CASE ANALYSIS OF R.M.D.C v.

UNION OF INDIA

BY

VANSHIKA SHARMA

INTERN

1st YEAR

LLOYD LAW COLLEGE, GREATER NOIDA

MOB- 8929361470

Gmail- vanshikasharma0811@gmail.com

26th April, 2020

THE APPLICATION OF DOCTRINE OF SEVERABILITY IN R.M.D.C. CASE

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 BACKGROUND OF THE CASE

The petitioners M/S R.M.D.C. had been doing their business of prize competitions in Mysore,
since 1948. Their business was governed by the Mysore Lotteries and Prize Competitions
Control and Tax Act, 1951. In this case basically Section 2(d) of the Prize Competition Act was
challenged. A Central Legislation called the Prize Competition Act, 1955 was passed following
an appeal from the various states of the country. This Act was welcomed by other states
including The State of Mysore. However, the State agreed to the Union’s exclusive jurisdiction
over the control of prize competitions. But what happened later was that the State itself passed an
ordinance amending certain provisions of the act to deem taxation powers upon themselves. This
action taken by the State was called into question by R.M.D.C (petitioners) and they regarded it
ultra vires the legislative competence of the State. It was also contended that the doctrine of
colourable legislation was applicable, as the State of Mysore was attempting to control the
conduct of prize competitions indirectly, by appropriating the powers of their taxation. The case
R.M.D.C v. Union of India1 was related to the constitutional validity as Article 19(6) of the
Constitution of India came into question. On this petitioner’s contention, strong arguments were
put by the respondents that the business of lotteries and gambling which petitioners were doing is
not covered under trade and hence no violation of the fundamental right under Part III of the
constitution. Mr. Palkhivala appeared on the behalf of the petitioner’s side and Mr. Seervai
appeared from the respondent’s side. Both the parties put forth their arguments and made
contentions on their points before the Apex Court. The case is based on the doctrine of
severability as to what part of the Act of prize competition is regarded as valid or not.

INTERNATIONAL LAW RELATED TO DOCTRINE OF SEVERABILITY

The practice of Doctrine of Severability has been in practice for a very long time and it is not a
new thing. It has been adopted in many countries like the United Kingdom, Australia, United
States of America, Malaysia and so on as well in our country which is India. In England, United
Kingdom the doctrine of severability goes back when it had originated in the case of Nordenfelt
v. Maxim Nordenfelt Guns and Ammunition Company Ltd 2. Then in other countries like the
United States of America where the first case of doctrine of severability was decided in the year
1876. After this a question evolved which question that if the Congress knew about the invalid
portion had it enacted it the first time. In this particular case the case was centred around the
fifteenth amendment of the American constitution that spoke about the voting rights not being

1R.M.D.C. v. Union of India, (1957) AIR SC 628

2 Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Company Ltd (1894) AC 535

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denied to the American male citizen on the basis of colour or race etc. The basic knowledge
drawn from these international cases was the sole purpose of the act, whether it would affect the
valid part of the Act after excluding the invalid part or not. If it stands invalid then the whole act
would become void. This was the basic contention made in the doctrine of severability.

FACTS IN ISSUE

A petition is filed by the applicant on the ground of their violation of the fundamental rights
under Article 32 of the constitution challenging that Article 19(6) has been violated as a
restriction is imposed on carrying on their business by the respondents. Further it was contended
by the respondents that Section 2(d) of the Prize Competition Act, 1955 doesn’t cover the
competitions related to the gambling but the petitioners were of the view that the definition of
prize competition under Section 2(d) of the Act is very wide and it not only covers the
competitions of the gambling nature but also those in which success depended to a substantial
degree on skill, which was a part of the petitioner’s business. Further, On behalf of the Union of
India this was controverted and it was contended by the respondents that the definition, properly
construed, meant and included only such competitions as were of a gambling nature, and even if
that was not so, the impugned provisions, being severable in their application, were valid as
regards gambling competitions.

PETITIONER’S ARGUMENT

a) Section 2(d) of the Prize Competition Act, 1955 was wide and covered all the competitions
which are of gambling nature and also those in which success depended to a substantial
degree on skill.
b) The respondents are imposing restrictions upon the petitioners and hence are violating their
fundamental right granted under Article 19(6) of the constitution.
c) It was contended by the petitioners that the invalid part of the Prize Competition Act, 1955
cannot be severed as the valid part would also be void as they are connected.

RESPONDENT’S ARGUMENT
a) The respondents argued that 'prize competition' as defined in s. 2(d) of the Act, properly
constructed, means and includes only competitions in which success does not depend to
any substantial degree on skill and gambling activities are not trade or business.

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 b) The petitioners cannot file the petition under Article 32 as there has been no violation
under Art. 19(1)(g), and that accordingly the petitioners are not entitled to invoke the
protection of Art. 19(6).
c) It was contented by the respondents even if some part of the Prize Competition Act is
invalid that should be removed but the valid part should stand valid and the whole Act
should not be entirely void.
The major bone of contention in R.M.D.C. v. Union of India is the doctrine of severability,
which can be understood as the doctrine which applies to both future and existing law. It means
the Court will not declare the entire Act as unconstitutional if some of its parts are invalid. In
other words, the valid part of that particular act will stand valid. In R.M.D.C. v. Union of India,
the whole case revolves around the constitutionality of the Prize Competition Act as to which
part of it stands as valid or invalid.

DOCTRINE OF SEVERABILITY
The doctrine of severability is also known as doctrine of separability. The doctrine was framed
by the Supreme Court to find a solution to the problem of validity of the laws which are declared
as unconstitutional. When a part of the law is declared unconstitutional then the question arises
whether the whole law is to be declared unconstitutional or part of it must be declared
unconstitutional. According to doctrine of severability, a law is void only to the extent of its
contravention with the Fundamental Rights according to Article 13 of the Constitution. In others
words, to understand this doctrine, we can consider the example of a rotten apple i.e. if the rotten
part of an apple is separated then the rest of it can be consumed. But if the rotten part is so
inextricably mixed with the healthy part that it cannot be separated then the whole apple will
have to be thrown away.

BASIS OF DOCTRINE
Article 13 is the main basis of the Doctrine of severability. It has two important provisions which
are Art.13(1) and Art.13(2).
a) Art.13(1) says all those laws which came into existence before the commencement of the
constitution are found to be inconsistent with the provisions of this Part must be declared
void to the extent of its inconsistency.
b) Art.13(2) says that the State shall not make any law which takes away or abridges the
rights conferred by this Part and any law made in contravention of this clause shall to the
extent of this contravention be void.

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 CASES RELATED TO DOCTRINE OF SEVERABILITY

In the case of A.K Gopalan v. State of Madras3, A.K. Gopalan(political leader) who was
detained in the Madras Jail under Preventive Detention Act,1950 challenged his detention by
stating that there was a violation of his Fundamental Right which were Article 19,21 and 22. He
argued that the right to movement was a fundamental right under article 19 and hence the
defence counsel must prove that the law of preventive detention was a reasonable restriction as
per the five clauses of article 19(2). The Supreme Court held that he was detained according to
the procedure established by law and rejected his argument. The supreme court at that point of
time believed that each article was separate in the Indian constitution.
In the case of State of Bombay v. F.N Balsara4The petitioner (F.N Balsara) contended that the
Bombay Prohibition Act which prohibited sale and possession of liquor in the state was
challenged on the ground that it has encroached upon import and export of liquors which is a
Central subject. It was argued that the possession, purchase, prohibition, use and sale of liquor
will have an effect on the imports. The court held that Act valid because the pith and substance
of the Act fell under the State List and not under the Union List even though the Act incidentally
encroached upon the Union Powers of Legislation.
The doctrine of severability was even used in the case of Minerva Mills v. Union of India5
where section 4 and 55 of the 42nd Amendment Act, 1976 was struck down for being beyond the
amending power of the Parliament and then it had declared the rest of the Act as valid.
Then in another case of Kihoto Hollohan v. Zachillhu6 which is very famously known as the
defection case. In this case the paragraph 7 of the Tenth Schedule which was first inserted by the
52nd Amendment Act of 1985 was declared as unconstitutional because it had violated the
provisions under Article 368(2). But, the whole part was not declared unconstitutional. So, the
rest of the Tenth Schedule excluding paragraph 7 was upheld by the Constitution.
In the case of State of Bombay v. The United Motors (India Ltd) 7Bombay Sales Tax Act,
1952 was questioned on its validity. It was contended by the respondents that this Act is invalid
as it violates their fundamental rights under Art.13, 14 and 19. It was said Act was a complete
code and provided for special machinery for dealing with all questions arising under it, including
questions of constitutionality, and, therefore, the petition was not maintainable.

3 A.K Gopalan v. State of Madras, (1950) AIR SC 27

4 State of Bombay v. F.N Balsara, (1951) AIR SC 318
5 Minerva Mills v. Union of India, (1980) AIR SC 1789
6 Kihoto Hollohan v. Zachillhu , (1992) SCR (1) 686
7 State of Bombay v. The United Motors (India Ltd) , (1953) AIR 252

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In the case of D.S. Nakara v. Union of India8, AIR 1983 S.C. 130 where the Act remained valid
while some portion of it was declared invalid because it was severable from the rest of the Act.
In Chintaman Rao v. State of Madhya Pradesh 9, the question related to the constitutionality of
Section 4(2) of the Central Provinces and Berar Regulation of Manufacturers of Bidis of 1948,
which provided that, " No person residing in a village specified in such order shall during the
agricultural season engage himself in the manufacture of bidis, and no manufacturer shall during
the said season employ any person for the manufacture of bidis ". This Court held that the
restrictions imposed by Section 4(2) were in excess of what was requisite for achieving the
purpose of the Act, which was to provide measures for the supply of adequate labour for
agricultural purposes in bidi manufacturing areas. The Court said Sec. 4(2) is by its very nature
inseparable, and it could not be enforced without re-writing it. This really is nothing more than a
decision on the severability of the particular provision which was impugned therein.

ON ARTICLE 19(6)
(6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so
far as it imposes, or prevent the State from making any law imposing, in the interests of the
general public, reasonable restrictions on the exercise of the right conferred by the said sub
clause, and, in particular, nothing in the said sub clause shall affect the operation of any existing
law in so far as it relates to, or prevent the State from making any law relating to,
(i) the professional or technical qualifications necessary for practising any profession or carrying
on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any
trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or
otherwise

CONSTITUTIONALITY OF THE ARGUMENTS MADE

In R.M.D.C. v. Union of India, Article 19(6) of the Indian constitution was challenged because
The Prize Competition Act, 1955 violates it.
Section 2(d) of The Prize Competition Act defines “Prize Competition” as “prize competition"
means any competition (whether called a cross- word prize competition, a missing- word prize
competition, a picture prize competition or by any other name) in which prizes are offered for the

8 D.S. Nakara v. Union of India, (1983) AIR SC 130

9 Chintaman Rao v. State of Madhya Pradesh, (1951) AIR 118

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solution of any puzzle based upon the building up, arrangement, combination or permutation, of
letters, words, or figures.”
The first contention made in this case was whether the definition stated above covers
lotteries or gambling because by merely buying lotteries they are considered as goods but the
sale of it cannot be considered trade as trade contains skills with no chance while in gambling
there is an element of chance with no skill. Therefore, a ban by any state on the state of lotteries
of other States within its territory does not violate Article 301 and 303 of the Lotteries
(Regulation) Act, 1998. It can be said that gambling is recognised and authorised by law maybe
through regulations, licenses etc. But merely because there is sanction in law for a transaction or
is legalised and not prohibited, it would not by itself make it to be commercium. Therefore, the
sale of lottery tickets which is gambling in nature cannot be given protection under Art. 19(1)(g).
Further as per the Prize Competition Act, the provisions which are impugned as unconstitutional
are Sections 4 and 5 which are
4. "No person shall promote or conduct any prize competition or competitions in which the total
value of the prize or prizes (whether in cash or otherwise) to be offered in any month exceeds
one thousand rupees; and in every prize competition, the number of entries shall not exceed two
thousand.
5. Subject to the provisions of section 4, no person shall promote any prize competition or
competitions in which the total value of the prize or prizes (whether in cash or otherwise) to be
offered in any month does not exceed one thousand rupees unless he has obtained in this behalf a
licence granted in accordance with the provisions of this Act and the rules made thereunder. "
Section 20 confers power on the State Governments to frame rules for carrying out the purpose
of the Act. In exercise of the powers conferred by this section, the Central Government has
framed rules for Part C States, and they have been, in general, adopted by all the States. Two of
these rules, namely, rules 11 and 12 are impugned by the petitioners as unconstitutional, and they
are as follows:
11. " Entry fee-(1) Where an entry fee is charged in respect of a prize competition, such fee shall
be paid in money only and not in any other manner.
(2) The maximum amount of an entry fee shall not exceed Re. 1 where the total value of the
prize or prizes to be offered is rupees one thousand but not less than rupees five hundred; and in
all other cases the maximum amount of an entry fee shall be at the following rates, namely-
12. Maintenance of Register.-Every licensee shall maintain in respect of each prize competition
for which a licence has been granted a register in Form C and shall, for the purpose of ensuring

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that not more than two thousand entries are received for scrutiny for each such competition, take
the following steps, that is to say, shall-
(a) arrange to receive all the entries only at the place of business mentioned in the license;
(b) serially number the entries according to their order of receipt;
(c) post the relevant particulars of such entries in the register in Form C as and when the entries
are received and in any case not later than the close of business on each day; and
(d) accept for scrutiny only the first two thousand. entries as they appear in the register in Form
C and ignore the remaining entries, if any, in cases where no entry fee is charged and refund the
entry fee received in respect of the entries in excess of the first two thousand to the respective
senders thereof in cases where an entry fee has been charged after deducting the, cost (if any) of
refund."
As per the sections and clauses given above Mr. Palkhiwala contended that Section 2(d) of this
Act would include not only competitions in which success depends on chance but also those in
which it would depend to a substantial degree on skill; that the conditions laid down in ss. 4 and
5 and rr. 11 and 12 stated above are wholly unworkable and would render it impossible to run the
competition, and that they seriously encroached on the fundamental right of the petitioners to
carry on business; that they could not be supported under Art. 19(6) of the Constitution as they
were unreasonable.
Mr. Seervai who appeared for the respondent, disputes the correctness of these contentions. He
argues that 'prize competition' as defined in Section 2(d) of the Act, properly construed, means
and includes only competitions in which success does not depend to any substantial degree on
skill and are essentially gambling in their character; that gambling activities are not trade or
business within the meaning of that expression in Art. 19(1)(g), and that accordingly the
petitioners are not entitled to invoke the protection of Art. 19(6); and that even if the definition
of 'prize competition' in s. 2(d) is wide enough to include competitions in which success depends
to a substantial degree on skill and ss. 4 and 5 of the Act and rr. 11 and 12 are to be struck down
in respect of such competitions as unreasonable restrictions not protected by Art. 19(6), that
would not affect the validity of the enactment as regards the competitions which are in the nature
of gambling, the Act being severable in its application to such competitions. It is argued by Mr.
Palkhiwala that the language of the enactment being clear and unambiguous, it is not open to us
to read into it a limitation which is not there, by reference to other and extraneous considerations.
Now, when a question arises as to the interpretation to be put on an enactment, what the court
has to do is to ascertain " the intent of them that make it", and that must of course be gathered

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from the words actually used in the statute. That, however, does not mean that the decision
should rest on a literal interpretation of the words used in disregard of all other materials. "
To check the constitutionality of the Act whether it is valid or not, the first and the foremost
thing to be kept in the mind is to interpret the aim, scope and object of the whole Act. What was
the law before the Act passed. To decide the true scope of the present Act, we must have regard
to all such factors as can legitimately be taken into account in ascertaining the intention of the
legislature, such as the history of the legislation and the purposes thereof. The purpose of The
Prize Competition Act, 1955 is to provide for the control and regulation of prize competitions.
So when it comes to the constitutionality of the Act, the thing that is to be considered is after
removing the provisions that are challenged i.e. Sections 4 and 5, this Act stands valid. It was
held that after removing these provisions which are invalid will not affect the valid part of the
Act.
OVERVIEW OF THE JUDGMENT
In R.M.D.C. v. Union of India case, the issue revolved around Section 2(d) of the Prize
Competition Act, 1955 whether that section provided there covers all kinds of competitions
including the gambling which the petitioners owned. In this case, the violation of Art. 19(6) was
contended by the petitioners because of some of the impugned provisions in this Act. The Apex
Court said that the question of violation of the fundamental rights would not stand valid as the
gambling is not covered under the trade and hence no violation of the fundamental right. The
Apex Court considering all aspects held that the doctrine of severability would apply here and
the provisions which are invalid would be excluded from the Act and the valid part will be
enforceable. Giving this judgment the court laid down the various rules on the doctrine of
severability that were a part of American Courts as how to judge and draw a line between the
valid and invalid parts of the statute.

RULES LAID DOWN BY THE APEX COURT ON THE QUESTION OF

SEVERABILITY

a) If the valid and invalid provisions are totally mixed up with each other and hence cannot be
separated then the whole Act would be invalid.
b) The determining factor in deciding whether the valid part of the statute can be separated from
the invalid parts or not, is the intention of the legislature only.

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c) If the valid and invalid parts of the statute are different and can be separated then the valid
part which remains can form a complete code independent of the rest, will be checked. Then
only it will be upheld.
d) Even when the provisions which are valid, are distinct and separate from those which are
invalid form part of a single scheme which is intended to be operative as a whole, then also
the invalidity of a part will result in the failure of the whole.
e) When the valid and invalid parts of the Statute are independent and do not form any part of
the Scheme but what is left after excluding the invalid part is so thin and curtailed as to be in
substance different from what it was when it emerged out of the legislature then also the
entire part will be rejected.
f) The severability of the valid and invalid provisions of the Statute does not rely on whether
the provisions are enacted in the same or different, it is not the form but the substance of the
matter that is material and that has to be ascertained on the examination of the Act as a whole
and of the settings of the relevant provisions therein.
g) If after the invalid part is obliterated from the statute, and what is left cannot be enforced
without making the modifications and alterations, then the whole Act would be declared as
void otherwise it would lead to judicial legislation.
h) To determine the legislative intent on the question of severability, it would be authorised to
consider the history of the legislation, title, preamble and the purpose of it.

SUGGESTIONS
In the doctrine of severability, it is very necessary that valid and invalid provisions of an Act
should be clearly distinguished by the respective courts. There should be proper analysis of the
provisions involved and it is very important to take into account the above rules laid down by the
court to have a clear understanding of the separability and the court should also look for the
purpose which an Act provides.

REFERENCES
● R.M.D.C. v. Union of India, (1957) AIR SC 628
● A.K Gopalan v. State of Madras, (1950) AIR SC27
● State of Bombay v. F.N Balsara, (1951) AIR SC 318
● Minerva Mills v. Union of India, (1980) AIR SC 178
● Kihoto Hollohan v. Zachillhu, (1992) SCR (1) 686
● State of Bombay v. The United Motors (India Ltd), (1953) AIR 252

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● D.S. Nakara v. Union of India, (1983) AIR SC 130
● Chintaman Rao v. State of Madhya Pradesh, (1951) AIR 118
● Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Company Ltd, (1894) AC 535

BRIEF ABOUT AUTHOR

Vanshika Sharma is pursuing BA LLB from Lloyd Law College, Greater Noida. She is a first
year student. She is currently a Junior Research and Internship Coordinator in ProBono India.
She has written many articles and research papers. She has interest in Cyber Law, Company Law
and Intellectual Property Rights. She has also worked with LexLife as Content Writer and legal
researcher. She wants to be a Corporate Lawyer.

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