Doctrine of Severability | Constitution of India

The Doctrine of Severability

The Doctrine of Severability means that when some particular provision of a statute is violative of fundamental rights, but that provision is severable from the rest of the statute, only that provision will be declared void by the Court and not the entire statute. The doctrine of severability is also called doctrine of separability.

Article 13 of Constitution of India states:

All laws enforce in India, before the commencement of Constitution of India, in so far as they are inconsistent with the provisions of fundamental rights shall to the extent of that inconsistency be void.

When a particular part of a statute try to curb the fundamental rights of the Constitution of India, the very part of the statute/Act would be declared void provided that, the unconstitutional part of the statute/law is separable. But, if the unconstitutional part of the statute is inseparable, then the entire statue would be held void. Hence, severability finds its significant place while invalidating an unconstitutional portion of a statute.

Landmark Judgments

R.M.D.C. Vs. Union of India, the Supreme Court observed that:

If a part of a statute turns out to be void, that should not affect the validity of the rest of it. It is the true nature of the subject-matter of the legislation that is the determining factor, and while a classification made in the statute might go far to support a conclusion in favour of severability, the absence of it does not necessarily preclude it.

In A.K. Gopalan Vs. State of Madras, the Petitioner- a communist leader was detained under the Preventive Detention Act, 1950 and he challenged the preventive detention made on the ground that is infringement of his fundamental rights under Article 19 & 21 of Indian Constitution of India. The Supreme Court held that only the unconstitutional provision of the challenged Act will be void according the Doctrine of Severability. 

State of Bombay & Anr. Vs. F. N. Balsar, the unconstitutional portions of the Bombay Prohibition Act were declared void by the Supreme Court as the portion of invalid was separable from the rest of the act.

 

Minerva Mills & Ors. Vs. Union of India & Ors., The Supreme Court struck down the Section 4 & 55 of the 42nd Amendment Act (1976) as it was found ultra vires beyond the amending power of the Parliament. It declares the rest of the Act as valid.