DOCTRINE OF SEVERABILITY

Basis of Doctrine

To use the word doctrine of severability is to imply what the term means. “Severe” is used herein its literal sense, which means “the section of the provision to be severed.” According to the severability concept, a statute is only invalid to the degree of its contradiction or violation. As a result, even if a provision is partially violated, the inconsistency must be separated and construed as a whole. The remainder of the provision, which is consistent, may stay in place and be put to use. However, if a situation arises in which the legitimate component of the provision is separated from the invalid portion, the entire provision will be null and void. The doctrine of severability is sometimes called the doctrine of Separability. In other words, it’s obvious that if a component of legislation becomes unconstitutional because it conflicts with basic rights, just that part of the law in issue will be considered null and invalid by the courts, and not the entire statute as a whole. In the theory of severability, the Court declares just the offending section invalid, not the entire law, where a portion of a statute contravenes a constitutional restriction but is severable from the remainder of the statute.

Doctrine of Severability

Article 13 of the Indian Constitution reads as follows: “All legislation in force in India prior to the beginning of the Constitution will be null and invalid to the extent of their incompatibility with the principles of basic rights”. The above-mentioned phrase has a critical feature that has to be addressed in detail. An unlawful portion of a statute or legislation will be ruled void if it is separable from the rest of the statute or law that violates basic rights guaranteed by the constitution. Nevertheless, if the unlawful portion of the act is intertwined with the rest of the law, the whole thing would be nullified. Consequently, severability is essential in invalidating a part of the legislation that is unconstitutional.

The Doctrine of Severability in Article 13 can be understood in two dimensions:-

(i) Article 13(1) validates all Pre-Constitutional Law and thereby declares that all Pre-Constitutional laws in force before the commencement of the Indian Constitution shall be void if they are inconsistent with the fundamental rights[1].

(ii) Article 13(2) mandates the State that it shall not make any law that takes away or abridges the fundamental rights conferred in Part III of the Indian Constitution and any law contraventions this clause shall be void[2].

Evolution of the Doctrine

Although the Doctrine of Severability was first articulated in the Indian constitution, it had existed in the English court system for many years prior to that date. The theory of Severability was used for the first time in the case of Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Company Ltd[3], It was agreed upon by both parties in the House of Lords that the plaintiff- a gun and other weapon manufacturers—would no longer engage in any manufacturing of firearms or weapons anywhere in the globe and would not engage in competitive activities with the defendant for a period of 25 years. However, even if the terms of the contract were aimed at benefiting the parties, the restraint of commerce was found to be unlawful from the start under common law since it was against the parties’ interests. As a result, the court ruled that the contract went beyond the pale of what could be considered reasonable under the circumstances. The question was concerning the severability of the contract, i.e., whether or not the unreasonable terms could be broken apart and yet make the contract legitimate. For this reason, even though the contract’s restraint of trade provision was unconscionable, the court applied what’s known as a blue pencil doctrine (which is similar to the Doctrine of Severability) and allowed the plaintiff to trade as usual, as long as they didn’t make guns or ammunition anywhere in the world.

The idea of severability has now reached countries in both the east and west. This theory was developed in the well-publicised case of Malaysian Bar & Anr. V. Government of Malaysia[4], this originated in India and is now followed in Malaysia. When discussing the theory of severability in relation to India, it’s important to understand how Article 13 of the Indian Constitution came to be. If any element of the legislation is found to be violative of the Constitution, this concept comes in and takes effect. In the framework of the Indian Constitution, basic rights are those that are protected by the document. As a result, this theory will be effective, especially when connected to Part III of the Indian Constitution. Many nations’ constitutions, including the United States, Australia, Malaysia, and India, eventually embraced the idea of Severability. The basic liberties of the United States and the idea of severability from the United Kingdom were included in the Indian Constitution. The Indian constitution preserves the concept of ‘natural justice’ by utilizing the Doctrine of Severability.

Salient Features of the Doctrine

Widens the Scope for Judicial Review on Unconstitutional Parts of any Law:- Article 13 of the Indian Constitution establishes the doctrine of severability, allowing courts to evaluate any legislation or part of a law that they find to be unconstitutional or to violate basic rights. It gives the Supreme Court and the High Court the ability to apply a modern approach to the law while interpreting and reviewing pre-constitutional and existing statutes. Although there has been some debate over the validity of judicial action in constitutional concerns, judicial review has been expanded in many situations to preserve the fundamental rights provided in Part III of the Indian Constitution. Parliament and state legislatures are prohibited from passing legislation that would limit the basic liberties granted to all citizens. If part of the legislation is unconstitutional, it will be useless until it is amended.

The Doctrine of Severability- Landmark Judgments

In A.K. Gopalan v. State of Madras[5]the petitioner, a communist leader, was arrested under the Preventive Detention Act, 1950, and he challenged the preventive detention on the grounds that it is a breach of his fundamental rights under Articles 19 and 21 of the Indian Constitution. According to the Doctrine of Severability, only the section of the challenged Act that was unconstitutional would be invalidated, according to the Supreme Court. According to the ruling, the Preventive Detention Act’s Section 14 was illegal and null and invalid. Section 14 of the Preventive Detention Act of 1950 was struck down, while the rest of the act was upheld as constitutional.

In Minerva Mills v. Union of India[6], According to the court, Sections 4 and 55 of the 42nd Amendment Act (1976) were unconstitutional because they went beyond the amending jurisdiction of the parliament and were thus unenforceable. It proclaims the rest of the act to be legitimate.

Limitation in Enforcement of the Doctrine of Severability

Indira Gandhi introduced Article 13(4), which states that “Nothing in this article will apply to any modification of this Constitution made under Article 368,” to the Indian Constitution in 1971, as the 24th amendment. The amendment’s sole goal is to nullify the Supreme Court’s authority over parliamentary enactments under the Doctrine of Severability. As a result, modifications to Part III of the Indian Constitution, which deals with basic rights, were placed under the purview of the amendment system and judicial involvement was prohibited. Judges, members of the media, and members of the Constituent Assembly all panned the change. The amendment’s strict language cleared the door for a new provision requiring the President to give his assent to every Constitution Amendment Bill.

Critical Analysis

When using the concept of severability, it’s critical to remember the legislative objective and whether or not it aligns with the public interest. It does not mean that the contentious provision cannot be submitted to the courts after applying the criteria of reasonableness, public interest, and legislative purpose just because an element of pre-existing legislation becomes unlawful by examining post-constitutional law. Some nations, like Australia, have included the idea of severability into their constitution rather than relying on common law to apply it. After current laws have been clarified and corrected, the doctrine of severability must be applied as a corrective measure in new ones. The lawmakers would have a difficult time on their hands if even a single invalid clause in a bill rendered the entire statute null and void. The theory of severability also plays an important role in finding a middle ground between legislative action, tradition, customs, and contemporary requirements.

Conclusion

The Indian Constitution’s Doctrine of Severability is a key foundation for safeguarding citizens’ basic rights. It’s an acid test for validating any law that violates the Fundamental Rights, whether it was passed by the current parliament and legislative assembly or during the pre-constitutional period. This theory is relevant in every area of welfare state law, no matter how long it’s been around. At this point, validating the illegal component of the COVID-19 procedure, which violates a basic constitutional right, is important.

Author(s) Name: Alla Dhanalakshmi (Damodar Sanjivayya National Law University, Visakhapatnam)

References:

[1] Constitution of India 1950, art. 13(1).

[2] Constitution of India 1950, art. 13(2).

[3] Nordenfelt v. Maxim Nordenfelt Guns & Ammunition Company Ltd., 1894 AC 535.

[4] Malaysian Bar & Anor v Government of Malaysia 1987 [SC].

[5] In A.K. Gopalan v. State of Madras, AIR (1950) SC 27.

[6] Minerva Mills v. Union of India, 1980 AIR SC (1789).