DOCTRINE OF SEVERABILITY

Introduction
Doctrine of Severability.-When a part of the statute is declared unconstitutional then
a question arises whether the whole of the statute is to be declared void or only that
part which is unconstitutional should be declared as such. To resolve this problem,
the Supreme Court has devised the doctrine of severability or separability. This
doctrine means that if an offending provision can be separated from that which is
constitutional then only that part which is offending is to be declared as void and
not the entire statute. Article 13 of the Constitution uses the words “to the extent of
such inconsistency be void” which means that when some provision 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 statute.


Landmark Case Laws
In A. K. Gopalan v. State of Madras, the Supreme Court while declaring Section
14 of the Preventive Detention Act, 1950, as ultra vires, observed that the impugned
Act minus this section can remain unaffected. The omission of the section will not
change the nature or the structure of the subject of the legislation. Therefore, the
decision that Section 14 is ultra vires does not affect the validity of the rest of the
Act.


In the case of State of Bombay v. Balsara, a case under Bombay Prohibition Act,
1949, it was observed that the provisions which have been declared as void do not
affect the entire statute, therefore, there is no necessity for declaring the statute as
invalid.


Exception
If the valid portion is so closely mixed up with invalid portion that it cannot be
separated without leaving an incomplete or more or less mingled remainder, then
the courts will hold the entire Act, void. The primary test is whether what remains is
so inextricably mixed with the part declared invalid that what remains cannot
survive independently.


In the case of Romesh Thappar v. State of Madras Supreme Court observed that
Where a law purports to authorise the imposition of restrictions on a Fundamental
Right in language wide enough to cover restrictions, both within and without the
limits provided by the Constitution and where it is not possible to separate the two.
the whole law is to be struck down. So long as the possibility of its being applied
for purposes not sanctioned by the Constitution cannot be ruled out, it must be held
to be wholly void.


The doctrine of severability was elaborately considered in R.M.D.C. v. Union of
India
in that case Section 2 (d) of the Prize Competition Act, which was broad
enough to include competitions of a gambling nature as well as competitions
involving skill, was involved. The Supreme Court held that the provisions of the
Act were severable and struck down those provisions which related to competition
not involving skill. The Court held that where after removing the invalid provision
what remains constitutes a complete Code there is no necessity to declare the whole
Act invalid. In such cases, whether the valid parts of a statute are separable from the
invalid, the intention of the Legislature is the determining factor. The test to be
applied is whether the Legislature would have enacted the valid part if it had known
that the rest of the statute was invalid. But if what remains on the statute book
cannot be enforced without making alteration the whole Act should be declared as
void.

Severability is the question of substance and not of form, and in determining the
intention of the Legislature it is legitimate to take into account the history of the
legislation and the object as well as the title and Preamble.


Severability in Taxation Laws
In taxation laws where taxes are imposed on subjects which are divisible in nature
and some of the subjects are exempt from taxation the taxation statute will not be
wholly void. It can be declared void only with regard to those subjects to which a
constitutional exemption is attracted.


In Kihot Hollohan v. Zachillhu, it has been held that the Tenth Schedule minus
para 7 remains valid and constitutional. Para 7 which has been declared
unconstitutional is severable from the main provisions of the Tenth Schedule. The
remaining provisions of the Tenth Schedule stand independent of Para 7 and are
complete in themselves and workable. 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.
Whether One Could Challenge the Constitutionality of a Law
One can challenge the constitutionality of law but only if our rights are directly affected by
a law. Then only we can question the constitutionality of the law. It follows in such waysWhen a person is outside the class that might be injured by the statute then he has no right
to complain. Then where a statute affects bona vacantia, then there is no person who is
competent to challenge the validity of such statute. Again, where the statute operates as a
contract, either party to the contract is entitled to challenge the validity of the statute.

References

1- Constitutional Law of India by J.N. Pandey

2- Constitutional Law Bare Act

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