Doctrine of Severability in Law

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Table of Contents
What is Severability?.......................................................................... 1
Origin of the Term ............................................................................. 2
Global Practice of Severability ........................................................... 2
United Kingdom.......................................................................................................... 2
United States ............................................................................................................... 4
Australia ..................................................................................................................... 6
Malaysia.................................................................................................................... 11
India .......................................................................................................................... 12
Position of Author ............................................................................. 22
Bibliography ……………………………………………………………………………………24

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What is Severability?
The Doctrine of Severability is a very important judicial innovation-cum-judicial
doctrine in the field of Constitutional Law. The primary purpose of such a
doctrine is to separate that portion of statutory legislation deemed to be void ab initio
(void from the very inception) from the part or portion considered being of a valid
nature. The word ‘severe’ has come from the Latin word ‘salvatorious’. It means ‘to
estrange’, ‘separate’, ‘isolate’ or ‘segregate’. Merriam-Webster’s English dictionar y
defines severability as “…invalidation of some sections or clauses in the document
(that) will not affect the validity of the remainder.” The Oxford Dictionary defines
severability as “...a provision in a contract, statute, or other legal document containing
an exemption from one or more of its conditions and provisions.” Similarly, various
legal dictionaries define ‘severability’ as “...that which is capable of being separated
from other things to which it is joined and maintaining nonetheless a complete and
independent existence.” Cooley's Constitutional Limitationsi states that if the valid and
invalid provisions are so inextricably mixed up that they cannot be separated from one
another, then the invalidity of a portion must result in the invalidity of the Act in its
entirety. On the other hand, if they are so distinct and separate that after striking out
what is invalid, what remains is in itself a complete code independent of the rest, then
it will be upheld notwithstanding that the rest has become unenforceable. Crawford on
Statutory Constructionii states that even when the provisions which are valid are distinct
and separate from those which are invalid, if they all form part of a single scheme which
is intended to be operative as a whole, then also the invalidity of a part will result in the
failure of the whole.
According to medical terminology, severability refers to something that is
“…broken off or detached.” Similarly, the Indian Contract Act (1872) defines
severability, although not directly, as “...an agreement not enforceable by law is said to
be void.” If we look at the common link that prevails in all these definitions, we see
that severability of something means that that particular thing is no longer conjoined as
a whole, but has now separated into two or more fragments. Therefore, according to
judicial interpretations and various insights made into the field of constitutional law,
the concept of ‘Severability’ or ‘separability’ means that if an offending and
inappropriate provision of statutory legislation can be separated from that portion of the

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statute which is deemed to be of a valid and constitutional nature, then only that part
which is offending and repugnant shall be declared as being void, and not the entire
statute itself.
Origin of the Term
The Doctrine of Severability owes its origins to the Law of Contracts. In the
Law of Contracts, this Doctrine has been defined as “...if parts of the contract are held
to be illegal or otherwise unenforceable, the remainder of the contract should still
apply.” However this rule is not an indefeasible or absolute one. There are certain
limitations/restrictions that have been placed on such a rule. These limitations clearly
state that should the fundamental principles and grounds of the(any) primary contract
in question be changed, altered, modified, restructured, rearranged, reshuffled,
destroyed, or amended in any way without altering the fundamental meaning and
subsequent interpretation of such contract, then the Doctrine of Severability shall not
be applicable to such a contract.
Global Practice of Severability
United Kingdom
In England, the Doctrine of Severability traces its origins to the historic case of
Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Company Ltdiii. In this case, a
manufacturer (Nordenfelt) was specializing in the making of certain armaments. He
later on sold his business to a certain American inventor, Sir Hiram Maxim. The
agreement between the parties was that Nordfelt would not make guns or ammunit ion
anywhere else in the world. Neither would he (Nordfelt) compete or attempt to compete
with Maxim for a period of 25 years. Subsequently, a case was filed before the House
of Lords. Two contentious questions/issues arose before the House of Lords in this case.
The main (first) question that arose before the House of Lords was whether the Doctrine
of Severability would be applicable to such a scenario or not. And secondly, even
assuming that the restrictive covenants that were imposed on Nordenfelt were deemed
of a ‘reasonable’ nature indeed, the contentious issue(s) that the House of Lords would
need to debate on was whether such restriction(s) could, in fact, be enforced when they

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were present in the same contract, but as ‘unreasonable’ and ‘unenforceab le’
restrictions.
In this particular case, the House of Lords gave a two-fold judgment after
carefully ruminating and debating over the central fact-in-issues that were deemed to
be manifested on the surface of the case itself. Firstly, they held that since Nordfelt had
already paid a substantial sum amount of money as “legal” consideration to Maxim in
exchange to honor his (Nordfelt’s) promise to cease-and-desist from manufactur ing
armaments, the contractual provisions that sought to ban him from manufactur ing
armaments and guns around the world were of a valid legal nature. But as far as the
second condition of banning competition for a period of 25 years was imposed, the
House of Lords felt it was unfair and fell more into the nature of a “restraint of trade”—
a forbidden commercial practice employed by proponents of monopoly and
subsequently prohibited by the law due to the obvious reasons of it being violative to
the principles of ‘fair’ free trade; a mode of trade practice, wherein fair competitio n
amongst sellers was being given a backseat to monopolistic trade practices of a
restrictive nature, thus being clearly violative of the ‘fair competition’ policy
enunciated and followed by many in a slowly-globalizing market. This was because it
was totally in direct contravention to the principle of ‘fair competitive policies’ that
were the basis of free trade. The House of Lords felt that such an agreement between
these two contracting parties in its express written format would amount to
monopolization of the business and lead to greater detriment of Nordfelt’s business,
including the fundamental principles of “fair competition”.
In a sense, the Court (through the House of Lords), whilst invoking the “blue -
pencil doctrine” philosophy, (a legal provision where the Court determines whether
contractual obligations can be partly enforced when the main object of the contract has
certain elements of illegality embedded in it) held that the first covenant ordering
Nordfelt to not make guns or ammunition was warranted valid because there was no
concept of unreasonableness on the part of public policy. Also, the legitimate interests
of both the contracting parties were being protected, as was the reasonableness of the
terms and conditions of the contract in question. Hence, the Doctrine of Severabilit y
could be applied in separating the unreasonable part of the agreement (viz. the portion
decreeing Nordfelt to abstain or refrain from competition with Maxim) from the
reasonable part (viz. the protection of public interests and its attendants-- protection of

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legitimate interests including both parties’ contentions of the terms of the agreement
being of a reasonable and valid nature). This marked the beginning of the introduct ion
to (and subsequent entry of) the Doctrine of Severability in England.
United States
The Supreme Court decided its first severability case in 1876iv, which quickly
evolved into asking if Congress would have enacted the challenged statute had it known
the invalid provision at issue would be discardedv. In this case, the question centered
around the Fifteenth Amendment to the American Constitution that talked of voting
right not being denied to American male citizens on the basis of race, color, or prior
conditions of servitude. The core issue(s) revolving around this case was whether the
US Congress would have enacted the said challenged statute had it known such a statute
would have been subsequently discarded. The Court held that although the Fifteenth
Amendment did not confer the right of suffrage, yet it prohibited exclusion of voting
on racial grounds. Additionally, the judges held that under Section 3 of the Enforceme nt
Act (1870), the Fifteenth Amendment’s words pertaining to race, color, and servitude
were not expressly reiterated in the Act itself. Hence, the Section having overridden the
provisions of the Act itself, the Court subsequently declared such legislation void.
The Court shortly thereafter added that provisions are non-severable when
retaining the statute without them would create effects not severability is whether the
statute will function in a manner consistent with the intent of Congress.”vi After a half-century
of developing the concepts explored in this Art., the Court declared the first
clear severability test in 1932vii. In Champlin Refining Co. v. Corp. Commission of
Oklahoma. An oil refining company challenged several provisions of an Oklahoma
statute, arguing that these provisions violated the Commerce Clause and the Fourteenth
Amendment’s Due Process and Equal Protection Clauses. In determining whether one
of these provisions could be struck down and then separated from the residue of the oil
and gas statute at issue, the Supreme Court declared a general rule of severability that
continues to be invoked:
The unconstitutionality of a part of an act does not necessarily defeat or
affect the validity of its remaining provisions. Unless it is evident that
the Legislature would not have enacted those provisions which are

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within its power, independently of that which is not, the invalid part may
be dropped if what is left is fully operative as a law.
Then in 2006 the Supreme Court expounded three principles as an underlying
rationale to inform severability inquiriesviii. In Ayotte v. Planned Parenthood of N. New
Eng.ix, the Court laid down three principles of severability, “First, we try not to nullif y
more of a legislature's work than is necessary . . . . Second . . . we restrain ourselves
from rewriting state law to conform it to constitutional requirements even as we strive
to salvage it. Third . . . a court cannot use its remedial powers to circumvent the intent
of the legislature.”
In Cardegna. V Buckeye Check Cashingx, the defendant (Buckeye) took a loan
amount of $337.80 from a subsidiary of a certain cheque-recovery business
(Checksmart). Later on, he took another loan amount of a much higher value
(approximately $150), which he was unable to repay. He filed a class action suit with
the help of an activist lawyers’ group, claiming that the fee interest rates charged by the
plaintiff-activist company (i.e. Checksmart) were in excess of what ought to be charged
by the said company (i.e. a whopping 45% extra greater than the prescribed normal
amount). The Fourth Court of Appeal in Florida ruled that the whole contract had to be
challenged and not a specific part. Hence the doctrine of severability would not apply
in this case. On further appeal, the State Supreme Court opined that the contract was
void ab initio on the grounds that such void contracts that are absolutely void and
useless from the very beginning could never have any formal standing or supportive
footing of their own in the first place.
According to Raoul J. the majority of judges were in fact, ignorant of the
provisions set out in the Federal Aviation Authority (FAA) statute. However, on further
appeal, the State High Court of Florida, through Scalia J. opined that “...the definit ion
of contract included those that would or could be later voided since it explicit ly
mentioned such contracts that might later be revoked.” This is clearly indicative of the
Doctrine of Severability at work, since it (the doctrine) makes ‘void’ and ‘useless’ those
legislative statutes that could be separated from that which the legislature deemed to be
‘valid’—a happening that clearly is indicated by the Court’s final decision that in any
voidable contract, an arbitrator rule on all legal issues in question(including the legalit y
of the contract itself) would be questioned itself till such time the entire arbitration
clause itself would be challenged.

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Most recently, the Supreme Court synthesized decades of cases to restate
severability doctrine in the 2010 case Free Enterprise Fund v. Public Co. Accounting
Oversight Boardxi. This case should be construed as creating a two-step test combining
the previous test with various major severability cases. Under Free Enterprise Step
One, a reviewing court must determine whether all of the remaining provisions of the
statute are still fully functional without the constitutionally infirm provision. If so, a
court then asks under Free Enterprise Step Two whether Congress would be satisfied
with the remaining statute, invoking a century of case law concerning whether Congress
would have passed the abridged statute.
Also, in the current changing context of geopolitics in America, where politica l
trends on various topical issues (e.g. the ‘bouncing back to booming business doctrine’
(BBBBD) vary from time to time, the concept of the severability doctrine can be found
in the Obama administration’s set of government policies relating to healthcare issues
in America. The Executive of the United States of America is apprehensive as to what
might be the negative repercussions/negative aftermath that the applicability of this
judicial doctrine might have on its various introductory healthcare policies, in addition
to the endless number of insurance markets if “this individual mandate” (wherein
everyone buys a standard uniform healthcare insurance plan instead of selecting
different healthcare plans) overrides the American Congress’s statutory constitutio na l
powers
Australia
Section 15A of the Acts Interpretation Act 1901xii provides as follows:
Every Act shall be read and construed subject to the Constitution, and so
as not to exceed the legislative power of the Commonwealth, to the intent
that where any enactment thereof would, but for this section, have been
construed as being in excess of that power, it shall nevertheless be a valid
enactment to the extent to which it is not in excess of that power.
Section 15A does not mean that a provision drafted without regard to the extent
of Commonwealth legislative power will be valid in so far as it happens to apply to the
subject matter of a particular power. The High Court has held that section 15A is subject
to limitations. To be effective, a severability provision must overcome those limitations.

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The first limitation is, if there are a number of possible ways of reading down a
provision of general application, it will not be so read down unless the Parliame nt
indicates which supporting heads of legislative power it is relying onxiii. The Concrete
Pipes case concerned a severability provision which was held to be ineffective because
the list of supporting heads of legislative power did not exhaust the purported operation
of the operative provision in question.
The second limitation is that a provision of general application will not be read
down unless the Parliament indicates an intention that the provision is to have a
distributive operation: “… did [the Parliament] intend that the particular command or
requirement expressed in the provision should apply to or be fulfilled by each and every
person within the class independently of the application of the provision to the others;
or were all to go free unless all were bound?xiv
An example will serve to demonstrate. For instance, in Australia the common law
doctrine of restraint of trade continues to operate where it does not conflict with the
Competition and Consumer Act 2010. Briefly, the doctrine renders provisions which
impose restrictions on a person's freedom to engage in trade or employment illegal and
therefore unenforceable at common law unless they are demonstrated to be reasonable.
The provision must be reasonable both in the interests of the parties and in the interests
of the public. In Australia the doctrine of restraint of trade (RoT) is now limited in scope
because of the operation of the Competition and Consumer Act 2010, which captures
much of the sort of conduct that might previously have fallen for consideration under
the doctrine. There are, however, some exceptions. In particular, S. 4M provides that
the ROT doctrine continues to apply in so far as it can operate concurrently with the
Act and s 51(2)(b)(d)(e) excludes from the operation of Part IV of the Act (other than s
48 governing resale price maintenance) provisions relating to:
 restrictions on employment
 restrictions between partners and
 restrictions in a contract for the sale of a business.
Consequently it is in these areas that the RoT doctrine is most likely to operate.

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All agreements in restraint of trade are void unless:
 they are reasonable in the interest of the parties (onus on party relying on
restraint); and
 they are reasonable in the interest of the public (onus shifts to person seeking
to strike down restraint to demonstrate they are not reasonable in the interest of
the public)
When assessing reasonableness the courts will first consider whether there is a
'legitimate interest' or interests that require protection and, if so, will assess whether or
not the restraint does not more than is necessary to protect that interest; if the restraint
goes beyond what is necessary then it will not be considered reasonable. A wide range
of interests may be considered legitimate, including protecting trade secrets and
protection of business goodwill, and even the creation or maintenance of an even
sporting competitionxv. However, mere protection against competition does not
constitute a 'legitimate interest'xvi. The time for assessing the reasonableness of the
restraint is the date the restraint was imposed; reasonableness is not assessed at the time
the restraint is sought to be enforced or is challenged. In Adamson v New South Wales
Rugby League Ltdxvii Gummow J stated:
But there always remains the basic proposition … that the
reasonableness of a restraint of trade must be tested, not by reference to
what the parties have actually done or intend to do, but what the restraint
entitles or requires the parties to do … in my view it was not the case
that the issue of reasonableness of the restraint was to be determined by
looking to the manner in which from time to time it operated in practice
or might operate in practice. …
Parties will frequently draft restraint clauses to provide for different levels of
restraint, in the hope that if one or more restraints are found unreasonable, others may
nevertheless survive. These are known as ladder clauses and can be effective, provided
they are not uncertain (by reference to normal contractual principles) and provided that
the parties have made a genuine attempt to define a reasonable restraint and not left it
to the court to 'make their contract for them. The more numerous the restraints and/or
combinations of restraint involved, the more likely the parties have failed to make a
genuine attempt to define the protectionxviii.

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Accordingly, S. 4M of the Competition and Consumer Act 2010 does not affect
the operation of the law relating to restraint of trade in so far as that law is capable of
operating concurrently with this Act …but nothing in the law referred to in paragraph
(a) or (b) affects the interpretation of this Act. S. 51(2) states that “...In determining
whether a contravention of a provision of this Part other than section 45D, 45DA,
45DB, 45E, 45EA or 48 has been committed, regard shall not be had:
a. to any act done in relation to, or to the making of a contract or
arrangement or the entering into of an understanding, or to any provision
of a contract, arrangement or understanding, to the extent that the
contract, arrangement or understanding, or the provision, relates to, the
remuneration, conditions of employment, hours of work or working
conditions of employees;
b. to any provision of a contract of service or of a contract for the
provision of services, being a provision under which a person, not being
a body corporate, agrees to accept restrictions as to the work, whether as
an employee or otherwise, in which he or she may engage during, or
after the termination of, the contract;
c. to any provision of a contract, arrangement or understanding, being a
provision obliging a person to comply with or apply standards of
dimension, design, quality or performance prepared or approved by
Standards Australia or by a prescribed association or body;
d. to any provision of a contract, arrangement or understanding between
partners none of whom is a body corporate, being a provision in relation
to the terms of the partnership or the conduct of the partnership business
or in relation to competition between the partnership and a party to the
contract, arrangement or understanding while he or she is, or after he or
she ceases to be, a partner;
e. in the case of a contract for the sale of a business or of shares in the
capital of a body corporate carrying on a business - to any provision of
the contract that is solely for the protection of the purchaser in respect
of the goodwill of the business; or

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f. to any provision of a contract, arrangement or understanding, being a
provision that relates exclusively to the export of goods from Australia
or to the supply of services outside Australia, if full and accurate
particulars of the provision (not including particulars of prices for goods
or services but including particulars of any method of fixing, controlling
or maintaining such prices) were furnished to the Commission before
the expiration of 14 days after the date on which the contract or
arrangement was made or the understanding was arrived at, or before
8 September 1976, whichever was the later.
Likewise, S. 4 Restraints of Trade Act 1976 (New South Wales) prescribes the
extent to which restraint of trade is valid:
1. A restraint of trade is valid to the extent to which it is not against
public policy, whether it is in severable terms or not.
2. Subsection (1) does not affect the invalidity of a restraint of trade by
reason of any matter other than public policy.
3. Where, on application by a person subject to the restraint, it appears
to the Supreme Court that a restraint of trade is, as regards its application
to the applicant, against public policy to any extent by reason of, or
partly by reason of, a manifest failure by a person who created or joined
in creating the restraint to attempt to make the restraint a reasonable
restraint, the Court, having regard to the circumstances in which the
restraint was created, may, on such terms as the Court thinks fit, order
that the restraint be, as regards its application to the applicant, altogether
invalid or valid to such extent only (not exceeding the extent to which
the restraint is not against public policy) as the Court thinks fit and any
such order shall, notwithstanding sub-section (1), have effect on and
from such date (not being a date earlier than the date on which the order
was made) as is specified in the order.
4. Where, under the rules of an association, a person who is a member
of the association is subject to a restraint of trade, the association shall,
for the purposes of subsection (3), be deemed to have created or joined
in creating the restraint.

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5. An order under subsection (3) does not affect any right (including any
right to damages) accrued before the date the order takes effect.
As a consequence of section 4(1), a restraint of trade clause may be read down and
enforced by a court in circumstances where it would not be possible to sever all or part
of the offending restraint at common law.xix Basically, this doctrine seems to imply that
if there is any trade activity that is deemed to be detrimental or opposed to public policy,
it shall be automatically restrained. And the doctrine of severability shall apply to such
context so as to separate that portion of the legislation which is valid, from that part
which is invalid ab initio.
Malaysia
The Doctrine of Severability has stretched its wings all the way up to the far corners
of the Eastern world; from India to Malaysia. This doctrine was invoked by the Court
in the landmark case of Malaysian Bar & Anr. V. Government of Malaysia (1987). In
this case, the contention raised by the appellants was that under S. 46(a)(1), Paragraph
A, the contents of such Section denied the lawyers representation in the Bar Council of
Malaysia. The concerned High Court of Judicature through HARUN J. held that
paragraph (A) of Section 46(A)1 was deemed as not being unconstitutional. The Justice
based his reasoning on the sound principle that because the provisions disqualifyin g a
lawyer from practicing in the Bar without no less than seven years practice was of a
valid nature, the statute itself ought to be declared “constitutional.” Also, the High
Court held that if any statutes are passed by the legislative body, then they would always
not be applicable to anybody and everybody—“all persons” In doing so, the Court
based its reasoning on the sound ratio decidendi as laid out in “Lindsley v. National
Carbonic Gas Co.”xx on three grounds:
 The equal protection clause of the 14th Amendment does not take from the
state the power to classify in the adoption of police laws, but admits of the
exercise of a wide scope of discretion in that regard, and avoids what is done
only when it is without any reasonable basis, and therefore is pure ly
arbitrary

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 A Classification having some reasonable basis does not offend against that
clause merely because it is not made with mathematical nicety or because
in practice it results in some inequality.
 When the classification in such a law is called in question, if any state of
facts reasonably can be conceived that would sustain it, the existence of that
state of facts at the time the law was enacted must be assumed.
 One who assails the classification in such a law must carry the burden of
showing that it does not rest upon any reasonable basis, but is essentia lly
arbitrary.
In doing so, the High Court also invoked other judicial precedents, some of them being
Datuk Haji Harun bin Idris v Public Prosecutorxxi. Additionally, the Fourteenth
Amendment to the American Constitution- “Right to due process of the law” princip le
was invoked on the grounds that originally it was originally applicable to the Negroes,
but now was applicable to all Americans irrespective of class, creed, or color. These
were principles later on invoked in cases such as “Korematsu v. US” (1943), “Graham
vs Richardson”(1981) and countless others that bespoke volumes of the applicabilit y
of the Doctrine of Severability in declaring legislation relating to segregation(as in the
Korematsu case) and on nationality (as in the Richardson case)
India
The doctrine of severability is an important aspect of understanding the import of
Art. 13 of our Constitution. Any resort to this doctrine can be had when it becomes
apparent that a part of any law offends the constitution. In the context of Indian
Constitution, it is the part dealing with fundamental rights that is the determining factor
as to when a law will be subjected to the above doctrine. DD Basu says that ‘doctrine
of severability is nothing but the common law rule of ultra vires imported in the realm
of constitutional law’xxii. Simply put, this doctrine means that if any particular
provision of the statute is unconstitutional and that provision is independent of or
severable from the rest, only the offending provision will be declared invalid by the
Court and if it is not separable, the whole of the statute shall failxxiii. However, in
Poindexter v Greenhowxxiv, the American Supreme Court held that the doctrine cannot
be applied to ‘substitute for the law intended by the Legislature one they may never
been willing, by itself, to enact’. In Pannalal Binjraj v Union of India, (1957) SCR 233,

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it was held that Art. 13 has retrospective effect. Under the Indian Constitution, Clauses
(1) and (2) of Art. 13 provide for the application of the above doctrine. Both the clauses
deal with the contravention of fundamental rights as contained in the Part III. The two
clauses provide:
1 All laws in force in the territory of India immediately before the
commencement of this Constitution, in so far as they are inconsistent with the
provisions of this Part, shall, to the extent of such inconsistency, be void.
2 The State shall not make any law, which takes away or abridges the rights
conferred by this Part and any law made in contravention of this clause shall,
to the extent of the contravention, be void.
The expression ‘laws in force’ under Art. 13(3)(b) includes ‘laws passed or made
by a legislature or other competent authority in the territory of India before the
commencement of the constitution not previously repealed. It includes customs and
usages and also the laws passed by the British Parliament and applicable to India like
the Fugitive Offenders’ Act 1881. However, it does not include constitutio na l
amendments under Art. 368. In Shankri Prasad v Union of Indiaxxv, Supreme Court
adopted a literal interpretation of the constitution, and observed that an amendme nt
under Art. 368 was enacted in the exercise of its constituent power while the term law
used under Art. 13 referred to the exercise of ordinary legislative power conferred on
the Parliament by provisions of the Constitution other than Art. 368. Therefore, it was
held that Art. 13(2) does not affect the amendments made under Art. 368. In Sajjan
Singh v State of Rajasthan,xxvi the same question that was raised in Shankri Prasad was
again raised before the Court, and the majority reiterated the conclusion of Shankri
Prasad. However, in L.C. Golaknath v State of Punjabxxvii the majority (6:5) held that
an amendment made under Art. 368 is a law, and is subject to Art. 13. Thus, the earlier
two cases, Shankri Prasad and Sajjan Singh, were overruled. The Constitution (Twenty
Fourth Amendment) Act, 1971 inserted the Clause (4) which provided that ‘Nothing in
this Art. shall apply to any amendment of this Constitution made under Art. 368.’ The
Supreme Court in Kesavananda Bharati v State of Keralaxxviii 77 upheld the
Constitutionality of the above amendment. Therefore it is settled that ‘law’ under Art.
13 excludes an amendment of the Constitution made under Art. 368.The doctrine
simply implies that where only a part of the offending law is inconsistent with or
contravenes the fundamental rights, it is that part only that shall be declared to be void,

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and not the entire law. And the voidness is circumscribed by the expressions ‘to the
extent of the contravention’ and ‘to the extent of such inconsistency’. That is, the
application of the doctrine separates the invalid part of the law from the valid part. The
resultant implication is that the valid part of the law continues to be law while that part
of it which offends the constitution ceases to have the content of law. It no longer
remains a law. H M Seervai observesxxix:
When a law is impugned as violating constitutional limitations, it may
be possible to save the law by applying the principle of severabilit y.
There are two types of severability … the provision violating the
Constitutional limitations may be distinct and severable, and the Court
would uphold the rest of the Act by severing such distinct provisions
and declaring them void. But the impugned law may be one and
inseverable; so that no specific provision of the Act could be declared to
void. In such circumstances, the doctrine of severability in application
or enforcement would apply. When the provisions of the impugned law
are so interwoven that they are not severable, then the entire law, say the
Act, is ultra vires.
The Privy Council in Initiative and Referendum Acts, observedxxx:
A particular section of an Act may not be an isolated and independent
clause, and may form part of one connected indissoluble scheme for the
attainment of a definite object; in which case it would have to be
considered as an inseparable part of the whole. A law which is ultra vires
in part only may thereby become ultra vires in the whole, if the object
of the Act cannot at all be attained by excluding the bad part.
In AK Gopalan v State of Madrasxxxi, S. 14 of the Prevention Detention Act 1950
was declared to be ultra vires by the Supreme Court. The Court observed that ‘the
impugned Act minus this Section can remain unaffected. The omission of this section
will not change the nature of the structure of the legislation. Therefore, the decision that
Section 14 is ultra vires does not affect the validity of the rest of the Act.’ However,
the court has no jurisdiction to redraft the legislation. The court cannot sever one single
provision which covers valid as well as invalid subjects in order to save some portion
of it. In RMDC v Union of Indiaxxxii the Prize Competition Act 1955 was challenged on

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the ground of violation of the fundamental rights of the petitioners as secured under
Art. 19(1)(g) the court held that the provision of the Act were severable. It observed, as
has been previously discussed, that when a statute was in part void, it would be enforced
as regards the rest, if that was severable from what was invalidxxxiii. Separability is a
question of substance, not of form. Hence, while the substance is to be determined from
the provisions of the statute as a whole, it will also be legitimate to take into account
the history of the legislation and its object, apart from its enacting provisions, title, and
preamblexxxiv. According to Art. 13(1)(a) the term law includes ‘any ordinance, order,
bye-law, rule, regulation, notification, custom or usage having the force of Law.
However, it was held that personal law such as Hindu Law or Muslim law are not
covered by the term ‘law’ under Art. 13xxxv.
Doctrine of Eclipse: In the case of Keshavan Madhava Menon v. The State of
Bombayxxxvi, the law in question was an existing law at the time when the Constitut ion
came into force. That existing law imposed on the exercise of the right guaranteed to
the citizens of India by Art. 19(1)(g) restrictions which could not be justified as
reasonable under clause (6) as it then stood and consequently under Art. 13(1)xxxvii that
existing law became void “to the extent of such inconsistency”. The Court said that the
law became void not in toto or for all purposes or for all times or for all persons but
only “to the extent of such inconsistency”, that is to say, to the extent it became
inconsistent with the provisions of Part III which conferred the fundamental rights on
the citizens. Mahajan, C J observed that:
…the part of the section of an existing law which is unconstitutional is
not law, and is null and void. For determining the rights and obligat ions
of citizens the part declared void should be notionally taken to be
obliterated from the section for all intents and purposes, though for the
determination of the rights and obligations incurred prior to 26 January
1950, and also for the determination of rights of persons who have not
been given fundamental rights by the constitution.
This reasoning was also adopted in the case of Bhikaji Narain Dhakras and
Others v. The State Of Madhya Pradesh and Anotherxxxviii. This case also held that “on
and after the commencement of the Constitution, the existing law, as a result of its
becoming inconsistent with the provisions of Art. 19(1)(g) read with clause (6) as it
then stood, could not be permitted to stand in the way of the exercise of that

16
fundamental right. Art. 13(1) by reason of its language cannot be read as having
obliterated the entire operation of the inconsistent law or having wiped it out altogether
from the statute book. Such law existed for all past transactions and for enforcement of
rights and liabilities accrued before the date of the Constitution. The law continued in
force, even after the commencement of the Constitution, with respect to persons who
were not citizens and could not claim the fundamental right ”. The court also said that
Art. 13(1) had the effect of nullifying or rendering the existing law which had become
inconsistent with fundamental right as it then stood, ineffectual, nugatory and devoid
of any legal force or binding effect, only with respect to the exercise of the fundamenta l
right on and after the date of the commencement of the Constitution. Finally the court
said something that we today know of as the crux of Doctrine of Eclipse. “The true
position is that the impugned law became, as it were, eclipsed, for the time being, by
the fundamental right. “We see that such laws are not dead for all purposes. They exist
for the purposes of pre-Constitution rights and liabilities and they remain operative,
even after the commencement of the Constitution, as against non-citizens. It is only as
against the citizens that they remain in a dormant or moribund condition. Thus the
Doctrine of Eclipse provides for the validation of Pre-Constitution Laws that violate
fundamental rights upon the premise that such laws are not null and void ab initio but
become unenforceable only to the extent of such inconsistency with the fundamenta l
rights. If any subsequent amendment to the Constitution removes the inconsistency or
the conflict of the existing law with the fundamental rights, then the Eclipse vanishes
and that particular law again becomes active again. However, H M Seervai pertinently
observed that:xxxix
It is difficult to understand what is meant by “notionally …obliterated ”
from the section. …it is submitted that there is no scope for an
unconstitutional provision being “notionally …obliterated”. The theory
of eclipse…is quite inconsistent with any obliteration, actual or notional.
Rival opinions abound as to the application of doctrine of eclipse to pre‐ and post-constitutional
law. The implications of different opinions are profound and have a far
reaching impact on the nature of law as provided under Art. 13 of the Constitution. It
is the general view that doctrine of eclipse applies only to the pre‐constitutional laws,
and not to the post‐constitutional laws. In Deep Chand v State of UPxl,the Court held
“...[T]he doctrine of eclipse can be invoked only in the case of law valid when made,

17
but a shadow is cast on it by supervening constitutional inconsistency. In Mahendralal
Jaini v State,xli the Court observed:
The doctrine of eclipse will apply to pre‐Constitutional laws which are
governed by Art. 13(1) and would not apply to post‐Constitutional laws
which are governed by Art. 13(2). Unlike a law governed by Art.13 (1)
which was valid when made, the law made in contravention of the
prohibition contained in Art. 13(2) is a stillborn law either wholly or
partially depending upon the extent of the contravention. Such law is
dead from the beginning and there can be no question of its revival under
the doctrine of eclipse… [which]…cannot confer power on the state to
enact a law in breach of Art. 13(2) which would be the effect of the
application of the doctrine of eclipse to post‐constitutional laws.
However, interestingly in Bhikaji in which the Supreme Court enunciated the doctrine
of eclipse, Das ACJ made the following observation that tells a different story:
All laws, existing or future, which are inconsistent with the provisions
of Part III or our Constitution, are, by the express provision of Art. 13,
rendered void ‘to the extent of such inconsistency’. Such laws were not
dead for all purposes. They existed for the purpose of pre‐Constitut ion
rights and liabilities and they remained operative, even after the
Constitution, as against non‐citizens. It is only as against the citize ns
that they remained in a dormant or a moribund condition.
It is clearly inferable that the above dictum did not make any distinction between pre-and
post‐Constitutional laws. H M Seervai has commented that ‘It is clear that these
observations are not restricted to Art 13 (1), which deals with the pre‐Constitutional
laws, but also to Art 13(2), which deals with post‐Constitutional laws, because the
Court did not rest its decision on the distinction made in American decisions between
pre‐Constitution and post‐Constitution laws.’ The following submission of Seervai’sxlii
therefore is convincing:
…[T]he theory of eclipse is based on the premise that a law which
violates fundamental rights is not a nullity or void ab initio, but remains
unenforceable(that is, in a moribund condition); and secondly, it

18
implicitly recognizes the distinction between a law void for legislat ive
competence and a law void for violating fundamental rights.
DD Basu is of the view that as far as post‐constitutional laws are concerned, the doctrine
of eclipse is not applicablexliii. The same view is also shared by MP Jainxliv.
Be that as it may, in the State of Gujarat v Shri Ambica Mills,xlv though the
doctrine of eclipse was not an issue, the Court through its decision made it clear that
the doctrine applied to both pre‐constitutional as well as post‐constitutional laws.
Mathew J observed that ‘…any statement that a law which takes away or abridges
fundamental rights conferred under Part III is still born or null or void requires
qualification in certain situations. Although the general rule is that a statute declared
unconstitutional is void at all times and that its invalidity must be recognized and
acknowledged for all purposes and is no law and nullity, this neither universal nor
absolutely true, and there are many exceptions to it.’ It is submitted that the view which
holds that ‘void’ under Art. 13(2) can only be void against persons whose fundamenta l
rights are taken away or abridged by law, seems reasonable and convincing. The law
might be ‘still born’ so far as the persons, entities or denominations whose fundamenta l
rights are taken away or abridged but there is no reason why the law should be void or
still born as against those who have no such rightsxlvi. Mathew J in Ambica Mills makes
a valid point when he reasonsxlvii:
…[T]he real reason why it (pre‐constitutional law) remains operative as
against non‐citizens is that it is void only to the extent of its
inconsistency with the rights conferred under Art. 19 and that its
voidness is, therefore, confined to citizens, as, ex hypothesi, the law
became inconsistent with their fundamental rights alone. If that be so,
we see no reason why a post‐constitutional law which takes away or
abridges the rights conferred by Art. 19 should not be operative in
regard to the non‐citizens as it void only to the extent of the
contravention of the rights conferred on citizens, namely, those under
Art. 19.
In Romesh Thapar v. State of Madras, SC held that only if the unconstitutiona l
portions cannot be removed then the whole act will be utra vires and thus
unconstitutional. The doctrine was applied in DS Nakara v. Union of India, where the

19
Act remained valid while the invalid portion of it was declared invalid because it was
severable from the rest of the Act. In State of Bombay v. F.N. Balsaraxlviii, it was held
that the provisions of the Bombay Prohibition Act, 1949 which were declared as void
did not affect the validity of the entire Act and therefore there was no necessity for
declaring the entire statute as invalid. In the case of Kihoto Hollohan vs Zachillhu And
Othersxlix, it was said that the doctrine of severability envisages that if it is possible to
construe a statute so that its validity can be sustained against a constitutional attack it
should be so construed and that when part of a statute is valid and part is void, the valid
part must be separated from the invalid part. In the case of D.S. Nakara & Others v.
Union of Indial, the court said that whenever a classification is held to be impermiss ible
and the measure can be retained by removing the unconstitutional portion of
classification or by striking down words of limitation, the resultant effect may be of
enlarging the class. In such a situation, the Court can strike down the words of limita t ion
in an enactment. That is what is called reading down the measure.
The doctrine of severability has been elaborately considered by the Supreme Court
in RMDC v. Union of Indiali, and the following rules regarding the question of
severability has been laid downlii :
1. The intention of the legislature is the determining factor in determining
whether the valid part of a statute are severable from the invalid parts.
2. If the valid and invalid provisions are so inextricably mixed up that they
cannot be separated from another, then the invalidity of a portion must result
in the invalidity of the Act in its entirety. On the other hand, if they are so
distinct and separate that after striking out what is invalid what remains is
itself a complete code independent of the rest, then it will be upheld
notwithstanding that the rest had become unenforceable.
3. Even when the provisions which are valid, are distinct and separate from
those which are invalid if they form part of a single scheme which is
intended to be operative as a whole, then also the invalidity of a part will
result in the failure of the whole.
4. Likewise when the valid and invalid parts of a Statute are independent and
do not form part of a Scheme but what is left after omitting the invalid
portion is so thin and truncated as to be in substance different from what it

20
was when it emerged out of legislature, then also it will be rejected in its
entirety.
5. The severability of the valid and invalid provisions of a Statute does not
depend on whether provisions are enacted in same section or differe nt
section, it is not the form but the substance of the matter that is material and
that has to be ascertained on an examination of the Act as a whole and of
the setting of the relevant provisions therein.
6. If after the invalid portion is expunged from the Statute what remains cannot
be enforced without making alterations and modifications therein, then the
whole of it must be struck down as void as otherwise it will amount to
judicial legislation.
7. In determining the legislative intent on the question of severability, it will
be legitimate to take into account the history of legislation, its object, the
title and preamble of it
R.M.D. Chamarbaugwalla v. The Union of India (UOI)liii is considered to be one of
the most important cases on the Doctrine of Severability. In this case, the court observed
that:
The doctrine of severability rests, as will presently be shown, on a
presumed intention of the legislature that if a part of a statute turns out
to be void that should not affect the validity of the rest of it, and that that
intention is to be ascertained from the terms of the statute. It is the true
nature of the subject-matter of the legislation that is the determining
factor, and while a classification made in the statute might go far to
support a conclusion in favor of severability, the absence of it does not
necessarily preclude it.
The court further said that:
When a statute is in part void, it will be enforced as regards the rest, if
that is severable from what is invalid. Another significant canon of
determination of constitutionality is that the Courts would be reluctant
to declare a law invalid or ultra vires on account of unconstitutionalit y.
The Courts would accept an interpretation, which would be in favor of
constitutionality rather than the one which would render the law

21
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.
Notwithstanding the provisions of Art. 13, cases have come before courts
challenging features of non-codified law, particularly as they related to personal law
and custom. The courts have adopted an equivocal approach. The approach of the court
has been to hold that personal laws not compatible with fundamental rights; to deny
that personal laws fall within the sweep of Art. 13, and therefore, these laws cannot be
challenged on the ground of violating fundamental rights. Gajendragadkar, J in State of
Bombay v Narasu Appu Mali observed:
…[T]he framers of the Constitution wanted to leave the personal laws
outside the ambit of Part III of the Constitution (viz, Fundamenta l
rights). They must have been aware that these personal laws needed to
be reformed in many material particulars and in fact they wanted to
abolish these different personal laws and to evolve one common code.
Yet they did not wish that the provisions of personal laws should be
challenged by reason of the Fundamental Rights…and so they did not
intend to include these personal laws within the definition of the
expression “laws in force”.
In Collector of Madura v Moottoo Ramalingaliv it was stressed by the court that:
‘Under the Hindu system of law, clear proof of usage will outweigh the
written text of law. It has been repeatedly stated that a custom may be in
derogation of smriti law and where proved to exist may supersede that
law. The tenacity of family customs even under the strain of migrat ion
has been repeatedly recognized in decisions of the Courts. It may,
however, be observed that though local and family custom, if proved to
exist, will supersede the general law, the general law will in other
respects govern the relations of the parties outside that custom.’
By operation of Art. 13(3)(a) of the Constitution law includes custom or usage
having the force of law. Art. 13(1) declares that the pre‐constitutional laws, so far as
they are inconsistent with the fundamental rights shall, to the extent of such

22
inconsistency, be void. The object, thereby, is to secure paramountcy of the
Constitution and give primacy to fundamental rights. Customs are pre‐constitutional
and a part of existing laws. They furnish the rules that govern the human conduct. These
are observed by classes or groups of people, and exist in every society. Constitution of
India includes ‘customs’ within the meaning of law to be applicable to Part III. Art.
13(3)(a) inter alia includes custom or usage within the meaning of law. Therefore, a
custom must yield to the fundamental rightslv. However Madhu Kishwar v State of
Biharlvi adopted a conservative approach and desisted from declaring a tribal custom as
being inconsistent with Art. 14, the reason being that to do so ‘would bring about chaos
in the existing state of law’. The decision of the court assumes importance in the light
of Supreme Court’s observation in Narasu Appu Mali case where it had observed:
…[I]t is clear that if there is any custom or usage which is in force in
India, which is inconsistent with the fundamental rights, that custom or
usage is void. “Laws in force” was separately defined in order to
emphasize the fact that even though a law may not be in operation at all
or may be in operation in particular areas, even so it should be
considered to be a law in force for the purpose of Art. 13(1)… The
Constitution has made it clear that no custom or usage having the force
of law can validly be made the basis of any law in future if such custom
or usage offends against the fundamental rights.
In Sheikriyammada Nalla Koya v Administrator, Union Territory of Laccadiveslvii, KK
Mathew J. held that customs which are immoral are opposed to public policy, can
neither be recognized nor be enforced.
Position of Author
Johann Christiaan Kriegler, a former Constitutional Court and Appeal Court
judge from South Africa has aptly summed up the Doctrine of Severability thus, “If the
good is not dependent on the bad and can be separated from it, one gives effect to the
good that remains after the separation if it still gives effect to the main objective lviii.”
Just because a limited portion of a pre-existing law adversely affects the whole post-constitutional
law does not necessarily imply that the ‘bad’ portion cannot be excised
by Courts after applying the tests of reasonability, public interest and legislative intent .
The important thing to bear in mind is the legislative intent and their accordance with

23
the public interest. While some may argue that unbridled fundamental rights are
undesirable and must be limited by the power of legislative amendment, yet Courts
have, creditably, put up major hurdles in tampering with fundamental rights that seek
to use dated laws to ensure compliance to their regimes and grant it political legitimac y.
While certain nations like Australia have built the doctrine of severability into their
Constitutions, most have relied upon common law to do so. In the ultimate analysis,
severability remains a powerful tool in the hands of the judiciary to strike a balance
between often superfluous legislative action, tradition and custom and contempor ary
needs.

24
BIBLIOGRAPHY
Books & Articles Referred
H M Seervai, Constitutional Law of India, 421(1991)
DD Basu, Commentary on the Constitution of India, Vol 1, 692 (2007)
D D Basu, Human Rights in Constitutional Law, 217(1994)
M P Jain, Indian Constitutional Law, 827(2005)
Rabindra Kumar Pathak: Untangling the Constitutional Labyrinth, Bond Law Review,
Vol. 22, Issue I, Article 3
Kenneth A. Klukowski: SEVERABILITY DOCTRINE: HOW MUCH OF A STATUTE
SHOULD FEDERAL COURTS INVALIDATE? Texas Review of Law & Politics, Vol.
16 No. 1 at 3-111
Citations
i Vol. 1 at pp. 360-361; Crawford on Statutory Construction, pp. 217-218.
ii Vol. 1 at pp. 360-361; Crawford on Statutory Construction, pp. 218-19
iii 1894 AC 535
iv United States v. Reese, 92 U.S. 214, 221 (1876)
v Trade-Mark Cases, 100 U.S. 82, 98−99 (1879)
vi Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 565 (1902)
vii Champlin Ref. Co. v. Corp. Comm’n of Okla., 286 U.S. 210, 234 (1932) (“The
unconstitutionality of a part of an act does not necessarily defeat or affect the validit y
of its remaining provisions. Unless it is evident that the Legislature would not have
enacted those provisions which are within its power, independently of that which is not,
the invalid part may be dropped if what is left is fully operative as a law.”)
viii 480 U.S. at 685
ix546 U.S. 320, 329−30 (2006)
x 546 US 440 2006
xi 130 S. Ct. 3138 (2010)
xiixii OPC, Federal Govt. of Australia: Drafting Direction 3.1 extracted from
www.opc.gov.au/about/docs/drafting_series/DD3.1.pdf on Sep 14, 2014
xiii Pidoto v. Victoria (1943) 68 CLR 87 at 108-110 and Strickland v. Rocla Concrete
Pipes Ltd (1971) 124 CLR 468.
xiv Dixon J. in The King v. Poole; Ex Parte Henry (No. 2) (1939) 61 CLR 634 at 652
xv Adamson v New South Wales Rugby League Ltd (1991) 31 FCR 242
xvi Vancouver Malt and Sake Brewing v Vancouver Breweries [1934] AC 181
xvii (1991) 31 FCR 242
xviii Lloyd’s Ships Holdings Pty Ltd v Davros Pty Ltd (1987) 17 FCR 505
xix www.comlaw.gov.au/Details/.../8fdea997-4e6d-4737-809c-8f53435eef75
xx 1911 220 US 61, 76-79, 55 L Ed 369

25
xxi[1977] 2 MLJ 155, 165-166
xxii D D Basu, Human Rights in Constitutional Law, 217(1994).
xxiii Pollock v Farmers’ Loan & Trust Co, (1895) 158 US 635; Lynch v US, (1933)292
US 571. In El Paso R Co v Gutierrez, (1909) 215 US, 87, it was held that if the Court
finds that an offending portion of the statute to be severable, it will be the duty of the
Court to declare only the offending part invalid and maintain the rest of the statute.
xxiv (1885)114 US 270
xxv AIR 1951 SC 458
xxvi AIR 1965 SC 845
xxvii AIR 1965 SC 845
xxviiiAIR 1973 SC 1461
xxix H M Seervai, Constitutional Law of India, 421(1991).
xxxAIR 1919 P C 145
xxxi (1950) SCJ 174
xxxii (1950) SCJ 174
xxxiii Punjab Province v Daulat, (1942) FCR 1; Chintaman Rao v State of Madhya
Pradesh, (1950) SCR 759 ; State of Bombay v F N Balsara, (1951) SCR 682. State of
Bihar v Kameshwar Prasad, AIR 1952 SCR 889 ; Harakcahand v Union of India AIR
1970 SC 1453 at 1468
xxxiv RMDC v Union of India, (1957) SCR 930. Also see, Kihoto Hollohan v Zachilhu,
AIR 1993 SC412.
xxxv(State of Bombay v. Narayan, AIR 1952 Bom.84)
xxxvi [1961] S.C.R. 288
xxxvii Art. 13 (1) – All laws in force in the territory of India immediately before the
commencement of this Constitution, in so far as they are inconsistent with the
provisions of this Part, shall, to the extent of such inconsistency, be void.
xxxviii AIR 1955 SC 781
xxxix Supra note xv at 411
xl AIR 1959 SC 648
xli AIR 1963 SC 1019
xlii Seervai op cit at 413. Das ACJ in Bhikaji observed that ‘The American authorit ies
refer only to post‐constitutional laws which were inconsistent with the provisions of the
constitution….The American authorities, therefore, cannot fully apply to pre‐constitutional
laws which we were perfectly valid before the Constitution….it must be
held that these American authorities can have no application to our Constitution.’
xliii DD Basu, Commentary on the Constitution of India, Vol 1, 692 (2007)
xliv M P Jain, Indian Constitutional Law, 827(2005)
xlv AIR 1974 SC 1300
xlvi Cf Jain op cit at 849
xlvii Ibid. Para 43
xlviii A.I.R.l.951 S.C. 318
xlix 1992 SCR (1) 686.
l AIR 1983 SC 130
li AIR 1957 SC 628

26
lii Legal Service India: Doctrine of Severability extracted from
http://legalservices.co.in/blogs/entry/Doctrine-of-Severability on Aug 1, 2014
liii AIR 1957 SC 628
livliv Youth Welfare Federation Rep by Its Chairman, K.J Prasad v Union of India, 1996
(4) ALT 1138.
lv Dashratha Rama Rao v State of A.P, AIR 1961 SC 564
lvi AIR 1996 SC1864
lvii AIR 1967 Kerala 259
lviii Extracted from http://www.goodreads.com/author/show/6863329.Johann_Kriegler
on Sep 14, 2014

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