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Doctrine Of Severability And Its Application Under Article 370

Meaning of Doctrine of Severability:

When a part of the statute is declared unconstitutional then a question arises whether the whole of the statute is to be declared void or only that part which is unconstitutional should be declared as such.

To resolve this problem, the Supreme Court has devised the doctrine of Severability.

This is also called as Doctrine of Separability

This doctrine means that if an offending provision can be separated from that which is constitutional then only that part which is offending is to be declared as void and not the entire statute.

Definition for application of Doctrine of Severability:

Article 13 of the Constitution uses the words " to the extent of such inconsistency be void " which means that when provision of the law is held to be unconstitutional then only the repugnant provisions of the law in question shall be treated by courts as void and not the whole statute.

It means that "only those parts of the Act which are inconsistent would become invalid incase of infringement of any person's right guaranteed under Part 3 of the Constitution (Fundamental Rights)."

Landmark Judgements:
In A.K.Gopalan Vs State of Madras (1950), the Supreme Court while declaring the Section of 14 of the Preventive Detention Act, 1950, as ultra vires, observed: "The impugned Act minus this section can remain unaffected. The omission of the section will not change the nature or the structure of the subject of the legislation. Therefore, the decision that Section 14 is ultra vires does not affect the validity of the rest of the Act."

Similarly in State of Bombay Vs Balsara (1951), under Bombay Prohibition Act, 1949, it was observed that the provisions which have been declared as void do not affect the entire statute, therefore, there is no necessity for declaring the statute as invalid.

In Ramesh Thappar Vs State of Madras ( 1950) the Supreme Court observed that " Where a law purports to authorise the imposition of restrictions on a Fundamental Right in language wife enough to cover restrictions, both within and without the limits provided by the Constitution and where is not possible to seperate the two, the whole law is to be struck down. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly void."

The doctrine of Severability was elaborately considered in R.M.D.C. Vs Union of India (1957) case , Section 2 (d) of the Prize Competition Act, which was broad enough to include competitions of a gambling nature as well as competitions involving skill was involved. The Supreme Court held that the provisions of the Act were severable and struck down those provisions which related to competition involving skill.

Test for Doctrine of Severability:

  • Where after removing the invalid provision what remains constitutes a complete Code there is no necessary to declare the whole Act invalid, the intention of the Legislature is the determining factor.
  • The test to be applied is whether the Legislature would have enacted the valid part of it had known that the rest of the statute was invalid.
  • Severability is the question of substance and not of form, and in determining the intention of the Legislature it is legitimate to take into account of history of the legislation and its object.
  • But, if what remains on the statute book cannot be enforced without making alteration the whole Act should be declared as void.

Article 370:

  • Article 370 was the special status given to Jammu and Kashmir by the Indian Constitution.
  • Article 370 under Part XXI empowers Jammu & Kashmir to have its own constitution. It grants autonomous status to J&K. It restricts Parliament's legislative powers in respect of J&K.
  • Article 35A stems from Article 370 and was introduced through a Presidential Order in 1954, on the recommendation of the J&K Constituent Assembly.
  • Article 35A empowers the Jammu & Kashmir legislature to define the permanent residents of the state, and their special rights and privileges.
  • It appears in Appendix I of the Constitution.

Current Situation of Article 370:

  • Under Article 370- The Constituent Assembly of Jammu & Kashmir was empowered to recommend which articles of the Indian Constitution should apply to the state,
  • The J&K Constituent Assembly was dissolved after it drafted the state's constitution. Clause 3 of the article 370 gives the President of India the power to amend its provisions and scope.

Result of Abrogation of Article 370:

  • The special status provided to J&K under Article 370 will be abolished.
  • Jammu & Kashmir will no longer have the separate constitution, flag, or anthem.
  • The citizens of Jammu and Kashmir will not have dual citizenship.
  • As the new union territory of Jammu and Kashmir will be subject to the Indian Constitution, its citizens will now have the Fundamental Rights enshrined in the Indian constitution.
  • Article 360, which can be used to declare a Financial Emergency, will now also be applicable.
  • All laws passed by Parliament will be applicable in Jammu and Kashmir, including the Right to Information Act and the Right to Education Act.

Application of Doctrine of Severability under Article 370:

  • On August 5, 2019, the Union government diluted Article 370, revoking Jammu and Kashmir's special status. First, President Ram Nath Kovind issued presidential order Constitutional Order (CO) 272.
  • This Order allowed the Union to amend Article 370 without the recommendation of the Constituent Assembly.
  • Therefore, the parts of CO 272 which dealt with the President's powers under Article 370(1)(d) were declared as valid and constitutional by the SC (The Doctrine of Severability becomes of interest here, which allows a Constitutional Court, like the SC, to declare parts of any governmental action void.
  • Article 35A, which originates from the provisions of Article 370 will be null and void.
  • Since Presidential Order has extended all provisions of the Constitution to Jammu and Kashmir, including the chapter on Fundamental Rights, the discriminatory provisions under Article 35A will now be unconstitutional.
Thus, the Doctrine of Severability is applicable to Article 370 of the Constitution of India 1950.

  • Professional's The Constitution of India Bare Act.
  • The Constitutional Law of India by Dr. J. N. Pandey.
  • A. K. Gopalan Vs State of Madras AIR 1950 SC 27:1950 SCJ 174.
  • State of Bombay Vs Balsara 1951 AIR 318, 1951 SCR 682.
  • Ramesh Thappar Vs State of Madras AIR 1950 SC 124.
  • R. M. D. C. Vs Union of India AIR 1957 SC 628.
  • Abrogation of Article 370 Judgment Summary -
  • BYJU'S - Article 370:
  • The Quint - Supreme Court Abrogation of Article 370:
  • Indian Express - Article 370 Verdict Explained -
  • Drishti IAS - Decoding the Supreme Court Verdict on Article 370 -

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