JAI NARAIN VYAS UNIVERSITY

FACULTY OF LAW

JODHPUR

SESSION – 2023-24

SUBJECT – JUDICIAL PROCESS

TOPIC – PRINCIPLE OF SEVERABILITY AND

ECLIPSE

SEMESTER – LL.M 2ND SEMESTER

SUBMITTED BY – SUBMITTED TO –

DILIP KUMAR JANI DR. V.K. BAGORIA

23LLM30018 ASST. PROFESSOR

 ACKNOWLEDGMENT

I have taken lots of efforts in this assignment. However it

would not have been possible without the kind support of
………………………………... I would like to express my
sincere thanks to him.

I m highly indebted to jai Narayan vyas university for this

guidance and constant supervision as well as for providing
necessary information regarding this assignment.

I would like to express my gratitude towards my family and

friends for their kind cooperation and encouragement which
helped me in completing my assingnment.

My thanks also goes to those people who directly or indirectly

helped me in completing my project report.

DILIP KUMAR JAN

SR NO. CONTENT
1 CHAPTER 1

1.1 INTRODUCTION

1.2 MEANING

1.3 RULES REGARDING DOCTRINE

1.4 EFFECT OF PROCLAMATION OF EMERGENCY

1.5 THE BURDEN OF PROOF IN DOCTRINE

1.6 EFFECT OF LA DECLARED UNCONSTITUTIONAL

1.7 CASES

2 CHAPTER 2

2.1 INTRODUCTION/MEANING

2.2 ORIGIN OF DOCTRINE

2.3 APPLICATION OF DOCTRINE

2.4 POST CONSTITUTIONAL LAW

2.5 DOCTRINE OF ECLIPSE AND CONSTITUTION

2.6 SALIENT FEATURES OF DOCTRINE

2.7 DOCTRINE OF ECLIPSE AND ARTICLE 368/ARTICLE309

2.8 CASES

2.9 CONCLUSION

CHAPTER 1

INTRODUCTION
Severability is a legal principle. It deals with situations where a court finds a part of a law or
contract invalid. The rest of the law or contract can still be enforced. It's also called the
separability doctrine or the doctrine of partial invalidity. The principle aims to keep the valid
and constitutional parts of a law or contract. It does this even if some provisions are defective
or unlawful.

Severability means that not all laws or contracts are one whole thing. If one part is bad, it
doesn't mean the whole thing is bad. Courts can keep the valid parts and ignore the invalid
ones. This keeps the legal effect of the valid parts. Invalid parts become unenforceable.

Severability helps judges save time. It also keeps the original intent of laws or contracts
intact. This prevents unnecessary problems and makes sure things are fair. Courts can remove
certain parts of a law or contract without removing the whole thing. This helps avoid
unnecessary harm or unintended consequences.

MEANING

Severability Meaning

In law, the term separation is used under the provision of a contract or piece of legislation.
Severability means to separate something illegal from a legal thing so that the legal thing
remains in force.

Let us understand the principle of separation with an example. Suppose you have a basket full
of apples to sell, in which 5 apples are bad and the rest are good. So now, according to the
doctrine of severability, you will remove these 5 bad apples from the basket and the rest of
the apples are good and ready to sell.

1 DOCTRINE OF SEVERABILITY

The use of severability depends upon the jurisdiction and legal situations. It is applied as per
the different legal scenarios. Courts consider the original purpose of the law or contract. They
look at how the invalid parts relate to each other. They check if there's a clause that allows for
removal. The effects of keeping or removing the parts are taken into account. Courts use this
doctrine to balance the rule of law. It is also used to respect legislative or contractual
autonomy. They also fix any defects or violations.
In India, the doctrine of severability is used like in other countries. It is used with some
differences based on Indian laws and court decisions. In India, the doctrine of severability lets
courts separate valid and invalid parts of a law or contract. This means that valid parts can
still be enforced even if invalid parts are discarded.

In India, the doctrine of severability is based on Article 13 of the Indian Constitution. This
article says that any law that goes against fundamental rights is void to the extent of that
disparity. Courts use the doctrine of severability to decide:

If other provisions are still valid.

If a law or contract violates fundamental rights or is unconstitutional.

The laws of India and the constitution may affect severability use. Each country's laws, rules,
and court rulings change the doctrine. Courts differ in what they determine. How much
severability do they allow? And how much discretion they give judges to determine.

The Supreme Court of India says that if a law or contract can still make sense without a part,
that part can be removed and the rest can still be valid. The court examines why the rule was
created and what it accomplishes. They check if they can remove it without affecting the
other parts.

India's legal system and constitution can result in the use of severability to vary from other
countries. Each country's laws modify the doctrine's use in court. Different courts interpret
severability differently. Judges also have different levels of power in deciding on severability.

Different countries have a common principle for the doctrine of severability. But, its
application and nuances can differ based on their legal systems and traditions. Different
countries apply the doctrine of severability differently. Here are some key differences:

In countries like the US and UK, which have common law systems, the idea of severability is
mostly based on past court decisions. Courts look at what the legislature or parties meant and
how removing the invalid part affects the whole law or contract.

In countries like France and Germany, which have civil law systems, they have laws that
codify the doctrine of severability. Some places have rules about when and how things can be
separated. Courts use these laws to decide how much of a flawed provision can be removed.
The US has a constitution that is the most important law. Other countries have written
constitutions too. Courts decide if parts of a law can be removed without changing its
meaning or purpose using the doctrine of severability. Thus, there arises a need to consider
the Constitution.

In some countries, the way severability is applied may be different. It depends upon their
constitutional system. Severability principles come from constitutional principles, laws, or
court interpretations in each country.

Judicial discretion means that judges have the power to make decisions based on their own
judgment.

Judges have different levels of discretion when applying the severability doctrine. In some
places, there are clear rules to decide if something can be separated from the rest of a law.
This limits the judge's power to make a decision. Some places let courts have more flexibility
in deciding how much of a law can be removed based on the situation.

The amount of importance given to legislative intent can differ. Some countries try to keep
the law or contract in line with what the lawmakers envisioned. They focus on preserving the
important parts of it. Some countries have difficult severability regulations to safeguard
individual rights and the constitution.

Rules Regarding Doctrine of Severability

In India, constitutional, legislative, and judicial interpretations determine the theory of

severability. The following are some general rules considered:

Constitutional Validity: In India, severability is examined based on constitutional

legitimacy. If a law provision is found to violate the Indian Constitution, the court determines
whether the other laws can operate without it.

Intent of the Legislature: The lawmakers' intention is important. Courts look at why the law
was made to see if they can keep the parts that work.

Pith and Substance Doctrine: When deciding if a law can be separated into parts, courts use
the "pith and substance" doctrine. This means they figure out the law's true nature and
essence. If the valid parts of a contract are different from the invalid parts, they can be
separated more easily.
Interpretation of Statutes: Courts use interpretation to decide whether provisions can be
separated. The Language, context, and legislative history can be used to determine. Whether
the clauses are connected or they may be separated.

Severability Clause: When a law has a severability clause, courts look at what it says and
what it means. These clauses can guide what happens if something is found to be invalid and
whether certain provisions can be separated from the rest.

Fundamental Rights Protection: Courts concentrate on safeguarding basic rights in

invalidity cases. The seriousness of the offense and its impact on constitutional rights
determine severability.

To find out whether the valid provision of a statute can be separated from the invalid part, the
intention of the makers of that statute is the determining factor.

If the valid and non-valid provisions of a statute cannot be separated from each other, in that
case, the entire statute will become invalid.

After the removal of a non-valid provision, if the valid provision stands independently, then it
will be upheld by the court. Otherwise, it will become unenforceable.

In a condition where both valid and invalid provisions of a statute were intended to be a part
of the same scheme, the whole scheme will be invalidated. It will not matter whether the
valid and invalid provisions were separable or not.

There may be cases where valid and invalid provisions of a statute are separable from each
other and they are not part of the same scheme. But still, the renewal of the invalid provision
leaves the rest scheme truncated, then also the scheme will be invalidated.

The doctrine of severability can be done by reading the whole institute, with no specific
provision for part of the statute.

The best way to find the intention of the legislation is to add the provision in the statute, it
will be legitimate to find it from the history, objective and preamble of that statute.

Effects of the proclamation of emergency on a statute that is declared

unconstitutional
 Article 352 of the constitution of India deals with the proclamation of emergency. The Indian
constitution makes the legislature free from the limitation at the time of emergency. But it
does not operate to validate a law that is declared unconstitutional.

The Burden Of Proof In The Doctrine Of Severability

The person who alleged that a statute is contravening or contrary, the burden of proof lies to
that person. The person can challenge a statute or law only if our rights are directly affected
by that statute or law.

Effects Of A Law That Is Declared Unconstitutional

According to article 141 of the Indian constitution, the supreme court of India binds all the
courts in the territory of India. It means if any law or statute is declared unconstitutional by
the supreme court of India then that law or statute shall be considered unconstitutional by all
the law courts in India.

The same rule is applied when the supreme court of India declares a provision of the statute
unconstitutional with the help of the doctrine of severability. After this declaration, the court
will read the statute in such a manner that the part which is declared invalid never existed
before.

Doctrine of Severability – Cases

Case Year Summary

Association of Unified 2012
Telecom Service Providers of
India v. Union of India
o The Supreme Court of India applied the doctrine of severability
in this case related to telecom licenses.
o Certain provisions of the telecom license agreements were held
unconstitutional and arbitrary by the court.
o The provisions not affected by the invalidity could be severed.
o These provisions remained enforceable.
o The case emphasized the principle of preserving valid
contractual obligations.
o The case also emphasized striking down invalid provisions.
Navtej Singh Johar v. Union of 2018
India
Shayara Bano v. Union of India 2017
CHAPTER 2
DOCTRINE OF ECLIPSE
o The Supreme Court decriminalized consensual same-sex
relations in this case. It declared certain provisions of Section
377 of the Indian Penal Code unconstitutional.
o The court held that the remaining provisions of Section 377
could be upheld.
o These provisions did not violate fundamental rights.
o The case applied the doctrine of severability.
o The context was decriminalization and protection of individual
rights.
o Supreme Court declared instant triple talaq (divorce) among
Muslims unconstitutional and void.
o The court held that the provision allowing instant triple talaq
was arbitrary.
o The provision violated the fundamental rights of Muslim
women.
o The court held that some provisions of Muslim personal law
were invalid.
o The remaining provisions of Muslim personal law were not
affected by the invalidity.
o The court allowed the remaining provisions to be severed.
o The remaining provisions of Muslim personal law remained
enforceable. This case showcased the application of
severability in family and personal laws.
The Doctrine of Eclipse is a principle that upholds the concept of fundamental rights being
prospective. It deals with article 13 of the Constitution of India. If any law made by the
legislature is inconsistent with Part III of the Constitution, then such law is deemed invalid
and inoperative. It is because it is overshadowed by Fundamental Rights and is said to cast
the Eclipse on it. Only when the corresponding fundamental right has been amended the
inconsistency of the eclipsed law can be removed. When the Eclipse gets removed, the law
becomes automatically valid and operative.

Origin and evolution of the doctrine of eclipse

After the passing of the Indian Constitution, numerous existing laws could be challenged for
being in contravention with fundamental rights and could be challenged in courts. Likewise,
judicial review has played a huge part in establishing the doctrine of eclipse. While Bhikaji
Narain Dhakras and Ors v. State of Madhya Pradesh (1955) was the case where this legal
doctrine was formally pronounced by the Supreme Court judges, the doctrine was used in
principle in certain other previous cases.

The first case where traces of the origin of this doctrine can be found is Keshava Madavan
Menon v State of Bombay (1951). In this case, the appellant had a case against himself
under Indian Press (Emergency Powers) Act, 1931 with regards to a pamphlet published in
1949. The appellant contended that such a case could not be constituted against him because
that pamphlet aligned with the right to freedom of speech and expression are given in Article
19(1)(a). The Court opined that because at the time when the pamphlet was published,
fundamental rights of the Indian Constitution did not exist. Thus, the appellant could not
claim to have them. This case thus established that fundamental rights did not have
retrospective but only prospective application. In the case of Article 13(1), the Court held that
it was prospective and not retrospective, especially since any statute is prospective, unless
specifically stated otherwise. Because the language of this article does not imply any kind of
retrospective application, the same could not be assumed. This opinion was reiterated in the
case of Pannala Binaraj v. Union of India (1957).

The next important case, which spoke about the nexus between Article 13(1) and the
validation of pre-Constitutional laws infringing on fundamental rights was Behram
Khurshid Pesikaka v. State of Bombay (1955). Here, the appellant was accused under
Section 66(b) of the Bombay Prohibition Act, 1949. This section spoke about driving under
the influence of alcohol. The appellant used the case of State of Bombay and Anr v. F.N.
Balsara (1951) where Section 13(b) of the Act was declared to be void to the extent of its
application to the use of alcoholic medicinal and toilet preparations because the same was
violative of fundamental rights in Article 19. By extrapolation, the appellant contended that
Section 66(b) should also be considered void insofar as alcoholic medicinal and toilet
preparations were concerned.

The Supreme Court judges initially held that the Balsara case did not repeal or amend the
section. But in reference to a larger constitutional bench, the majority opinion held that the
section was “notionally obliterated” from the statute for the determination of rights and
obligations of the citizens. It was further held that the ruling in Balsara was a good defence to
a charge under Section 66(b) in relation to alcoholic medicinal and toilet preparations. It was
for the prosecution to prove that the accused was driving under the influence of any
prohibited alcohol other than alcoholic medicinal preparations and for the accused to prove
otherwise.

Application of the doctrine of eclipse to the Indian Penal Code

In the case of P. Rathiram v. Union of India (1994), the constitutional validity of Section
309 of the Indian Penal Code, which punishes attempts to commit suicide, was questioned. It
was ruled that Section 309 was violative of Article 19 which along with the right to freedom
of speech also gives the right to not speak. Further, it was said that the section was violative
of Article 21 which by extrapolation also gave the right to not live.

This was held to be an invalid finding in Gian Kaur v. State of Punjab (1996). Thus, in
essence, the Rathiram case had eclipsed Section 309 with fundamental rights which got
removed by the Gian judgement.

Application of the doctrine of eclipse to post-Constitutional laws

While Article 13(1) applies to pre-Constitutional laws, Article 13(2) applies to post-
constitutional laws. An important distinction between these two clauses was drawn up in
Deep Chand v. State of Uttar Pradesh (1959). Here, it was said that while a pre-constitutional
continues to exist except to the extent of inconsistencies with rights given by Part III of the
Indian Constitution, no post-constitutional laws in contravention of Part III can be made and
the same if made is void ab initio. Thus, from the plain reading of Article 13, the doctrine of
eclipse cannot apply to post-Constitutional laws. In Sagir Ahmed v. State of Uttar Pradesh
(1954), it was held by the Supreme Court that any law enacted after the commencement of
the Indian Constitution and not protected by Clause 6 while being in violation of Article
19(1)(g) could not be made valid.

Another important case in this regard is Mahendra Lai Jaini v State of Uttar Pradesh
(1963). In this case, it was authoritatively established that the doctrine of eclipse did not
apply to post-Constitutional laws and the latter could not be automatically revived by
Constitutional amendments. Thus, the impugned act would become void ab initio if its
contravention of any fundamental right as is given in Article 13(2). To give effect to that
statute, the Constitution will have to be amended and the former would have to be re-enacted.
This principle was reiterated in K.K. Poonacha v. State of Karnataka (2010). The main
question, in this case, was whether any act is liable to be declared void on the ground that the
same was not reserved for the consideration of the President and did not receive his assent as
per the requirement of Article 31(3) of the Constitution. It was held that an act did not
become nullified just because it did not receive assent. It remained eclipsed until the
irregularity had been removed. In the present scenario, Article 31 was repealed and thus, the
act became revived again.

This doctrine has also been used in other circumstances. For example, in the case of K.P.
Manu, Malabar Cements Ltd v. Chairman, Scrutiny Commt (2015), the Court held that
when a person is converted to Christianity or some other religion the original caste remains
under eclipse and as soon as during his/her lifetime the person is reconverted to the original
religion the eclipse disappears and the caste automatically revives. Further, in the case of
UOI & Ors. v. Duli Chand (2010), the court held that a penalty order upon being stayed
would remain eclipsed and not dead. When the same stay is vacated, from that moment, the
penalty would revive on its account.

The doctrine of eclipse and the Indian Constitution

This doctrine is related to Article 13 of the Indian Constitution which talks about laws
inconsistent with or in derogation of fundamental rights. Article 13(1) states that any existing
law in force before the start of the Constitution within the territory of India which goes
against or is inconsistent with fundamental rights, present in Part III of the Indian
Constitution, becomes void to the extent of such inconsistency. Further, Article 13(2) states
that any new law becomes void the moment it comes into violation of fundamental rights, to
the extent of such violation. These provisions are directly in consonance with the doctrine of
severability. This doctrine states any provision of a statute which is against the Constitution
will be severed from that act and will be considered void to that extent only. Thus, the courts
can declare that provision, instead of the entire act, void. However, Article 13(4) states that
Article 13 does not apply to constitutional amendments. This implies that if any constitutional
amendment law gets passed that takes away certain fundamental rights or is in violation of
them, those laws, although inconsistent with the rights, is not void.

Salient Features of the Doctrine of Eclipse

Applicability to Pre Constitutional Laws – The Doctrine applies to laws that have become
operational with the adoption of the Indian Constitution on 26th January 1950.

Non Applicability to Post Constitutional Laws – The Doctrine does not apply to post-
constitutional. This is because they are invalid at their inception and, thus, cannot be
validated by any subsequent amendment.

Conflict with the fundamental rights – If a law violates a fundamental right, it can only be
overshadowed and termed inoperative.

Inoperative- The Doctrine does not nullify a law but only makes it defective and
unenforceable.

Fundamental Right and Amendment – An amendment to the Fundamental concerning

right makes the law operative automatically.

Doctrine of Eclipse and Article 368

The Punjab Security and Land Tenures Act of 1953 was challenged in I. C. Golaknath v.
State of Punjab on the grounds of violating the fundamental right to hold and acquire
property and practice any profession. The Golaknath case debated the validity and
absoluteness of Article 368. The Parliament Legislature was given restrictive amending
powers under Article 368 with no authority to amend the fundamental rights. Thus, Article
368 was eclipsed. The judgment was overruled in the legendary case of Kesavananda Bharati
v. Union of India. It provided the Parliament powers to amend the fundamental rights of the
Indian Constitution, which removed the Eclipse from Article 368

Doctrine of Eclipse and Section 309

The Doctrine extended its provisions under the Indian Penal Code in the cases of Rathinam
and Gian Kaur. Section 309 of the IPC, which criminalizes attempts to suicide, was
challenged in the case of Rathinam v. Union of India. Section 309 was deemed
unconstitutional as the Court observed that Article 21 holds the right to live, which also
induces the right not to live. A constitutional bench reversed the judgment of the Rathinam
case and upheld the validity of Section 309 in the case of Gian Kaur v. the State of Punjab.
Thus, removing the Eclipse on Section 309 to make it operational again.

Court Cases Associated with Doctrine of Eclipse

Keshava Madavan Menon v State of Bombay (1951)

This was the first case that showed the Doctrine of Eclipse. In this case, the petitioner was
facing a lawsuit under the Indian Press (Emergency Powers) Act, 1931, involving a pamphlet
that was published in 1949. The appellant argued that since the booklet was in line with the
right to freedom of speech and expression stated in Article 19(1)(a), no such action could be
brought against him because the Indian Constitution's fundamental rights did not exist at the
time the pamphlet was produced.

Hence, the appellant could not claim possession of them. Therefore, this decision highlighted
that fundamental rights only have prospective, not retrospective, applications.

Behram Khurshid Pesikaka v. State of Bombay (1955)

The Bombay Prohibition Act, 1949's Section 66(b), was used to accuse the appellant. The
subject of drink and driving was covered in this section. The appellant cited the 1951 case of
the State of Bombay and Anr v. F.N. Balsara, in which it was determined that Section 13(b)
of the Act was invalid far as it applied to the use of alcoholic medicinal and toilet
preparations because it violated Article 19's fundamental rights. By extrapolation, the
appellant argued that Section 66(b) should be rejected in relation to alcoholic medicines and
toilet preparations.

Conclusion

The doctrine of severability works as a filter that removes the impurities of a statute. There
were many cases and debates done on the question of if the amendment Act is subject to
judicial review or not. But in the end, this question has been settled and the amendment Act
can be subjected to judicial review if it is impairing the basic structure of the constitution of
India.

The Doctrine of Eclipse is one of the fairly subtle principles of the rule of law that has helped
the pre-constitutional laws from being wiped out altogether. It is imperative to mention here
that the applicability of this doctrine to post-constitutional laws is still somewhat of a grey
area. However, this doctrine has been effective in harmonizing the pre-constitutional and
post-constitutional positions with respect to various laws, such harmonization has ensured the
triumph of constitutionalism in every sense of the word.