In aspect of fundamental rights, Article 13 of the Indian Constitution bequeaths upon a framework on interpretation of laws which are inconsistent or in derogation to the fundamental rights.

When a certain part of law is declared to be unconstitutional, a dilemma arises with respect to the whole statute where the provision was encapsulated. Whether the whole statute is infringing the constitution and void or only that certain provision stands invalid?

Article 13 clearly states in the definition of law that it is not exhaustive. As a result, this nature of definition attracted the issue of the Courts that

Whether any constitutional amendment is implemented which abridges any part of the fundamental rights enshrined in the Part III of the Constitution, that would be also contemplated as a law within the ambit of Article 13?

The Supreme Court in the Golaknath case, after rejecting the contention twice stating that a Constitutional Amendment would also be evaluated as law; held that

Even a Constitutional Amendment would be termed as void and unconstitutional to the extent, if it infringes any of the fundamental rights.

Article 13(1) relates to the existing laws in force which were in force before the commencement of the Constitution where the Court has to declare the pre-constitution laws void if they are conflicting with the fundamental rights.

Article 13(2) related to the laws which are made after the commencement of the Constitution, the state shall not make any laws which curtails any fundamental rights enshrined in the part III of the Constitution.

Thus when Article 13 came up before the Courts in the above cases for judicial review, various doctrines have evolved while interpretation of provisions of Article 13 of which one is
Doctrine of Severability.

DOCTRINE OF SEVERABILITY

The doctrine of severability is often regarded as doctrine of separation. When a part of the law is found to be unconstitutional, if the entire law does not stand inconsistent with the fundamental rights, only the repugnant provision will be separated from the law and the remaining law would remain unaffected and would not stand void due to the invalidity of one particular provision.
This is called Doctrine of Severability.

Though the Courts has made a contention that, the unconstitutional provision of the law would be separated thus giving effect to the remaining law only if its severable in entirety from the existing law, Or after the separation of the invalid part, the remaining valid law could not satisfy the intent of the legislature in enacting the statute; the law would be declared unconstitutional and void in totality.

EVOLUTION OF THE DOCTRINE

The Doctrine of Severability was not emerged and found upon after the Indian Constitution. It has been in existence in England way back in 1870s where in for the first time it was applied in

Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Company Ltd, 1876

The House of Lords struck down the repugnant provisions of a contract, thus declaring the remaining contract consistent and valid.

Over the period f time, it was adopted in fullness included in the Constitution of USA, Australia, Malaysia, etc.

APPLICATION OF THE DOCTRINE

In A. K. Gopalan vs. State of Madras , AIR 1950 SC 27

The Supreme Court observed that Section 14 of the Preventive Detention Act, 1950 would be repugnant and subsequently it would be separated from the rest of the Act, thus holding the remaining act valid as the intent of the legislature is fulfilled.

The Supreme Court also observed that in the advent of an emergency, only the repugnant provision of the Law so far as it is feasible, can be severed thus keeping the rest of the Law’s arrangement, nature and the structure relevant and consistent and it was sufficient to attain the purpose of the Law.

In State of Bombay vs. FN Balsara , AIR 1959 SC 138

In the Bombay Prohibition Act, 1949 some provisions of the act were violative in nature thus declaring it unconstitutional. Though the whole Act was kept intact because the violative provisions were not destroying the rest part of the Act thus were exempted from declaring the whole Act void.

In Kihoto Hollohan v. Zachillu, 1992 SCR (1) 686 (known as defection case)

The paragraph 7 of the Tenth Schedule which was inserted by the 52^nd Amendment Act which was brought to prevent frequent defections which were destroying the democratic sanctity was declared unconstitutional for violating the provisions under Article 368(2). Thus, held the 10^th Schedule except paragraph 7; consistent and relevant by applying the Doctrine of Severability.

In D. S. Nakara vs. Union of India, 1983 AIR 130, 1983 SCR (2) 165

In the struggle for recognition of pensioner’s rights, the Supreme Court held a landmark judgement which struck down many provisions of the Pension Act, 1871, and held that the Constitution guarantees every citizen the right to have social and economic security.
In this case, the Supreme Court severed the repugnant provisions of the Pension Act and struck it down keeping the rest of the Act valid and Constitutional.

In Minerva Mills vs. Union of India, 1980 AIR SC 1789

For being repugnant to the amending power of the Parliament;
The Supreme Court struck down sections 4 and 55 of the 42^nd Constitutional Amendment Act for being beyond the amending power of the Parliament; declaring the rest of the Amendment Act valid and constitutional.

In R. M. D. C vs. Union of India, 1957 AIR 699, 1957 SCR 874

The various intricacies of the Doctrine of Severability was explored by the Supreme Court, thus establishing the rules on applicability of Severability was laid down as;

1. The main principle to be considered while exercising the Doctrine of Severability is the intent of the legislature and the purpose of the enactment is to be given prominence, thus while doing so; the history on account of which the legislation was formed is to be appraised.
2. If the repugnant provision of the Act is severed and struck down, the left over legislation is impassable with the existing framework or if numerous alterations and modifications are to be instituted to give the existing law materiality; it would be appropriate to struck down the law in its entirety.
3. While severing the valid parts of the law from those of repugnant provisions, the intent of the legislature is to be given prominence. The Courts has to interpret whether the legislature would have implemented the valid part while striking down the inconsistent portions of the law.
4. When the provisions are severed and distinct from that of the invalid provisions, if the law can be operative only as a whole in a single framework; the inconsistent part of the statute will affect the relevant part thus changing the whole law as void.
5. As in the above case, after the separation of the provision; if the valid and consistent part of the law plummets down to be attenuated thus defeating the legislature’s intention of enactment of the statute; it would be ideal to struck down the provision entirely.
6. After the separation of the inconsistent provisions from the valid ones, if it is found that they are quite distinct and disparate, then it will be upheld notwithstanding that the rest had become enforceable.

LIMITATION OF THE DOCTRINE

With the 24^th Amendment Act of the Indian Constitution of the year 1971, inserted that

“Nothing in this Article shall apply to any amendment of this Constitution made under Article 368”

The main motive of this amendment was explicitly to suppress the power of the Judiciary to oversee the arbitrary powers of the Parliament in the law making process thus reducing the intervention of the judiciary in the Part III of the Constitution enshrined with the fundamental rights.

Though this amendment came across harangue criticism at that time and was upheld in the Keshavanada Bharti case, it restricts the power of judicial review.

CONCLUSION

This Doctrine of Severability holds an indispensable mantle in the preservation of the fundamental rights guaranteed by the Constitution; with all its prominence unblemished a predilection is conferred upon rights of a citizen rather than to the laws of the whimsical legislature.

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Author: Aathira Pillai from Mumbai University.

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