doctrines of severability full Overview .pdf
- 1. Doctrine of Severability A Brief Overview
- 2. Meaning 1. The doctrine of severability or doctrine of separability means 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 Nordenfelt v. Maxim Nodernfelt Guns 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 severability was 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 for Doctrine of Severability which states that All laws in force in India before the commencement of Constitution shall 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 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. 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 India where section 4 of 55 of the 42nd 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. Kihoto Hollohan vs Zachillhu paragraph 7 of the tenth Schedule which was first inserted by the 52nd 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 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.