Doctrine of Severability in the Indian Constitution: Article 13

Doctrine of Severability in the Indian Constitution

Doctrine of severability

When a part or provision of an act is found to be inconsistent with the Constitution (i.e., unconstitutional), a crucial question arises: should the entire act be declared void, or only the specific portion that conflicts with the Constitution? To address such situations, the Supreme Court of India developed the Principle of Severability.

According to this principle, if the unconstitutional part of an act can be separated from its remaining provisions without defeating the legislature’s original intent or purpose, then only that specific part which infringes upon fundamental rights will be declared illegal, and not the entire act. This judicial tool is known as the Doctrine of Severability.

To understand the doctrine of separation, it is essential to comprehend clauses (1) and (2) of Article 13 of the Constitution of India, as the principle is outlined in these sections.

Original text of Article 13 clause (1) and (2)

Clause (1) of Article 13: All laws in force in the territory of India immediately before the  commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

Clause (2) of Article 13: 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 the contravention, be void.

The phrases “to the extent of such inconsistency” used in clause (1) of Article 13 of the Constitution and “to the extent of contravention” used in clause (2) make it clear the intention of the legislature that only those parts of the pre-constitutional law or post-constitutional law which are inconsistent with or contravene the fundamental rights should be declared illegal and it is not necessary to  invalidate the entire statute.

Also read: What is the doctrine of territorial nexus?

Illustration or Judgments of the doctrine of severability

A.K. Gopalan vs State of Madras AIR 1950 SC 27

In this case, the validity of Section 14 of the Preventive Detention Act 1950 was challenged in the Supreme Court, by which the power of the court to examine the validity of the arrest of a person was taken away. Then the Supreme Court declared Section 14 unconstitutional and said that by separating this section, there will be no change in its nature, structure or object. This means that by declaring Section 14 illegal, the validity of the remaining part of the Act will not be affected.

Similarly, Bombay State vs Balsara AIR 1951 SC 318

In the present case, the Supreme Court declared only some provisions of the Bombay Prohibition Act, 1949 between the Bombay Province as unconstitutional and the rest of the Act was valid.

Kihoto Hollohan vs. Zachillhu (1993)

In this case, Paragraph 7 of the Tenth Schedule (part of the Anti-Defection Law) was declared unconstitutional. However, the Supreme Court carefully ruled that removing Paragraph 7 did not affect the validity of the rest of the Anti-Defection Act. The remaining provisions, dealing with disqualification due to defection, remained valid and enforceable. This case serves as a good example of how the Doctrine of Severability successfully preserved a larger law despite one part being unconstitutional.

Exceptions

An exception to this is that if the valid part is so integrally connected with the invalid part that by removing the invalid part, the purpose of the Act itself will fail or the remaining part will have no independent existence, then the court can declare the entire Act unconstitutional.

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Romesh Thapar vs State of Madras AIR 1950 SC 124

In this case, the Supreme Court held that “Where the intention of the law is to give authority to impose restrictions on the fundamental rights and it is in such a broad language that it comes under both types of restrictions within and outside the limits prescribed by the Constitution and where it is not possible to separate the two, the entire Act will be declared illegal. Unless the possibility of its application for such purposes which are not approved by the Constitution is removed, it is necessary to declare that law completely unconstitutional and void.”

Conclusion

The doctrine of severability is a fundamental principle in Indian constitutional law, playing a crucial role in judicial review. Enshrined in Article 13 of the Constitution, it empowers courts to invalidate only those parts of a law that violate fundamental rights, while preserving the remaining valid provisions. This selective approach ensures that legislative intent is upheld without completely repealing laws.

While the doctrine promotes judicial precision, it is not absolute – if an unconstitutional provision is inseparable from the rest of the law, the entire statute can be struck down. Ultimately, the doctrine of severability reflects a balanced constitutional framework, which ensures judicial scrutiny, legal continuity, and stability while maintaining the supremacy of the Constitution.

Questions based on the article:

What is the doctrine of severability? Explain with judgment.