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| Doctrine of Severability |
Doctrine of
severability provides that if an enactment cannot be saved by construing it
consistent with its constitutionality, it may be seen whether it can be partly
saved[1].
R.M.D.
Chamarbaugwalla v. The Union of India (UOI)[2] is considered to be one of
the most important cases on the Doctrine of Severability. In this case, the
court observed that:
“The
doctrine of severability rests, as will presently be shown, on a
presumed intention of the legislature that if a part of a statute turns out to
be void, that should not affect the validity of the rest of it, and that that
intention is to be ascertained from the terms of the statute. It is the
true nature of the subject-matter of the legislation that is the determining
factor, and while a classification made in the statute might go far to support
a conclusion in favour of severability, the absence of it does not necessarily
preclude it.”
The court
further said that:
“When a
statute is in part void, it will be enforced as regards the rest, if that is
severable from what is invalid.”
In the
above-mentioned case, it was also said that:
“Another
significant canon of determination of constitutionality is that the Courts
would be reluctant to declare a law invalid or ultra vires on account of
unconstitutionality. The Courts would accept an interpretation, which would
be in favour 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.”
Following
explanations are also relevant for the purpose of understanding the Doctrine of
Severability and its application in complex legal situations.
1. Cooley's
Constitutional Limitations[3]- A. If the valid
and invalid provisions are so inextricably mixed up that they cannot be
separated from one another, then the invalidity of a portion must result in the
invalidity of the Act in its entirety.
B. On the
other hand, if they are so distinct and separate that after striking out what
is invalid, what remains is in itself a complete code independent of the rest,
then it will be upheld notwithstanding that the rest has become unenforceable.
2. Crawford
on Statutory Construction[4]- Even when the
provisions which are valid are distinct and separate from those which are
invalid, if they all form part of a single scheme which is intended to be
operative as a whole, then also the invalidity of a part will result in the
failure of the whole.
Applying the
afore-stated principles and reasoning in the case of Suresh Kumar Koushal
and another v. Naz Foundation and Others[5], the court observed that
while the High Court and the Supreme Court are empowered to review the
constitutionality of Section 377 IPC and strike it down to the extent of its
inconsistency with the Constitution, self-restraint must be exercised and the
analysis must be guided by the presumption of constitutionality.
Hence, in the
Naz Foundation Case, the court finally held that unless a clear
constitutional violation is proved, the Court is not empowered to strike down a
law merely by virtue of its falling into disuse or the perception of the
society having changed as regards the legitimacy of its purpose and its need.
There are many
important cases that have discussed about the Doctrine of Severability.
Some of them are:
1. In the case
of Kihoto Hollohan vs Zachillhu And Others[6], it was said that the
doctrine of severability envisages that if it is possible to construe a statute
so that its validity can be sustained against a constitutional attack it should
be so construed and that when part of a statute is valid and part is void, the
valid part must be separated from the invalid part.
2. Reading
Down – In the case of D.S. Nakara & Others v. Union of India[7], the court said that whenever
a classification is held to be impermissible and the measure can be retained by
removing the unconstitutional portion of classification or by striking down
words of limitation, the resultant effect may be of enlarging the class.
In such a situation, the Court can strike down the words of limitation in an
enactment. That is what is called reading down the measure.
3. The
principles of severability was also discussed in the case of A. K.
Gopalan v. State of Madras[8],
wherein the Court observed that what we have to see is, whether the omission of
the impugned portions of the Act will “change the nature or the structure or
the object of the legislation”.
Previous: Doctrine of Repugnancy and the Constitution of India
[1] State
Of U.P. & Ors vs Jai Prakash Associates Ltd., SLP (C) No. 11305 of
2013.
[2] AIR
1957 SC 628.
[3] Vol.
1 at pp. 360-361; Crawford on Statutory Construction, pp. 217-218.
[4] pp.
218-219.
[5] Civil
Appeal No. 10972 OF 2013.
[6] 1992
SCR (1) 686.
[7] AIR
1983 SC 130.
[8]
AIR 1950 SC 27.
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