What is Doctrine of Severability?

By Asra Mujtaba 9 Minutes Read

Severability means to separate, break up, part. Doctrine of severability means when any provision of a particular statutes is unconstitutional, against the constitutional limit or offends then the whole statutes is not void but only to the extent of provision which is against the constitutional limit is void and   that provision is severable from the rest of the statute, only that offending provision will be declared void by the Court and not the entire statute. When a part of a statute is declared as a void unconstitutional then the question is arising whether the whole statute is unconstitutional so to solve this problem the Hon’ble supreme court devised a doctrine of Severability to separate the unconstitutional or the void part from the whole statutes so that the whole statutes did not become void or unconstitutional.

 According to this doctrine in a statute if both good and bad provisions joint by the word “and” or “or” and if the good provision is capable of being enforced independently without the enforcement or existed of the bad provision then by applying the doctrine of severability both provisions separated from each other and the good one will be upheld as valid and given effect to. On the opposite hand, if there’s one provision which is capable of getting used for a legal purpose also as for illegal one, it’s invalid and can’t be allowed to be used even for the legal purpose. When any provision of a statute is against the fundamental right   under the part three of the constitution then just the part which is against the fundamental right is void not the whole statute by separating the unconstitutional part from the constitutional part.  If it is there that the valid portion is combined with the invalid portion, it’s impossible to separate them. Then in such cases the court will leave it and declare the entire Act as void. This process of doing it’s referred to as the doctrine of severability.

is declared by the court as void not the whole law if the offending provision is separated from the legal and constitutional provision then only the offending provision is declared void not the entire statutes. 

Article 13 of the Indian constitution uses the word “to the extent of such inconsistency be void” which means that when any provision of a law is unconstitutional or against the fundamental right then only to the extent of those provision which is in a question

A.K Gopalan vs State of Madras in this case Hon’ble court held that from section 14 the word preventive detention should be removed then it would be valid and the act is valid and effective this removal will not affect. The doctrine was further was also applied in D.S Nakara vs Union of India where any provision of the act is unconstitutional then what provision is void it was that the act remained valid and the portion which was not consistent was declared as invalid and this was because it was easily separated from the valid part.

In State of Bombay vs Balsara a case under Bombay Prohibition Act, 1949 it has been observed that the provisions which are declared void don’t affect the whole statute, therefore, there’s no necessity for declaring the statute as invalid.

In R.M.D.C VS Union of India  Section 2(d) of the Prize Competitions Act, 1955 which was broad enough to include competitions of gambling nature as well as competitions involving skill, was involved. The Supreme court held that the provision of act was severable and struck down the provision which did not involve skills.

Doctrine of Eclipse:

Eclipse occurs when one object over shadow another one. Doctrine is based on the principle that when any act or provision is against the fundamental right or violates the fundamental right then act and provision is not void ab initio or illegal but remain unenforceable it is not dead but over shadow by the fundamental right.  Rights are not wiped out from the statute books, they can be enforced again if the restrictions posed by the fundamental rights are removed by the constitutional amendment.

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. Such laws are not dead; they come alive if the restrictions posed by the fundamental rights of the constitution are removed. Also, such eclipsed laws are operative for cases that arose before the commencement of the Constitution.

Article 13 clause 2 prohibits law from making any law which takes away or abridges fundamental rights provided under part III of Indian constitution and if after these restrictions if state makes any law then the law is prohibited void ab initio ultra vires to the extent of contravention.

In Deep Chand vs State of U.P.   Hon’ble supreme court held that doctrine of eclipse is not applied on the post constitutional law and post constitutional law made under Article 13 (2) which is against the fundamental rights or which contravenes the fundamental right is void initio they are dead law and unconstitutional because amendment cannot revive it.

In State of Gujarat vs Sri Ambica Mills   In this case Hon’ble Supreme court held that the doctrine is applied only for the citizens of India but the law remains in operation as against non-citizens who are not entitled to fundamental rights.

In Bhikaji vs State of M. P.  In this case, the supply of CP and motor vehicles Berar Amendment Act of 1947 authorized the Government of the State to compensate the whole business of motor transport in the province to the exclusion of transport operators. This provision, although it is valid when approved, was evacuated being entry into force of the Constitution in 1950, as they violate Article 19 (1) (g) of the Constitution. However, 1951, paragraph (6) of Article 19 was amended by the law’s first constitution amendment, as so to authorize the Government to any business monopolies. The Supreme Court held that “the effect of the amendment was to eliminate the shadow and make the challenged law free from all stain or infirmity.”

It was effective against citizens and non-citizens after the constitutional impediment was removed. This law was simply overshadowed for the moment, for fundamental rights. As soon as the eclipse law begins to operate from the date of such removal it is eliminated.

Asra Mujtaba