Study Notes: Doctrine of Severability

By Mohd. Sahil Khan 16 Minutes Read

Introduction

Article 13 occupies a pivotal position within the Indian Constitution, and the doctrine of severability serves as a critical corollary to its operation. Fundamental rights are the supreme right enshrined in the Constitution to the extent that it is considered non-amendable in nature.[1] This article acts as a legal litmus test, evaluating the compatibility of both pre-existing and subsequently enacted legislation with the enshrined fundamental rights. The doctrine of severability is essentially a subset of Article 13; it provides the operation of law concerning its validity and the extent of such law being valid or void. The language of Article 13(1) clearly implies that it talks about pre-constitutional law as it emphasizes the laws in force before the commencement of the Constitution, rendering laws ‘to the extent of such inconsistency, be void.’ Meanwhile, the language of Article 13(2) mandates that the State not make laws that are ‘to the extent of contravention, be void.’ The doctrine of severability stems from the fundamental principle of judicial deference to the legislature. Courts presume that legislatures enact laws with a well-defined purpose and a desire to achieve a specific social good. When a court encounters a law containing both valid and potentially problematic provisions, severability allows it to uphold the legislature’s intent, at least in part, by isolating and nullifying the offending sections. This approach prevents the entire law from being struck down, potentially creating a legislative vacuum and disrupting the intended legal framework.

Background

The doctrine of severability has a long and complex history, evolving alongside the concept of judicial review. Early legal systems often held that the presence of any invalid provision rendered the entire law void. This approach, known as the “doctrine of inseverability,” could lead to unintended consequences, potentially invalidating well-intentioned legislation plagued by minor technical errors or inconsistencies.

Over time, courts began to recognize the benefits of severability. One of the earliest documented applications can be traced back to the landmark 1819 US Supreme Court case, McCulloch v. Maryland[2]. In this case, the Court invalidated a specific provision of a state law that attempted to tax the national bank, while upholding the rest of the law. This decision established the principle that courts could sever invalid portions of a law without affecting the validity of the remaining provisions.

The origin of this doctrine can be traced in the Law of Contracts, which enumerates that if any part of a contract becomes unenforceable due to its illegality, the rest of the contract, being valid, can be enforced. The doctrine has undergone several changes to become a robust one that we are witnessing now. Earlier legal systems operated under the impression of inseverability, which did not consider the existing legal provisions of an Act; rather; it would invalidate the entire Act even if a part of its provisions were in contravention of the Act. It was a pedantic approach as even minor discrepancies invalidated the entire law which led to the disruption of established legal norms; thus, creating a legal vacuum. Courts had little flexibility to salvage legislation. They were forced to choose between upholding an entirely flawed law or invalidating the entire legislative effort.[3]

The problems that arose due to the principle of inseverability created a shift in the application of law thus leading to the evolution of the concept of Severability. There were certain other factors which contributed to the rise of the principle:[4]

• Judicial review: The burgeoning development of judicial review necessitated a framework that would reconcile the competing interests of legislative supremacy and the safeguarding of fundamental rights. The doctrine of severability emerged as a viable solution, providing a nuanced approach that balanced these concerns.
• Evolution of legal reasoning: Over time, a paradigm shift occurred in judicial interpretation, transitioning from a strictly ‘literal interpretation’ approach to a ‘purposive interpretation’ one. This evolution fostered the development of the doctrine of severability, which aligns with and supports the objective-oriented interpretation of law.
• Legislative drafting practices: The growing complexity of legislative processes inevitably led to a higher likelihood of technical errors or inconsistencies within the drafted laws. The doctrine of severability emerged as a safeguard in such situations, empowering courts to uphold the central legislative objectives while simultaneously addressing these specific problematic provisions.

The essence of the doctrine

The doctrine of severability entails that a part of pre-constitutional law or post-constitutional law can be deemed void and be severed from the rest of the operative part of the Act. Now, the question arises: what is the need for severance? This doctrine provides that when there is a law that either wholly or partly violates or infringes upon fundamental rights, such law is deemed to be unconstitutional and cannot remain in operation. Therefore, there is a need to sever the part that curtails or violates fundamental rights.[5] The key feature of the doctrine of severability is that it does not render the entire Act inoperative; rather, it makes the void portion inoperative and severs it from the rest of the operative part of the law. 

Critical Analysis

• Difference between ‘inconsistency’ and ‘contravention’

If we closely look at the language of Article 13(1) and Article 13(2), it differs from each other as in Article 13(1), the law has been deemed void ‘to the extent of inconsistency’ while in Article 13(2), the law has been declared void ‘to the extent of contravention’. While ‘inconsistency’ and ‘contravention’ may initially appear synonymous, a closer inspection uncovers a nuanced legal differentiation. However, these two terms relate to the genesis of the law.

The word ‘inconsistency’ has been used in Article 13(1) which suggests that there was no mandate upon the legislature to draft any specific legislation as it relates to the pre-constitutional laws. The laws were already drafted, and fundamental rights came into existence post-independence; therefore, it was the duty of the State to examine the laws that conflicted with the fundamental rights and then declare them void for being ‘inconsistent’ with the fundamental rights.[6]

The word ‘contravention’ has been used in Article 13(2) because this clause mandates the State to make laws that deal with post-constitutional laws. So, in this scenario, the fundamental rights have already been established under the Constitution of India, and the State must abide by it; thus, it shall not make any law that is in ‘contravention’ of the fundamental rights.

•  Imbroglio associated with severability

The earlier mentioned example of the pie chart does not take into account the fact that there might be a situation wherein the void portion and valid portion are so intertwined that it is impossible to sever the void portion from the valid portion; what will happen in such circumstances?  In such a situation wherein the void portion cannot be severed, the whole Act will be rendered void, and the entire Act will be eclipsed.[7]

• Effect of severability

When any law or part of it is severed, it gets eclipsed and does not remain in force until the material defects are eliminated. The voidness does not mean that it never existed or it never will; it is just the case that it is removed for the time being. Such a law can again come into existence, provided that an amendment is made by the legislature, resulting in the removal of discrepancies. However, if the act is repealed by the Parliament, then only a fresh enactment can bring the severed law or Act into force. [8]

Application of doctrine in other legal systems

• United Kingdom

The concept of severability emerged from a landmark case of Nordenfelt v. Maxim Nordenfelt Guns and Ammunitions Company Ltd[9]. In this case, Thorsten Nordenfelt, a Swedish gun manufacturer who had specialized in the making of armaments, sold his business to an American company, Maxim Nordenfelt Guns, and Ammunitions Company Ltd, and prohibited him from working for any rival business in the world for the next 25 years. The question before the court was whether the enumerated terms and conditions could be severed. The court ruled that since the restrictive covenant was too broad, it couldn’t be applied as a whole as the covenant is in ‘agreement of restraint of trade’; the court also ruled that it would be unfair if the person who has established such a vast business empire is unable to avail its advantage. Therefore, the court applied the doctrine of severability and severed the unreasonable geographical restriction; however, it allowed the rest of the provision of the covenant to not work for the competitor for 25 years.

The case also alluded to the “blue pencil” test, a method for severing invalid portions of a contract. This test allows courts to mentally strike out the offending language while ensuring the remaining provisions remain coherent and enforceable. This case laid the inception of the concept of severability.

• United States

The concept of severability in the United States started its marking via judicial review and legal reasoning, however; it got solidified by the aforementioned case of McCulloch v. Maryland (1819), where the court ruled that the invalid part of the law can be severed from the valid part of the law. Courts have adopted a two-pronged test to ensure a more consistent application of severability. This test examines whether the invalid provision can be severed from the remaining law. In other words, can the remaining provisions function independently and achieve the intended legislative objective without the invalid portion? Additionally, the court considers whether severing the provision significantly alters the overall purpose of the law as envisioned by the legislature. This approach to severability has proven adaptable, being applied to diverse legal domains including federal and state legislation, administrative regulations, and even international treaties.

• France

In France, the doctrine is known by the name of ‘principe de divisibilité’. Likewise, the United States, France also had a strictly literal interpretation approach, which left little room for judicial interpretation; they did not rely upon the intent of the legislature but rather upon the wordings of the law. With judicial review and the concept of ‘purposive interpretation,’ France shifted its approach in the 19th century and inculcated the ‘Principe de divisibilité’ principle. With various case laws, they identified that invalid provisions should be severed from the valid one, and emphasis should be laid upon the legislative intent rather than mere wordings.

Conclusion

The doctrine of severability serves as a cornerstone of Indian constitutional law, ensuring a harmonious balance between legislative supremacy and the protection of fundamental rights enshrined in Article 13. It empowers courts to surgically remove problematic provisions from a law, upholding the core legislative intent while safeguarding individual liberties. This nuanced approach prevents the unintended consequence of striking down an entire law due to a single flaw. Severability fosters legislative efficiency by allowing well-intentioned legislation, even with minor errors, to remain functional.

As the legal landscape evolves, the application of severability will continue to be refined. Courts will likely grapple with the tension between upholding legislative intent and ensuring a clear separation of invalid and valid portions of a law. However, the core principle remains: the doctrine of severability serves as a vital tool for upholding both legislative authority and the fundamental rights of Indian citizens.

[1]  Golaknath v. State of Punjab (1967 AIR 1643).

[2]  McCulloch v. Maryland, 17 US (4 Wheat) 316 (1819).

[3] Shin Satellite Public Co. Ltd v. M/S Jain Studios Limited³ (2006) 2 SCC 628.

[4] RMDC v. Union of India 1957 AIR  628, 1957 SCR 930.

[5]  Kihoto Hollohan vs Zachillhu 1992 SCR (1) 686, 1992 SCC SUPL. (2) 651 

[6] Keshavananda Bharati v. State of Kerala AIR 1973 SC 1461; (1973) 4 SCC 225; (1973) Supp SCR 1

[7] A.K. Gopalan v State of Madaras, 1950 SCC 228.

[8] State of Bombay v. F.N. Balsara, 1951 SCC 860.

[9] Nordenfelt v. Maxim Nordenfelt Guns and Ammunitions Company Ltd, 1894 AC 535.

Mohd. Sahil Khan