4/13/2021 Doctrine of Severability - Important Judicial Doctrines for UPSC

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Doctrine of Severability - UPSC

Notes

Legal doctrines and principles are important

topics for the UPSC IAS exam as they help
understand how the judicial machinery works in
the country. You can also expect questions
based on them in the UPSC Prelims. In this
article, you can read all about the Doctrine of
Severability for the UPSC exam
(https://byjus.com/ias-exam/).
Doctrine of Severability UPSC Notes:-
Download PDF Here

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4/13/2021 Doctrine of Severability - Important Judicial Doctrines for UPSC

Doctrine of Severability
With the adoption of the Constitution of India in
the year 1950, Part III in the form of
fundamental rights (https://byjus.com/free-ias-
prep/fundamental-rights/) also came into
effect.
The fundamental rights are a set of
inherent rights which guarantees to every
citizen of this country a life of digni ed
existence and holistic all-round
development.
Any law that infringes upon these rights is
liable to be struck down by the courts.
The question however arises as to what
happens when only a portion of the
impugned law is violative of fundamental
rights, and it is in instances like these that
the doctrine of severability is invoked.
The doctrine derives its validity from Article 13
which states,
               “All laws in force in India, before the
commencement of the Constitution, in so far as
they are inconsistent with the provisions of
fundamental rights shall to the extent of that
inconsistency be void.”
As an extension of Article 13, the doctrine
states that when some particular provision
of the statute infringes or violates the
fundamental rights, but the provision is
severable from the rest of the statute, and
then only that provision will be declared
void by the courts and not the entire
statute.
The doctrine essentially lays down that if
violative and non-violative provisions are
separated in a way that the non-violative
provision can exist without the violative
provision, then the non-violative provision
will be upheld as valid and enforceable.

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Doctrine of Severability – Cases

One of the earliest instances of using the
doctrine was the case of Nordenfelt v. Maxim
Nordenfelt Guns and Ammunition Company Ltd,
1876 where the court struck down the violative
portion of a contract but held that the rest of the
contract could go ahead after severing the
violative portion.
The doctrine of severability was discussed at
length in the case of R.M.D.C v. the State of
Bombay, and the court laid down the following
principles.
In order to nd out whether the valid part of
the statute can be separated from the
invalid part, the intention of the legislature
is the determining factor.
In case the valid and non-valid parts of a
particular statute are inseparable then it
will invariably result in the invalidity of the
entire statute.
When the statute stands independently
after the invalid portion is struck out then it
will be upheld, notwithstanding that the
rest of the Statute has become
unenforceable.
In cases where the valid and invalid parts
are separable but both of them were
intended to be part of the same scheme,
then the whole scheme will be invalid.
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4/13/2021 Doctrine of Severability - Important Judicial Doctrines for UPSC
There may be instances where the valid
and invalid parts are separable and not
part of the same scheme, however,
invalidating the valid part leaves the rest
too thin and truncated, then also it will be
invalidated as a whole.
Severability is to be determined by reading
the statute as a whole and not speci c
provisions or parts.
In order to nd the legislative intent behind
a statute, it will be legitimate to take into
account the history, object, title and
preamble.
Also get a list of the important Supreme Court
judgements (https://byjus.com/free-ias-
prep/important-supreme-court-judgments-
upsc/) explained for the UPSC exam in the
linked article.
In AK Gopalan v. State of Madras, the Court
found Section 14 of the Preventive Detention
Act to be violative of Article 14 of the
Constitution. The Court added that striking
down Section 14 will not change the object of
the Act and thus only the impugned provision
will be struck down and not the act as a whole.
A BYJU’S
similar observation
IAS Online was made in DS Nakara v.
Union
Classroom
of India.
Program (2021-
22)
In State of Bombay v. FN Balsara, it was held
that the violative provisions of the Bombay
Prohibition Act, 1949, do not affect the validity
of the entire Act and thus there was no need to
invalidate the statute altogether.
The Supreme Court declared Sections 4 and 55
of the 42nd Constitutional Amendment Act
(https://byjus.com/free-ias-prep/42nd-
amendment-act/) invalid, for being beyond the
amending powers of the Constitution but held
the rest of the Act valid.
(https://byjus.com/ias/online-
Inclassroom-ias/)
Kihoto Hollohan v. Zachillu,  the Court upheld
the validity of the Tenth Schedule while striking
down its paragraph 7 for violating the provisions
of Article 368(2).
Daily Updates – 12/04/2021
Conclusion
UPSC Mains 2020 Results Declared
(https://byjus.com/free-ias-prep/upsc-
The doctrine of severability opens up the way
mains-result/)
forDaily
theFree
applicability ofNotes
Current Affairs judicial review
(https://byjus.com/free-ias-prep/judicial-
(https://byjus.com/current-affairs/)
review/). The courts
Comprehensive through
News Analysis - 12 judicial review
Apr, 2021 (https://byjus.com/free-ias-
invalidate the laws which infringe upon the
prep/upsc-exam-comprehensive-news-
fundamental rights of individuals. When an
analysis-apr12-2021/)
individual contends
The Hindu Video that
Analysis - 12aApr
particular legislation
is 2021
taking away his/her fundamental rights, and
(https://byjus.com/free-ias-
prep/hindu-video-analysis-apr12-2021/)
invokes the Court’s right to judicially review that
PIB - 11 Apr, 2021
decision, the burden of proof lies on him/her for
(https://byjus.com/free-ias-prep/upsc-
proving how the impugned legislation has
pib-summary-analysis-apr11-2021/)
interfered with his/her rights.

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4/13/2021 Doctrine of Severability - Important Judicial Doctrines for UPSC
The doctrine
Topic of the Dayof
– severability
United Nations is a principle of
Convention on the Law of the Sea
great eminence in the Indian constitutional
(UNCLOS) (https://byjus.com/free-ias-
setup. It is the touchstone against which the
prep/unclos/)
validity
This Dayofinlaws
Historyis– tested. It is
12 Apr 1801 - a check on the
unfettered
Ranjit Singhpowers of the legislature
Crowned 'Maharaja of the which if left
Punjab' (https://byjus.com/free-ias-
on its own has the capability of going rogue and
prep/this-day-in-history-apr12/)
invading the very basic rights guaranteed to
UPSC 2021 - Noti cation Released
individuals.
(https://byjus.com/free-ias-prep/upsc-
noti cations/)
Frequently Asked
UPSC 2020 Interview Dates Questions on

Doctrine of Severability
Announced (https://byjus.com/free-
ias-prep/ias-interview-questions/)
Gist of Yojana - February 2021
Q(https://byjus.com/free-ias-prep/upsc-
1. What is the Doctrine of Severability?
Ans. The doctrine of severability means that
exam-preparation-gist-yojana-
february-2021/)
when some particular provision of a statute
Gist of Kurukshetra - March 2021
offends or is against a constitutional limitation,
(https://byjus.com/free-ias-prep/gist-
but that provision is severable from the rest of
of-kurukshetra-march-2021/)
the statute, only that offending provision will be
declared void by the Court and not the entire
statute.
Weekly Updates
Q 2. What are the key elements of a valid
Economy This Week (3rd Apr to 9th
contract?
Apr 2021) (https://byjus.com/free-ias-
Ans. There are four elements of a valid contract.
prep/economy-this-week-03apr-to-
09apr-2021/)
These include agreement, capacity,
Gist of EPW: Mar 2021 Week 3
consideration, and intention.
(https://byjus.com/free-ias-prep/gist-
of-epw-march-week-3-2021/)
QWeekly
3. Which
GK and are the
Current famous
Affairs Quiz cases of the
Doctrine of16Severability?
Apr 10 – Apr
(https://byjus.com/free-ias-prep/upsc-
Ans. Given below are the important Doctrine of
exam-weekly-gk-current-affairs-quiz-
Severability cases:
apr10-apr16-2021/)
UPSC Monthly Magazine - February
AK Gopalan v. State of Madras
2021 (https://byjus.com/free-ias-
State of Bombay v. FN
prep/upsc-monthly-magazine/) Balsara
 ViewKihoto
more... Hollohan v. Zachillu
(https://byjus.com/free-
ias-prep/gk-current-affairs-quiz/)
Q 4. What makes a contract void?
Ans. The contract can also be considered void if
an unlawful object or consideration is involved
in Latest
the agreement.
Current Affairs
Last Updated: 09-04-2021

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