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Doctrine of Severability

Doctrine of Severability

What is Doctrine of Severability?

  • The doctrine of severability means that a law is void only “to the extent of the inconsistency or contravention” with the relevant Fundamental Right according to Article 13 of the Indian Constitution.
  • According to the doctrine of severability, if there is any offending part in the statute then the only offending part is declared void and not the entire statute. The rest remains operative.
  • Under article 13, it is given that only offending part in a statute is void and not the whole.

Doctrine Summarized By Supreme Court

This doctrine has been thus summarized by the Supreme Court in the following manner:

  • If the valid and invalid provisions cannot be separated from one another then the entire act becomes invalid.
  • If the valid and invalid portions from a single scheme which is intended to be operative as a whole then the invalidity of a part results in invalidity of the whole                Doctrine of Severability
  • Where the valid and invalid parts are independent and do not form a scheme but after omitting the invalid part what is left would be entirely different from what emerged from the legislature then it is invalid in its entirety.
  • If after excluding the invalid portion what remains cannot be enforced then the whole Act becomes invalid.
  • If the invalid part is separate in its operation from the other parts then only the invalid part is so declared. The rest is severed and remains operative.
  • The effect of the application of the doctrine is that the Act is void in parts. That portion which is not void survives.                          Doctrine of Severability

Application Of The Doctrine

  • In AK Gopalan v. State of Madras, the Court found Section 14 of the Preventive Detention Act to be violative of Article 14 of the Constitution. The Court added that striking down Section 14 will not change the object of the Act and thus only the impugned provision will be struck down and not the act as a whole. A similar observation was made in DS Nakara v. Union of India.
  • In State of Bombay v. FN Balsara, it was held that the violative provisions of the Bombay Prohibition Act, 1949, do not affect the validity of the entire Act and thus there was no need to invalidate the statute altogether. The Supreme Court declared Sections 4 and 55 of the 42nd Constitutional Amendment Act invalid, for being beyond the amending powers of the Constitution but held the rest of the Act valid.
  • In Kihoto Hollohan v. Zachillu,  the Court upheld the validity of the Tenth Schedule while striking down its paragraph 7 for violating the provisions of Article 368(2).

 

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