Notes- Constitution of India-The doctrine of Severability( Separability)

Prepared by Assist. Professor Rekha Khandelwal

Constitution of India -Part – III-Article 13

Constitution of India

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The doctrine of Severability ( Separability)

The doctrine extracts its validity from Article 13 which states,

‘All laws in force in the territory of India immediately before the commencement of this Constitution shall be void to the extent to which they are  inconsistent with the provisions of Part III of the Constitution.’

 It is clear from the word separability that it means to separate. According to this doctrine “Separability” When a part of the statute is offending and contrary to the provisions of part III (fundamental rights) of the constitution but that part can be separated from the rest of the statute which is Constitutional then only that part which is offending & contrary will be declared void by the courts and not the entire statute.

Cases related to doctrine of Severability

 Motor General Traders v. State of A.P.,[1] (1984) 1 SCC 222

Article 13 of the Constitution uses the word “to the extent of such inconsistency be void” which means that when some provisions 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 statue.

Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Company Ltd, 1876

The doctrine of Severability wss used in the case. The court struck down the violative part of a contract and held that the rest part of the contract could proceed after severing the violative part.

In AK Gopalan v. State of Madras,[2] AIR 1950 SC 27

The Court struck down Section 14 of the Preventive Detention Act, 1950 which was violative of Article 14 of the Constitution. The Court declared striking down Section 14 will not affect the validity of the rest part of the Act. Thus only the violative provision of the act will be struck down not the whole act.

In State of Bombay v. FN Balsara,[3] AIR 1951 SC 318

 It was held that the violative provisions of the Bombay Prohibition Act, 1949, which  have been declared void do not affect the the entire statute. Therefore, there was no need to declare entire statute invalid.

In the case of R.M.D.C v. Union of India,[4]AIR 1957 SC 628

The doctrine of severability was elaborately discussed and the court laid down the following principles.

  • To determine whether the valid portion of the statute can be distinguished from the invalid part. The purpose of the legislature is the determining factor
  • If the valid and invalid portions of a particular statute are inseparable, it will inevitably become invalid for the whole statute.
  • If An Act stands separately after the invalid provision cross out, it will be bound, yet the rest of the statute cannot be enforced.
  • Separability is to be determined by reading the entire statute not specific provisions or parts.
  • If the valid and invalid parts are separate and not part of the same strategy, however, the validation of the valid part leaves the remaining parts very thin and cut, but it will also be completely invalid.
  • It would be valid to consider the title, object, preamble and history in order to find the legal purpose behind any behind a statute.
  • If the valid and invalid portions are separable but both of them were considered  to be part of the same strategy, the entire strategy will be invalid.

In Kihoto Hollohan v. Zachillu,[5] AIR 1993 SC 412 

 It held that the Tenth Schedule minus para para 7 remains valid and constitutional. Para 7 which has been declared unconstitutional for violating the provisions of Article 368(2) is severable from the main provisions of the Tenth Schedule. The rest provisions of the Tenth Schedule are independent of Para 7 and are themselves complete and efficient. Para 7 of the Tenth Schedule provide that the speaker’s decision regarding the disqualification shall be final and no court could examine its validity.

[1] Motor General Traders v. State of A.P.,[1] (1984) 1 SCC 222

[2]  AK Gopalan v. State of Madras, AIR 1950 SC 27

[3] State of Bombay v. FN Balsara, AIR 1951 SC 318

[4] In the case of R.M.D.C v. Union of India, AIR 1957 SC 628

[5] In Kihoto Hollohan v. Zachillu, AIR 1993 SC 412 

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