ASSIGNMENT - INTERPRETATION OF STATUTES

SUBJECT CODE- LLB 406

DOCTRINE OF SEVERABILITY

DEPARTMENT OF LAW
TRINITY INSTITUTE OF PROFESSIONAL STUDIES

SUBMITTED TO: SUBMITTED BY:

Ms. Bhoomika Verma Tushar Yadav
Assistant Professor, TIPS BALLB 2020-25
Semester- 8
E.No. 04820603820
 INTRODUCTION
This doctrine of severability is also known as the doctrine of separability. The word “to the
extent of the inconsistency or contravention” makes it clear that when some of the provision of a
statue when some of provisions of a statute become unconstitutional on account of inconsistency
with fundamental rights, only to the repugnant provision of the law in question shall be treated
by the courts as void, and not the whole statute.
The doctrine of severability means that when some particular provision of a statute offends or is
against a constitutional limitation, but 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.
The doctrine of severability says that if good and bad provisions are joined together by using the
word ‘and’ or ‘or’ and the enforcement of good provision is not made dependent on the
enforcement of the bad one that is the good provision can be enforced even if the bad one cannot
or had not existed, the two provisions are severable and the good one will be upheld as valid and
given effect to. On the other hand, if there is one provision which is capable of being used for a
legal purpose as well as for illegal one, it is invalid and cannot be allowed to be used even for the
legal purpose.
In this doctrine, it is not the whole act which is held invalid for being inconsistent with the Part
three of the constitution which is given to the citizens of India. It is only those parts that are
inconsistent and are violative of the fundamental rights. But just the part which violates the
fundamental rights is separable from that which does not isolate them. If it is there that the valid
portion is combined with the invalid portion that it is impossible to separate them. Then in such
cases, the court will leave it and declare the whole Act as void. This process of doing it is known
as the doctrine of severability.
The honourable Supreme Court of India has used this doctrine in the case of A.K Gopalan vs
State of Madras it was held by the court that the preventive detention should be removed from
section 14 then it would be valid and by removing this will not affect the act and it will remain
valid and effective. The doctrine was further was also applied in D.S Nakara vs Union of India
where 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. Also, State of Bombay
vs F.N Balsara here it was held that the provision of the Bombay Prohibition Act, 1949 where
the entire act was declared as void and it did not affect the rest of the part and there was no need
to declare the whole statute as void.
The doctrine of severability was even used in the case of Minerva Mills vs Union of India where
section 4 of 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 Vs Zachillhu 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.
The doctrine of severability was considered by the Supreme Court of India in the case of
R.M.D.C vs Union of India and the rules regarding severability was laid down in this case-

The intention of the legislature behind this is the determine whether the invalid portion of the
statute can be severed from the valid part or not.
And if both the valid and invalid parts can’t be separated from each other then the invalidity of
the portion of the statute will result in the invalidity of the whole act.
Even if the invalid portion is separate from the valid portion.
It is the power and duty of the courts to declare a law which is inconsistent with the constitution
of India to be unconstitutional. The foundation of this power of judicial review as it was
explained by a nine-judge bench is the theory that the constitution which is the fundamental law
of the land, is the will of the people, while the statute is only the creation of the elected
representatives of the people, when therefore the will of the legislature as declared in a statute,
stands in opposition to that of the people as declared in the Constitution, the will of the people
must prevail.

Constitutional justification of the doctrine of severability

The application of the doctrine of severability for saving the valid parts of partly invalid
provisions is justified by the use of the expression ‘to the extent of’ in Article 13 of the
Constitution. Article 13 expressly states that a law in contravention of the provisions of the
Constitution shall be invalid only to the extent of the inconsistency. Thus, the part of the law that
is consistent with the constitutional provisions should be saved by the application of the doctrine
of severability. It is necessary that the valid part be severable in application or severable in
enforcement from the invalid part.
Similarly, Articles 251 and 254 also provide that when there is a conflict between the state law
and the union law relating to a matter enumerated in the concurrent list, the union law would
prevail and the state law would be rendered inoperative only ‘to the extent of’ the repugnancy.
Thus, it is evident that the makers of the Constitution themselves envisaged the application of the
doctrine of severability.

General principles of the doctrine of severability

As per the general rule, where a rule contains a valid and an invalid part and the valid part is
severable from the invalid part, the invalid part should be omitted and the valid part should be
retained. If the invalid part can also be saved by reducing its scope, then it should be retained and
read down to reduce its scope.
Where the provision under consideration is in the nature of an exception to the general scheme of
the statute, the mere invalidity of the general provision will not imply the invalidity of the entire
statute. The general scheme would be void only if it is established that the exception is inherently
and intimately linked with the general provisions.

It is not necessary for the court to even strike down a complete provision. Where the
objectionable and valid parts are contained in the same section and the two parts are distinct and
severable from each other, then the court may invalidate only the objectionable part.
The doctrine of severability can be applied to the decisions of the courts as well as quasi judicial
bodies.
There are two primary factors that the courts consider while determining whether the doctrine of
severability should be applied or not. The first factor is the legislative intent. If the courts find
that the legislative intent behind the enactment of the concerned statute favours severance, then
the courts will apply the doctrine. The second factor is public interest. The courts apply the
doctrine of severance only if it is evident that the application of this doctrine would serve the
public interest.
The doctrine of severability can be applied to invalidate the unconstitutional portion of a
provision that is not related to the overall object of the statute. Thus, the unconstitutional portion
can be separate and severed from an otherwise constitutional provision. This process of omitting
an unconstitutional portion does not amount to judicial legislation.

Landmark Cases on Doctrine of Severability

R. M. D. Chamarbaugwalla v. Union of India (1957)
In the case R. M. D. Chamarbaugwalla v. Union of India (1957), the Supreme Court laid down
the guidelines relating to the application of the doctrine of severability. In this case, the
constitutionality of the Prize Competition Act, 1955, was challenged, which imposed a
prohibition on games of chance as well as games of skill. Applying the rule of severability, the
Court held that the part restricting the games of skill was ultra vires, while the remaining statute
was saved. The Apex Court enumerated the following:
The intention of determination is of paramount importance while deciding whether the doctrine
of severability should be applied to a particular legislation or not. In determining the intention of
the legislature, the court should refer to the history of the Act, the internal and external aids to
interpretation, and the mischief that the legislation intends to address.
The court should consider the question as to whether the legislature would have enacted the valid
portion if it knew that the invalid portion was ultra vires.
If the court finds the answer to the aforementioned question to be positive, then the court can
apply the doctrine of severability.
This doctrine can be applied only in those cases where the valid and invalid parts can be severed.
This doctrine cannot be applied where the valid and objectionable portions are inextricably
linked in such a manner that they cannot be severed. In such cases, the entire statute will have to
be struck down on the grounds of being ultra vires or unconstitutional.

Similarly, the entire statute will have to be struck down if the effect of severance is such that the
valid residue part becomes substantially different from what the legislature intended it to be.

Chintaman Rao v. State of Madhya Pradesh (1950)

Facts

In Chintaman Rao v. State of Madhya Pradesh (1950), the government enacted a law to prohibit
agricultural labourers from being engaged in the manufacture of beedis. The purpose of the law
was to facilitate greater production of food crops and to ensure that adequate labour was
available for agricultural purposes. The law authorised the Deputy Commissioner to prohibit the
agricultural labourers of a particular notified region from being engaged in bidi manufacture
during the agricultural season.
Issue
The Deputy Commissioner issued an order prohibiting all persons residing in the notified
villages from undertaking work in bidi manufacturing. The order was challenged on the ground
of being violative of the fundamental right to carry on any trade or occupation contained in
Article 19(1)(g) of the Constitution.
Decision of the Court
The Supreme Court found the law to be violative of the fundamental rights of the people in the
villages. The Court observed that the order of the Commissioner prevented not only the
agricultural labourers but also the old, infirm, women, and other persons from working in the
beedi manufacturing activities. Thus, those who could not be employed in agricultural activities
were also restricted from undertaking beedi manufacturing work.
The Court observed that the portion of the law that imposed restrictions on agricultural labourers
could not be separated from the portion imposing restrictions on other persons. The language
used in the Act was wide enough to cover both constitutionally permissible and impermissible
restrictions. Thus, the doctrine of severability could not be applied to the case.

Expanding the scope of the Act

The doctrine of severability can also be instrumental in expanding the scope of the provision.
There is no such principle that the operation of the doctrine of severability should always result
in limiting the scope of the concerned statute. This doctrine may also be applied to expanding the
width and scope of a statute.
The doctrine of severability may also be applied for the purpose of omitting the discriminatory
portion of a statute while retaining the beneficial part.

D.S. Nakara v. Union of India (1982)

Facts
In D.S. Nakara v. Union of India (1982), the government had initiated a new non-contributory
pension scheme. However, the scheme was made applicable from a particular date, and the
benefits were available only to the persons who retired after the stipulated date. The persons who
retired before the prescribed date were not entitled to the benefit of the scheme.

Arguments
The petitioners contended that the discriminatory portion should be read down by applying the
doctrine of severability. However, the Attorney General pleaded that the legislature has the
competence to determine the scope of the beneficial legislation. The judiciary would be
transgressing into the legislative field by applying the doctrine of severability to expand the
scope of the scheme. Lastly, the Attorney General submitted that the doctrine of severability
should always cut the scope of the scheme and not enlarge it.
Judgment
The Supreme Court held that the classification on the basis of the date of retirement was arbitrary
and violative of Article 14 of the Constitution. Thus, the Court applied the doctrine of
severability and read down the provision making the classification on the basis of retirement
date. The scope of the Act was thus enlarged, and the people who retired before the prescribed
date were also brought within the purview of the Act.
The Court observed that the reading down of the objectionable portion would not make the
overall scheme vague or unenforceable, and thus, there was no difficulty in severing the illegal
and arbitrary portion.
Article 14 of the Constitution targets arbitrariness, and if an arbitrary portion of a statute can be
omitted by the application of the doctrine of severability, then the same should be struck down
while retaining the overall scheme.

Whether one could challenge the constitutionality of a law

One can challenge the constitutionality of law but only if our rights are directly affected by a
law. Then only we can question the constitutionality of the law. It follows in such ways-
When a person is outside the class that might be injured by the statute then he has no right to
complain. Then where a statute affects bona vacantia, then there is no person who is competent
to challenge the validity of such statute. Again, where the statute operates as a contract, either
party to the contract is entitled to challenge the validity of the statute.

Criticism to the doctrine of severability

While the doctrine of severability has been an integral part of Indian as well as other legal
systems, there are certain grounds on which this doctrine can be criticised. These grounds are:
 • The doctrine of severability requires the courts to determine the legislative intent. The
courts have to answer the question as to whether the legislature would have passed the
concerned statute had it known that some parts of the statute were constitutionally
invalid.

However, no legislature passed a statute with the idea that some part of it may be constitutionally
objectionable. Thus, the courts have the dubious function of determining the intent that never
existed. There is no evidence as to the actual intent of the legislature, and the hypothetical intent
is based merely on the views of the courts.
• The doctrine of severability gives the courts the power to excise or expand the scope of a
particular statute. This may amount to a transgression into the legislative field.
• The doctrine of severability also expands the scope of a particular suit or petition. The
petitioner might have challenged a particular provision of a statute, but if the court
determines that the provision is unconstitutional, then the validity of the entire statute comes
under scrutiny. Once the court finds that the provision challenged by the petitioner is ultra
vires, it goes on to examine whether the remaining provisions are valid and whether they can
be severed from the objectionable provisions.

The exercise of this power becomes unjustified when the petitioner has no locus standi to
challenge the constitutionality of the entire statute, but due to the operation of the doctrine of
severability, the entire law comes under the scrutiny of the court. As per the general principle, a
plaintiff has to establish the locus standi for every provision that he challenges. However, there is
a visible departure from the general principle in the case of the application of the doctrine of
severability.

Conclusion
The doctrine of severability is an important legal principle used to address the constitutionality of
statutes when some provisions are found to be inconsistent with the Fundamental Rights
guaranteed by the Constitution. When a specific provision of a statute violates fundamental
rights, the court can declare only that particular provision void, leaving the rest of the statute
intact and enforceable. The court’s intention is to separate the valid parts from the invalid ones to
preserve the constitutionally sound aspects of the law.
However, suppose the invalid provision is so intertwined with the rest of the statute that they
cannot be separated without rendering the entire law inoperable. In that case, the court may strike
down the entire statute. The burden of proof lies with the party challenging the law’s
constitutionality, and they must demonstrate that their fundamental rights have been violated.
Over the years, several landmark cases and constitutional amendments have shaped the
understanding of the doctrine of severability in India. While the Constitution explicitly excludes
certain laws from Article 13’s purview, amendments and judicial decisions have clarified that
even constitutional amendments are not immune from judicial review, especially if they damage
the basic structure of the Constitution.
 References
https://lawbhoomi.com/doctrine-of-severability/
https://blog.ipleaders.in/doctrine-of-severability/#Practice_of_doctrine_of_severability
https://testbook.com/ias-preparation/doctrine-of-severability
https://byjus.com/free-ias-prep/doctrine-of-
severability/#:~:text=The%20doctrine%20of%20severability%20means,and%20not%20the%20e
ntire%20statute.