions which are valid, are distinct and separate from those which are invalid if they form part of a single scheme which is intended to be operative as a whole, then also the invalidity ofa part will result in the failure of the whole.
4. Likewise when the valid and invalid parts of a Statute are independent and do not form part of a Scheme but what is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of legislature, then also it will be rejected in its entirety.
5. The severability of the valid and invalid provisions of a Statute does not depend on whether provisions are enacted in same section or different section, it is not the form but the substance of the matter that is material and that has to be ascertained on an examination of the Act as a whole and of the setting of the relevant provisions therein.
6. If after the invalid portion is expunged from the Statute what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be struck down as void as otherwise it will amount to judicial legislation.
7. In determining the legislative intent on the question of severability, it will be legitimate to take into account the history of legislation, its object, the title and preamble of it

Jia Lal v Delhi Administration[24], The appellant was prosecuted for an office u/s 19 (f) of the Arm Act 1878. In fact, section 29 of this Act provides that in certain area in which the petitioner did not obtain any license in which the petitioner was residing, it was not necessary to obtain the said license for possession fire arm. Section 29 was challenged as ultra virus and unconstitutional as offending Art 14 and also section 19(f) of the Arms Act 1878 on the ground those two sections were not severable; on the question of severability the SC held that the section 29 of the Arms Act 1878 was ultra virus.

Conclusion

Severability doctrine, long misunderstood and ignored, deservesour renewed interest, study, and analysis. The doctrine raises fundamentalquestions about the courts’ role in constitutional adjudication and the balance of power between courts and legislatures. Yet, a virtualtide of case law and commentary treats severability merely as aform of statutory interpretation, making it easy to obscure these criticalquestions. This reading is incorrect. The doctrine does not call forstatutory interpretation; it requires a remedial judgment after thecourt has construed the challenged statute, determined a constitutionalquestion was unavoidable, and found the statute partially invalid.Plain and simple, the doctrine calls for judicial rewriting. It askswhether the court should save the statute by rewriting it or invalidatethe statute as a whole.This remedial question should not turn on legislative intent ascurrent doctrine provides. Legislatures, as a general rule, prefer thatcourts save the statutes they enact. But that does not mean thatcourts should follow suit. Courts, simply put, are not equipped to rewritelegislation. They are not appointed to be policymakers, theyhave none of the resources legislatures have, and the doctrine givesthem only limited options to undertake the task. Giving courts anextensive power to rewrite statutes not only compromises separationof-powers principles, but it also distorts legislatures’ incentives tocomply with constitutional norms ex ante when drafting legislation. Ifcourts will readily rewrite statutes to render them constitutional, legislatureshave much less of a reason to tailor their statutes to constitutionalprinciples rather than simply writing the statute they desire.

This does not mean we should abandon severability doctrine.The doctrine serves the important purpose of saving partially invalidstatutes. We could not have a workable system of judicial reviewwithout some form of severability doctrine. But we should not havethe doctrine in its current form. Severability should not be treated asa legislative question to be answered by inspecting the intent of theenacting legislature. Instead, it is a remedial question for the courts tobe considered in light of structural constitutional principles, includingseparation of powers. Courts have to ensure that severance does notentail unacceptable judicial lawmaking.This analysis sheds light on the proper role of facial and as-appliedchallenges in constitutional adjudication and suggests furtherreason to doubt the persistent claimmade by Justices and scholarsalikethat as-applied challenges should be the “basic building blocksof constitutional adjudication”[25].Forthis reason, when a court finds a statute riddled with constitutionalflaws, it should generally invalidate that statute on its face. Not onlydoes facial invalidation promise to do a better job of protecting constitutionalrights, it avoids forcing the court to rewrite the statute andcreates incentives for the legislature the body best suited to revisethe statute to do so.

[1]http://www.feeleminds.com/articles/cat_articles_content.php?art_id=97&title=doctrine-of-severability

[2]D D Basu, Human Rights in Constitutional Law, 217(1994). Also see, Fielding v Thomas, (1896) AC 600; Great W Saddlery v R, (1921) 2 AC 91.

[3]Pollock v Farmers’ Loan & Trust Co, (1895) 158 US 635; Lynch v US, (1933)292 US 571. In El Paso R Co v Gutierrez, (1909) 215 US, 87, it was held that if the Court finds that an offending portion of the statute to be severable, it will be the duty of the Court to declare only the offending part invalid and maintain the rest of the statute.

[4]   (1885)114 US 270.

[5]Article 13. Laws inconsistent with or in derogation of the fundamental rights.— (1) 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.

(2) 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.

(3) In this article, unless the context otherwise requires,—

(a) “law” includes any Ordinance, order, bye‐law, rule, regulation, notification, custom or usage having in the territory of India the force of law;

(b) “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

[6]Explaining the import of the term ‘justiciable’ in the context of American Constitution, Christopher N May and Allan Ides observe: ‘Stated very broadly, a matter is deemed justiciable, ie one over which an Article III court may exercise authority if it possesses a sufficient number of those characteristics historically associated with the judicial function of dispute resolution’ Christopher N May and Allan Ides, Constitutional Law‐ Power andFederalism, 93 (2004).

[7]Aetna Life Ins Co v Haworth, 300 US 227,240‐241(1937), where it was observed that ‘[A] justiciable

controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from that

is hypothetical or moot’. ‘The term justiciability refers to a body of judicially created doctrines that define

and limit the circumstances under which an Article III federal court may exercise its constitutional authority,

including its authority to engage in judicial review’.

[8]A K Gopalan v State of Madras, AIR 1950 SC 27(107). In this respect the Court has supremacyover the

legislature.

[9] Mahendra P Singh, v N Shukla’s Constitution of India, 36 (2008).

[10]Golak Nath v State of Punjab, AIR 1967 SC 1643.

[11]   (1950) SCR 88, 100. Per Kania, CJ.

[12]D D Basu, Commentary on the Constitution of India, 689, Vol 1(2007).

[13]   H M Seervai, Constitutional Law of India, 421(1991).

[14](1950) SCJ 174.

[15](1957) SCR 930.

[16]Also see, Punjab Province v Daulat, (1942) FCR 1; Chintaman Rao v State of Madhya Pradesh, (1950)

SCR 759 ;State of Bombay v F N Balsara, (1951) SCR 682. State of Bihar v Kameshwar Prasad, AIR 1952

     SCR 889 ;Harakcahand v Union of India AIR 1970 SC 1453 at 1468.

[17]RMDC v Union of India, (1957) SCR 930. Also see, KihotoHollohanvZachilhu, AIR 1993 SC

412.

[18]AIR 1919 P C 145.

[19]   AIR 1950 SC 27

[20]   AIR 1950 SC 124

[21]   AIR 1993 SC 412

[22] (1984) 1 SCC 222

[23]AIR 1957 SC 628

[24]AIR 1962

[25]Gonzalez v. Carhart, 127 S. Ct. 1610, 1639 (2007)