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Doctrine of Severability

The Doctrine of Severability or Doctrine of Separability was conceive by the Supreme Court to resolve the issue of validity of laws which are held as unconstitutional and due to which a question was raised as to whether the whole Act should be declared as unconstitutional even if only a part of the whole Act has been declared as void.

Basically this doctrine is interlinked from the Article 13 because the doctrine through the Article 13 of the Indian Constitution opens the doors for the judicial review on any law or part of it that is found unconstitutional or violative of fundamental rights[1] and according to the Article the doctrine of severability means a law which is declared as void is only to the extent of inconsistency or contravention with the Fundamental Rights of the Indian Constitution[2].

The doctrine of severability states that any provision or a portion of law in a Statute or an Act inconsistent or offensive with the fundamental rights of the Indian Constitution then such offending part shall be declared as void and not the whole Statute or an Act.

This doctrine's basic moto is to remove only the bad provision which is violative of the fundamental rights under the Indian Constitution from the whole Statute or Act, not the whole Statute. So in any of the Act if the good and the bad provisions are joined together by and or or then in a such a case if the good provision is not dependent upon the bad provision then the bad provision can be separated and can be declared as void and the good provision will be still considered as valid.

However in a case wherein the whole statute or Act is dependent upon a bad provision (provision violative of the fundamental rights) and it's the essence of the whole statute and after removal of such provision the whole statute will be of no use then in such a case wherein it becomes impossible to separate the bad provision, the court has the right to declare the whole Act as void.

The Doctrine of Severability is not a new thing, it hasn't been adopted very recently either. Basically this Doctrine was originated by a case of Nordenfelt v. Maxim Nodernfelt Guns and Ammunition Company Ltd. in England, United Kingdom and also in one of the case in United States of America in the year 1876 the first case of doctrine of severability was decided. This doctrine has been adopted in many other countries other than the countries mentioned above like Australia, India and Malaysia.

India had chosen the best features from the other countries for our constitution like the Fundamental Rights form the USA and Doctrine of Severability from United Kingdom and by adopting the principles of severability India upholds the doctrine of 'Natural Justice'.

There are many landmark Judgments due to which the Doctrine of Severability became prevalent today and is being followed widely, the cases are as follows:
Champlin Refining Co. v. Corp. Commission of Oklahoma[1],1932 and Ayotte vs. Planned Parenthood of N. New Eng, 1894, the court discussed the doctrine of Severability in detail and propounded 3 principles of rationality to sever the problematic portions of an act and to approve the rest of it. The three interrelated principles are as follows-

The court tries not to nullify more of a legislature's work than is necessary.

Mindful that its constitutional mandate and institutional competence are limited, the Court restrains itself from rewriting the state law to confirm it to constitutional requirements

The touchstone for any decision about remedy is legislative intent.

A.K. Gopalan v State of Madras (1950) � In this case the petitioner, a communist leader challenged the Supreme Court stating that before detaining any person the person has the right to know on what grounds he/ she has been arrested or detained as he was detained under Section 14 of the Preventive Detention Act, 1950 hence he argued that his fundamental rights i.e Article 19 (Freedom of Movement) and Article 21 (Personal liberty) has been violated.

As Section 14 of Preventive Detention Act, 1950 stated that the police shouldn't be disclosing the grounds under which a person is being arrested and hence it was argued before the court Sec. 14 is violative of the Fundamental Rights of the Constitution and therefore the Supreme Court held Sec. 14 of the Preventive Detention Act, 1950 as unconstitutional because it is violative of Article 22 of the Indian Constitution which states that any person who is arrested, cannot be detained in custody without being informed of the grounds.

R.M.D.C. v. Union of India (1957):
This case finds its significant place among other landmark judgements as the entire judgement observed Doctrine of severability and its observations are:
  • The Intention of the legislature is the determining factor whether the valid part of a law is severable from the invalid parts
  • If the valid and invalid portion of an act is closely amalgamated in a way that it cannot be separated, the invalidity of a portion may result in invalidity of the entire Act.
  • On the other hand, if they are so distinct and separable after striking out the invalid portions of an Act, it becomes enforceable.
  • Courts would be reluctant to declare a law invalid or ultra vires on account of unconstitutionality.
  • Courts would accept an interpretation, which would be in favour of constitutionality rather than the one which render the law unconstitutional.
  • The court can resort to reading down a law in order to save it from being rendered unconstitutional. But, while doing so, it cannot change the essence of the law and create a new law which in its opinion is more desirable.
State of Bomaby v. F.N. Balsara (1951):
In this case the unconstitutional part of the Bombay Prohibition Act was declared as unenforceable and void by the Supreme Court of India because the portion which was declared as invalid was separable from the whole Act therefore the Court only declared the portion going against the fundamental rights of the Constitution and not the whole Act.

Kihoto Hollahan v. Zachillu (1965):
This case is popularly called as the Defection Case. In this case the court held that the Para 7 of the 10th Schedule of the Indian Constitution by the 52nd Amendment Act, 1985 as unconstitutional because it was observed by the Court that Para 7 was violating the provisions under Article 368 (2), however but the court only declared the Para 7 as void and upheld the rest of the provisions under the 10th Schedule as valid.

The term Severability Clause has been defied under Black's Law Dictionary to mean a provision that keeps the remaining provisions of a contract or statute in force, if any portion of that contract or statute is judicially declared void, unenforceable, or unconstitutional or to mean a Judicial standard for deciding whether to invalidate the whole contract or only the offending words.

Under this standard, only the offending words are invalidated if it would be possible to delete them simply by running the blue-pencil through them, as opposed to changing, adding or re-arranging words[1]. India adopting the Principles of Severability has made the Indian constitution to upheld the rule of natural justice; it widens up the scope for judicial review to declare the unconstitutionality of any Law as to whether any laws pre or post establishment of Indian Constitution goes against the fundamental rights.

This doctrine also enables the Supreme Court and the High Court to review the existing and the pre- constitutional laws by the contemporary rules and provisions under various laws also it authorizes the SC and HC to elucidate the laws. Therefore it can be safely considered that the Doctrine of Severability plays a very important role and is of an absolute relevance in the Judicial System of India.

Personal Opinion
Whether the doctrine is important?
Article 13 of the Indian Constitution states about the laws which can be declared as unconstitutional pre and post establishment of constitution which is violative of the fundamental rights and the doctrine of severability which also states about the same principles becomes important for the welfare of the public at large because the fundamental rights mentioned under the Indian Constitution is for the welfare of the citizens therefore it becomes very much essential to follow the doctrines of severability and to remove the laws violating the fundamental rights so that no one's fundamental rights gets infringed.

How is it helping the Judicial System?
Doctrine of severability helps the Judiciary to open the applicability of Judicial Review and to elucidate the Laws and Acts and also to declare the laws as unconstitutional or void which goes against the fundamental rights of the Indian Constitution.

Is there any better Alternative?
The doctrine of severability states about two principles for the declaring the laws or acts as unconstitutional:
  1. By only declaring a part or a provision as unconstitutional from the whole act.
  2. By declaring the whole act as unconstitutional because by the absence (declaring the provision void) of a provision, which is the essence of the whole Act makes the Act useless.

According to me the first rule is absolutely correct because it's only a part or a provision which is been declared as void or unconstitutional, not the whole act whereas talking about the second rule if a provision or a part of a Act is declared as unconstitutional which is the essence of the whole Act and hence the whole Act declared as unconstitutional doesn't seem to be right because it's not just about a provision it's about the whole Act being declared as void and unenforceable.

So for the second rule it's better to follow the doctrine of Eclipse than Doctrine of Severability because the doctrine of Eclipse only makes the Law unenforceable and invalid and not completely void or dead from the beginning, hence under the second situation the better alternative is to declare the Law violating the fundamental rights as invalid under Doctrine of Eclipse.


    Award Winning Article Is Written By: Ms.Divita Yadav
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    Authentication No: SP125984205612-16-0921

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