Assignment IOS
Assignment IOS
Assignment IOS
DOCTRINE OF SEVERABILITY
DEPARTMENT OF LAW
TRINITY INSTITUTE OF PROFESSIONAL STUDIES
The intention of the legislature behind this is the determine whether the invalid portion of the
statute can be severed from the valid part or not.
And if both the valid and invalid parts can’t be separated from each other then the invalidity of
the portion of the statute will result in the invalidity of the whole act.
Even if the invalid portion is separate from the valid portion.
It is the power and duty of the courts to declare a law which is inconsistent with the constitution
of India to be unconstitutional. The foundation of this power of judicial review as it was
explained by a nine-judge bench is the theory that the constitution which is the fundamental law
of the land, is the will of the people, while the statute is only the creation of the elected
representatives of the people, when therefore the will of the legislature as declared in a statute,
stands in opposition to that of the people as declared in the Constitution, the will of the people
must prevail.
It is not necessary for the court to even strike down a complete provision. Where the
objectionable and valid parts are contained in the same section and the two parts are distinct and
severable from each other, then the court may invalidate only the objectionable part.
The doctrine of severability can be applied to the decisions of the courts as well as quasi judicial
bodies.
There are two primary factors that the courts consider while determining whether the doctrine of
severability should be applied or not. The first factor is the legislative intent. If the courts find
that the legislative intent behind the enactment of the concerned statute favours severance, then
the courts will apply the doctrine. The second factor is public interest. The courts apply the
doctrine of severance only if it is evident that the application of this doctrine would serve the
public interest.
The doctrine of severability can be applied to invalidate the unconstitutional portion of a
provision that is not related to the overall object of the statute. Thus, the unconstitutional portion
can be separate and severed from an otherwise constitutional provision. This process of omitting
an unconstitutional portion does not amount to judicial legislation.
Similarly, the entire statute will have to be struck down if the effect of severance is such that the
valid residue part becomes substantially different from what the legislature intended it to be.
In Chintaman Rao v. State of Madhya Pradesh (1950), the government enacted a law to prohibit
agricultural labourers from being engaged in the manufacture of beedis. The purpose of the law
was to facilitate greater production of food crops and to ensure that adequate labour was
available for agricultural purposes. The law authorised the Deputy Commissioner to prohibit the
agricultural labourers of a particular notified region from being engaged in bidi manufacture
during the agricultural season.
Issue
The Deputy Commissioner issued an order prohibiting all persons residing in the notified
villages from undertaking work in bidi manufacturing. The order was challenged on the ground
of being violative of the fundamental right to carry on any trade or occupation contained in
Article 19(1)(g) of the Constitution.
Decision of the Court
The Supreme Court found the law to be violative of the fundamental rights of the people in the
villages. The Court observed that the order of the Commissioner prevented not only the
agricultural labourers but also the old, infirm, women, and other persons from working in the
beedi manufacturing activities. Thus, those who could not be employed in agricultural activities
were also restricted from undertaking beedi manufacturing work.
The Court observed that the portion of the law that imposed restrictions on agricultural labourers
could not be separated from the portion imposing restrictions on other persons. The language
used in the Act was wide enough to cover both constitutionally permissible and impermissible
restrictions. Thus, the doctrine of severability could not be applied to the case.
Arguments
The petitioners contended that the discriminatory portion should be read down by applying the
doctrine of severability. However, the Attorney General pleaded that the legislature has the
competence to determine the scope of the beneficial legislation. The judiciary would be
transgressing into the legislative field by applying the doctrine of severability to expand the
scope of the scheme. Lastly, the Attorney General submitted that the doctrine of severability
should always cut the scope of the scheme and not enlarge it.
Judgment
The Supreme Court held that the classification on the basis of the date of retirement was arbitrary
and violative of Article 14 of the Constitution. Thus, the Court applied the doctrine of
severability and read down the provision making the classification on the basis of retirement
date. The scope of the Act was thus enlarged, and the people who retired before the prescribed
date were also brought within the purview of the Act.
The Court observed that the reading down of the objectionable portion would not make the
overall scheme vague or unenforceable, and thus, there was no difficulty in severing the illegal
and arbitrary portion.
Article 14 of the Constitution targets arbitrariness, and if an arbitrary portion of a statute can be
omitted by the application of the doctrine of severability, then the same should be struck down
while retaining the overall scheme.
However, no legislature passed a statute with the idea that some part of it may be constitutionally
objectionable. Thus, the courts have the dubious function of determining the intent that never
existed. There is no evidence as to the actual intent of the legislature, and the hypothetical intent
is based merely on the views of the courts.
• The doctrine of severability gives the courts the power to excise or expand the scope of a
particular statute. This may amount to a transgression into the legislative field.
• The doctrine of severability also expands the scope of a particular suit or petition. The
petitioner might have challenged a particular provision of a statute, but if the court
determines that the provision is unconstitutional, then the validity of the entire statute comes
under scrutiny. Once the court finds that the provision challenged by the petitioner is ultra
vires, it goes on to examine whether the remaining provisions are valid and whether they can
be severed from the objectionable provisions.
The exercise of this power becomes unjustified when the petitioner has no locus standi to
challenge the constitutionality of the entire statute, but due to the operation of the doctrine of
severability, the entire law comes under the scrutiny of the court. As per the general principle, a
plaintiff has to establish the locus standi for every provision that he challenges. However, there is
a visible departure from the general principle in the case of the application of the doctrine of
severability.
Conclusion
The doctrine of severability is an important legal principle used to address the constitutionality of
statutes when some provisions are found to be inconsistent with the Fundamental Rights
guaranteed by the Constitution. When a specific provision of a statute violates fundamental
rights, the court can declare only that particular provision void, leaving the rest of the statute
intact and enforceable. The court’s intention is to separate the valid parts from the invalid ones to
preserve the constitutionally sound aspects of the law.
However, suppose the invalid provision is so intertwined with the rest of the statute that they
cannot be separated without rendering the entire law inoperable. In that case, the court may strike
down the entire statute. The burden of proof lies with the party challenging the law’s
constitutionality, and they must demonstrate that their fundamental rights have been violated.
Over the years, several landmark cases and constitutional amendments have shaped the
understanding of the doctrine of severability in India. While the Constitution explicitly excludes
certain laws from Article 13’s purview, amendments and judicial decisions have clarified that
even constitutional amendments are not immune from judicial review, especially if they damage
the basic structure of the Constitution.
References
https://lawbhoomi.com/doctrine-of-severability/
https://blog.ipleaders.in/doctrine-of-severability/#Practice_of_doctrine_of_severability
https://testbook.com/ias-preparation/doctrine-of-severability
https://byjus.com/free-ias-prep/doctrine-of-
severability/#:~:text=The%20doctrine%20of%20severability%20means,and%20not%20the%20e
ntire%20statute.