doctrines of severability full Overview .pdf

Doctrine of severability brief

1. Doctrine of
Severability
A Brief Overview

2. Meaning
1.The doctrine of severabilityor doctrine of separabilitymeans
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.
2.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.

3. History
1.The Doctrine was originated by a case of Nordenfeltv. Maxim
NodernfeltGuns and Ammunition Company Ltd. in England, United
Kingdom and in one of the case in United States of America in the year
1876 the first case of doctrine of severabilitywas decided.
2. The practice of Doctrine of Severability has been in practice for a very
long time, and it is not a new thing. It has been adopted in many countries
like United Kingdom, Australia, United States of America, Malaysia and so
as well in our country which is India.

4. Laws inconsistent with or in derogation of the
fundamental rights
1.Article 13 (1) of the Indian Constitution provides forDoctrine of
Severabilitywhich states that All laws in force in India before the
commencement of Constitutionshall be void in so far, they are
inconsistent with the provisions of the Constitution.
2.A law becomes invalid only to the extent to which it is inconsistent
with the fundamental rights. So only that part of the law will be
declared invalid which is inconsistent, and the rest of the law will
stand.

5. CASE LAW
1.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
detainedunder Section 14 of the Preventive Detention Act, 1950 hence he argued
that his fundamental rights i.eArticle 19 (Freedom of Movement) and Article 21
(Personal liberty) has been violated.
2.State of Bombay vs F.N Balsara and here it was held that the provision of the
Bombay Prohibition Act,1949 where the entire act was declared as void and it did not
affected the rest of the part and there was no need to declare the whole statute as void.

6. 3.Minerva Mills vs Union of Indiawhere section 4 of 55 of the 42
nd
Amendment Act,1976 was struck down for being beyond the amending
power of the parliament and then it had declared the rest of the act as valid.
4.KihotoHollohanvs Zachillhu paragraph 7 of the tenth Schedule
which was first inserted by the 52
nd
Amendment Act of 1985 was declare
as unconstitutional because it had violated the provision under Article 368
(2).

7. 2. R.M.D.C. v. Union of India(1957) -Principles laid down in –
•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 favourof 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.