Presentation on Doctrine of Severability
17 likes8,798 views
The document discusses the doctrine of severability, which refers to separating the valid parts of a statute from any invalid or unconstitutional parts. It provides the Latin and legal definitions of severability. Constitutionally, severability means that if an inappropriate part of a statute can be separated from the valid constitutional parts, then only the inappropriate part will be declared void, not the entire statute. The document then discusses the doctrine of severability in the common law origins of several countries, including key cases. It outlines tests that courts use to determine whether severability applies and whether the valid and invalid parts of a statute can be separated.
Presentation on Doctrine of Severability
- 1. DOCTRINE OF SEVERABILITY KUNAL BASU
- 2. WHAT DOES SEVERABILITY MEAN? Latin Origin: Salvatorious estrange, separate, isolate or segregate Legal dictionaries: “...that which is capable of being separated from other things to which it is joined and maintaining nonetheless a complete and independent existence.”
- 3. WHAT DOES SEVERABILITY MEAN? CONSTITUTIONAL MEANING If an offending and inappropriate provision of statutory legislation can be separated from that portion of the 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.
- 4. COURTS ON SEVERABILITY Common Law
- 5. DOCTRINE OF SEVERABILITY IN THE Originates in the UcKase of Nordfelt v. Maxim Nordfelt Guns and Ammunition Company Ltd(1894) Principle of restrictive trade practices utilized as against the concept of fair competition First recorded case in English history ever known to apply this judicial doctrine to a case
- 6. DOCTRINE OF SEVERABILITY IN USA Applied in the case of United States v. Reese(1876) & Reiterated in Champlin Refining Co. v. Corp. Comm. of Oklahoma(1932) The concept of successful separation of the void & statutory legislation from the invalid part without causing the latter(void statute)from being dependent on the former(valid statute) Ayotte v. Planned Parenthood of N. New Eng: The court laid down three principles of severability, “first, we try not to nullify 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.”
- 7. DOCTRINE OF SEVERABILITY IN AUSTRALIA Doctrine written into law under S. 15A of the Acts Interpretation Act 1901 limits jurisdiction of courts Limitation-I: 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 Parliament indicates which supporting heads of legislative power it is relying on Limitation-II: A provision of general application will not be read down unless Parliament indicates an intention that the provision is to have a distributive operation Test of reasonability such as restriction(s) on trade
- 8. DOCTRINE OF SEVERABILITY IN INDIA-I 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. Art. 13(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. 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 including customs and usages and also the laws passed by the British Parliament and applicable to India like the Fugitive Offenders’ Act 1881.
- 9. DOCTRINE OF SEVERABILITY IN INDIA-II RMDC V. UNION OF INDIA Intention of the legislature will determine whether the valid part of a statute is severable from the invalid parts 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.
- 10. DOCTRINE OF SEVERABILITY IN INDIA-III R.M.D. Chamarbaugwalla v. The Union of India 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 favor of constitutionality rather than the one which would 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.
- 11. COURTS’ TEST ON SEVERABILITY USA UK Australia Malaysia India
- 12. SOME IMPORTANT CASES CITED Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Company Ltd United States v. Reese Champlin Refining Co. v. Corp. Commission of Oklahoma Ayotte v. Planned Parenthood of N. New Eng. Cardegna. V Buckeye Check Cashing Free Enterprise Fund v. Public Co. Accounting Oversight Board The King v. Poole; Ex Parte Henry Adamson v New South Wales Rugby League Ltd Lloyd’s Ships Holdings Pty Ltd v Davros Pty Ltd Malaysian Bar & Anr. V. Government of Malaysia Datuk Haji Harun bin Idris v Public Prosecutor Poindexter v Greenhow Pannalal Binjraj v Union of India Shankri Prasad v Union of Ind Sajjan Singh v State of Rajasthan L.C. Golaknath v State of Punjab Kesavananda Bharati v State of Kerala AK Gopalan v State of Madras RMDC v Union of India Keshavan Madhava Menon v. The State of Bombay Bhikaji Narain Dhakras and Others v. The State Of Madhya Deep Chand v State of UP Pradesh and Anr Mahendralal Jaini v State State of Gujarat v Shri Ambica Mills Romesh Thapar v. State of Madras DS Nakara v. Union of India State of Bombay v. F.N. Balsara R.M.D. Chamarbaugwalla v. The Union of India
- 13. THANK YOU Johann Christiaan Kriegler* 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 * Former Constitutional Court and Appeal Court judge from South Africa
Editor's Notes
- #6: 1 1894 AC 535
- #7: 2 United States vs. Reese (1876) 3. Champlin Refining Co. vs. Corporation Commission of Oklahoma(1932)
- #8: 2 United States vs. Reese (1876) 3. Champlin Refining Co. vs. Corporation Commission of Oklahoma(1932)
- #9: 2 United States vs. Reese (1876) 3. Champlin Refining Co. vs. Corporation Commission of Oklahoma(1932)
- #10: 2 United States vs. Reese (1876) 3. Champlin Refining Co. vs. Corporation Commission of Oklahoma(1932)
- #11: 2 United States vs. Reese (1876) 3. Champlin Refining Co. vs. Corporation Commission of Oklahoma(1932)