Article 13 bars the state from making laws that take away or abridge the fundamental rights of citizens. Further, it states that any laws which are inconsistent or in contravention of the fundamental rights shall be void ab initio to the extent they are in violation of it. The phrase to the extent is significant here; this means that the impugned law need not be struck down in its entirety. It would be enough for the court to strike it down to the extent it is impugned, and the rest of the provisions may be allowed to remain in force. However, this may become possible only if the guilty portion is capable of being severed from the rest of the law. In case the violative portion of the law is so deeply intermeshed with the rest of the provisions that it cannot be severed, then the entire law must be struck down. This in a nutshell is the doctrine of severability- the power of the Supreme Court, or the High Court, as the case may be, to severe/cut out from law the portion that is violative of a fundamental right; of course, with the added qualification that if severing is not possible then the whole body of the law must go.
Explaining the doctrine of severability in R. M. D. Chamarbaugwalla vs The Union Of India, 1957 AIR 628, 1957 SCR 930, the Supreme Court observed, “When a legislature whose authority is subject to limitations aforesaid enacts a law which is wholly in excess of its powers, it is entirely void and must be completely ignored. But when the legislation falls in part within the area allotted to it and in part outside it, it is undoubtedly void as to the latter; but does it on that become necessarily void in its entirety? The answer to this question must depend on whether what is valid could be separated from what is invalid, and that is a question which has to be decided by the Court on a consideration of the provisions of the Act” The RMDC case was about a law titled the Prize Competitions Act, that sought to curb gambling. However, the scope of the act was broad enough to also affect games that involved knowledge and skill. As per Article 19 (1) (g), citizens of India are free to practice any profession or to carry on any occupation, trade, or business. Therefore, the state is at liberty to restrict games of a gambling nature only. Taking into account the facts of the case and the provisions of the act, the supreme court held that provisions which applied to games that did not entail any substantial skill or knowledge were severable.
Through its judgments over years, the supreme court has laid down the criteria to judge whether the impugned law must be struck down whole or whether it is enough to apply the doctrine of severability and let the rest of the law be.
In RMD Chamarbuagwala, the Supreme Court observed that the intent of the legislature is of crucial significance in determining whether the valid parts of a statute should be allowed to remain in force. Reiterating the same stance the Supreme court said in Harakchand v. Union of India, AIR 1970 SC 1453 : (1969) 2 SCC 166, “The test is whether the Legislature would have enacted the valid parts had it known that the rest of the statute was invalid.” In the same vein, in Kihoto Hollohan vs Zachillhu And Others, 18 February 1992, the Supreme Court observed that “The test of severability requires the Court to ascertain whether the legislature would at all have enacted the law if severed part was not the part of the law”. In general, to ascertain the intent behind passing a law, courts have tended to look into its background, object, and preamble.
Finding out the intent of the government behind passing the law goes a long way toward ascertaining whether the violative portion of the impugned law was a result of an oversight or deliberately thought out design. In general, if the former is the case then the challenged portions of the law are easier to weed out, so that the rest of the law may survive and thrive.
The doctrine of severability was applied by the Supreme Court in A.K. Gopalan vs The State Of Madras, 1950 AIR 27, 1950 SCR 88. In this case, the dispute was over section 14 of the Prevention of Detention Act, 1950. It was argued that this law was in contravention of articles 19 and 21 of the Indian Constitution. The Supreme Court held that it was unnecessary to strike down the entire law; it was enough to severe section 14 from it and keep the rest of the law intact. The court observed that if the nature and intent behind the law remain unaltered despite the omission of the impugned section, it was enough to sever those sections from it and let the rest of the law remain intact.
The doctrine of severability was also applied in Minerva Mills v Union of India, 1980 AIR 1789, 1981 SCR (1) 206. In this case section 4 of the 42nd Amendment Act, 1976 was struck down as being violative of the fundamental right to seek judicial review. The court observed that this section was also in violation of the basic structure doctrine laid down in the Kesavananda Bharti Case; the parliament is not authorized by the Constitution to bar a citizen from approaching the supreme court to seek redress.
Sewpujanrai v. Customs Collector, AIR 1958 SC 845: 1959 SCR 821, sheds some more light on how the doctrine of severability is applied. In exercising the power of judicial review, the supreme court defines its task as being confined to expunging what is violative of fundamental rights. The judiciary desists from, as it should, taking over the task of legislation. Legislation being the task of the state, the court cannot take it upon itself the task of rewriting the law. Therefore, if after severing what needs to be voided, what is left of the law is so ‘thin and truncated’ as to be impossible to put into practice, or if the portion is taken out and the rest of the law were meant to operate together to be effective, then the entire law must be struck down.
It is impossible to lay down definitive criteria for when the doctrine of severability may be evoked, and the occasions on which the entire law has to be struck down. Successive judgments have laid down some criteria but none of them are held as being true once and for all. It is for this reason that courts have preferred to base their judgments on concrete facts and circumstances of particular cases.
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| The Doctrine of Severability/Doctrine of Separability |
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