Applicability of doctrine of severability under Article 13 (1) of the Constitution of India

 Doctrine of Severability states that when a part of the statute is declared unconstitutional, only the unconstitutional part is to be removed and the remaining valid part will continue to valid. The objective is to retain the Act or legislation in force by removing only the void portion and retaining the rest.

The doctrine of severability rests 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.

It is a feature usual in latter day legislation in America to enact a clause that the invalidity of any part of the law shall not render the rest of it void, and it has been held that such a clause furnishes only prima facie evidence of severability, which must in the last resort be decided on an examination of the provisions of the statute.

In Superintendent, Central Jail v. Ram Manohar Lohia, 1960 SCR (2) 821 Supreme Court said that the doctrine of severability vis-a-vis the fundamental rights is sought to be supported on the basis of the wording of Article 13 (1) of the Constitution.

Under that Article laws, in so far as they are inconsistent with the provisions of Part III, ire void only to the extent of such inconsistency. But this implies that consistent and inconsistent parts of a law are severable.

After a review of the law on the doctrine of severability Venkatarama Ayyar, J. summarised the principles governing the said doctrine in R.M.D. Chamarbaugwalla v. Union of India, 1957 SCR 930 at pages 950-952 thus:

1. In determining whether the valid parts of a statute are separable from the invalid parts thereof it is the intention of the legislature that 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. Vide Corpus Juris Secundum, Vol. 82, P 156; Sutherland on Statutory Construction Vol. 2 PP. 176-177.

2. 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. 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. Vide Cooley’s constitutional Limitations, Vol. 1 at PP. 360-361; Crawford on Statutory Construction, PP. 217-218.

3. 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. Vide Crawford on Statutory Construction, PP. 218-219.

4. Likewise, when the valid and invalid parts of a statute are independent and do not form part of a scheme but what is left after omitting the invalid portion is so then and truncated as to be in substance different from what it was when it emerged out of the legislature, then also it will be rejected in its entirety.

5. The separability of the valid and invalid provisions of a statute does not depend on whether the law is enacted in the same section or different sections; (Vide Cooley’s Constitutional Limitations, Vol. I, PP. 361-362); it is not the form, but the substance of the matter that is material, and that has to be ascertained on an examination of the Act as a whole and of the sating of the relevant provisions therein.

6. If after the invalid portion is expunged from the statute what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be struck down as void, as otherwise it will amount to judicial legislation. Vide Sutherland on Statutory Construction, Vol. 2, p. 194.

7. In determining the legislative intent on the question of separability, it will be legitimate to take into account the history of the legislation, its object, the title and the preamble to it. Vide Sutherland on Statutory Construction, Vol. 2, PP. 177-178.

Supreme Court of India in Kihota Hollohon v. Zachilhu and others, AIR 1993 SC 412 said that the Doctrine of Severability applies in a case where an otherwise validly enacted legislation contains a provision suffering from a defect of lack of legislative competence and the invalid provision is severable leaving the remaining valid provisions a viable whole.

This doctrine has no application where the legislation is not validly enacted due to non-compliance of the mandatory legislative procedure such as the mandatory special procedure prescribed for exercise of the constituent power.

It is not possible to infuse life in a still born by any miracle of deft surgery even though it may be possible to continue life by removing a congenitally defective part by surgical skill.

Even the highest degree of surgical skill can help only to continue life but it cannot infuse life in the case of still birth.