Doctrine of Severability | Article 13
DOCTRINE OF SEVERABILITY through ARTICLE 13
To understand Doctrine of Severability lets first understand Article 13 of the Constitution of India
Article 13 of the Constitution of India deals with the definition of law and what shall be included under the term ‘Law’. The said article with the passage of time deals with various ambiguities and variations. Thus eminent Jurists have evolved various doctrines so as to consider what should be made applicable as a valid law and remove the provisions that are unable to stand close scrutiny against a citizen’s rights and freedoms.
When a statute is inconsistent with any part of the Constitution or is declared unconstitutional it is to be considered whether the whole statute should be dumped or the inconsistent part only.
Court evolved this doctrine of severability with the view that if some part of a statute is inconsistent with the constitution and the remaining part is valid and workable even without that inconsistent part and that if even after the removal of that inconsistent part the object and essence of the article or the part remains the same then only the parts should be removed instead of taking down the whole statute.
A.K. GOPALAN V. STATE OF MADRAS, 1950
A. K. Gopalan was detained under Preventive Detention Act in 1949.
In 1950 the Fundamental Rights of the Citizens came into force. A. K. Gopalan challenged his detention, on the grounds that the said act is in contravention with Articles 13, 19, 21 and 22 of the Constitution and filed a Writ of Habeas Corpus under the High Court.
The High Court rejected the plea , upholding his detention.
The matter was taken to the Supreme Court, where it was held that it was not the whole act which was in contradiction with the Fundamental Rights but Section 14 of PDA, 1950 was in contraction and by the application of the Doctrine of Severability the same was removed.
KHARAK SINGH vs. STATE OF U. P., 1962
Kharak Singh was charged of the offence of Dacoity but was later acquitted due to lack of evidence.
After his acquittal the U. P. Police under Section 236 (b) of Uttar Pradesh Police Regulation Act, 1981 started hindering his privacy by tracking his mobile phone, paying domiciliary visits, following his movements, etc.
This act of the police was challenged by Kharak Singh by way of a petition under Article 32, Challenging the Constitutional Validity of Section 236 (b) of the Act as being in contravention with Article 21 of the Constitution.
The Court held the provision of domiciliary visit as being restrictive in nature and Section 236 (b) as unconstitutional and being violative of Article 21 of the Constitution, thus the article was struck down
R.M.D.C. vs. STATE OF BOMBAY (1957)
This case deals with Section 2(d) of the Prize Competition Act, 1955 which defines ‘Competitions’. The said section was challenged as being vague in its essence as it included both legal and illegal games (gambling). Further Sections 4 and 5 and Rule 11 and 12 of the Act were also challenged as being violative of Article 19(1)(g) of the Constitution.
It was observed that the concerns raised in the case were in relation to illegal games and since illegal acts do not call for any protection of fundamental rights hence it was held that no violation of fundamental rights took place.
It was further held that though, Section 2(d) was vague in its essence but could not be called as invalid.
The Court in this case went on to lay down a test for severability of laws. That is, the court laid down certain norms and criterions to check if the doctrine of Severability could be applied to a particular law or section or not and to which extent.
Test for severability
It was held that while applying the doctrine of severability by the lawyers the following points should be kept in mind by the court :
- Intention of the Legislature while framing the impugned law.
- If both valid and invalid parts of a particular section/act are intrinsically linked then both shall be removed.
- If both valid and invalid parts fall under the same scheme such that if one is removed the other becomes useless then also both will go down.
- If both valid and invalid parts do not fall under the same scheme but after the removal of the invalid part, the valid path cannot be used without any amendment, the whole law shall go down.
- If after the removal of the invalid part the purpose of the law remains the same then severability is affected.
- If after removal of invalid part nothing substantial remains in the valid section then the whole law goes down.
The court further said, in applying such doctrine the court shall ascertain the purpose, objective and intention of the Legislature and not the literal meaning of the words of the statutes. Thus, Section 2(d) was held as being vague but not invalid.
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