Constitutional Law: Doctrine of Severability

The Doctrine of Severability or Separability is a part of Article 13(2) which says that the State will not be allowed to make any law that is Unconstitutional and violative of the Fundamental Rights of the Citizen. Article 13(2) says that:-

“ 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.” 

Now there are two dimensions to this doctrine. One is laws that were made before the formation of the Constitution and the other, are the laws that are made after the Formation of the Constitution. When we speak about pre-constitutional laws, when checked for constitutional validity, the laws that are in proportion and in accordance with the newly formed fundamental rights will be considered to be valid and legal, whereas the laws that are inconsistent with the fundamental rights will be considered to be invalid. 

Now, when a statute or an act is checked for Constitutional validity, there are bound to be parts of an act that are not following the fundamental rights, then the unconstitutional part of the act alone will be removed, which leaves the rest of the act completely valid and functional. When a piece of legislation is found unconstitutional, the unconstitutional component is eliminated, and the remainder of the statute remains legal. The objective is to keep the Act or law in effect by merely removing or rejecting the invalid portions and keeping the rest. However, an invalid section of the law will only be separated if it is severable, that is, if after separating the invalid part, the valid part is capable of carrying out the legislature’s aim, otherwise the entire legislation would be declared invalid. 

In the case of A.K. Gopalan v. State of Madras, it was observed that Section 14 of the Preventive Detention Act, 1950 was abrogative of the Fundamental Rights of the Constitution. Applying the Doctrine of Severability, the Court held that the whole Act except Section 14 was considered valid.

In another case of  State of Bombay v. F.N. Balsara, it was pointed out that the provisions of the Bombay Prohibition Act, 1949 that have been ruled illegal and unconstitutional do not affect the entire legislation, hence the Court held that there is no need to declare the entire statute as an invalid Act.

In R.M.D.C. v. Union of India, the Supreme Court concluded that if the entire Code remains after the unconstitutional provision is removed, there is no need to declare the entire Act illegal. In such circumstances, the legislature’s purpose is the decisive element in establishing whether the legal sections of the legislation can be separated from the invalid.

When we talk about the Post Constitutional Laws, Laws enacted after the Constituent Assembly adopted the Constitution must be consistent with the Fundamental Rights; otherwise, the laws and modifications would be ruled void-ab-initio (void from the beginning). Such a law would be held unconstitutional.



Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.


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