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This article has been written by ADITI SHAKYA of Institute of Law, Jiwaji University. It was written by her in due course of internship under Legal Soch Foundation.
Introduction
With the promulgation of the Indian Constitution in 1950, Part III, in the form of basic rights, became effective.
Fundamental rights are a collection of inherent rights that give each resident of this nation a life of dignity and complete growth. Any legislation that violates these rights is subject to judicial review. However, the issue arises as to what occurs when merely a piece of the challenged statute violates basic rights, in which case the theory of severability is used. The idea draws its legality from Article 13, which reads, “All laws in existence in India prior to the beginning of the Constitution will be invalid to the extent that they are inconsistent with the guarantees of basic rights.”
As an extension of Article 13, the theory holds that where a certain section of a legislation infringes or violates basic rights but is severable from the remainder of the statute, the courts will declare just that portion unconstitutional, not the whole statute.
Essentially, the theory states that if violative and non-violative provisions are separated in such a manner that the non-violative provision may exist independently of the violative provision, the non-violative provision will be regarded as legitimate and enforceable.
The Doctrine's Evolution
The Doctrine of Severability is not a new notion; it has been in the English legal system for a long time. "Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Company Ltd." was the first case to apply Severability in court. Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Co. By agreeing to sell his firm to the defendant and refraining from competing with the defendant for a term of 25 years, the plaintiff consented to sell his company to the defendant in the House of Lords.
Even though the contract's terms benefited both parties, the limitation of commerce is illegal under common law. The court found that the contract violated public policy and must be cancelled. The objective of the investigation was severability, or whether the contract's irrational clauses could be separated while remaining lawful. This was achieved by accepting the first provision, which declared that "the plaintiff will not manufacture firearms or ammunition anywhere in the globe," but allowing the plaintiff to go on business as normal.
This led to more detailed discussion of the theory of Severability in following decisions such Champlin Refining Co v Oklahoma Corporation Commission (1932) and Ayotte v Planned Parenthood of Northern New England (1894). Champlin Refinery The three connected principles are as follows: Unnecessary law is not nullified by the court. Recognizing its limited constitutional and institutional powers, the Court refrains from "rewriting state laws to comply with constitutional constraints."
The legislative goal guides all solution options. The notion of Severability was later determined to be compatible with the constitutions of several nations, including the USA, Australia, Malaysia, and India. The Indian Constitution included the finest characteristics of previous constitutions, such as the US Constitution's protection of basic rights and the UK Constitution's severability concept. The Indian Constitution's Doctrine of Severability legitimises the idea of "natural justice."
The Doctrine's Most Important Features
Expands the Jurisdiction of the Courts to Review Unconstitutional Provisions of Any Law
Severability, as defined in Article 13 of the Indian Constitution, allows for judicial review of any statute or portion thereof that is deemed to be unconstitutional or in violation of basic rights. It allows the Supreme Court and High Court to interpret statutes and to conduct reviews of pre-constitutional and current statutes using a modern legal perspective. Despite the raging debate about the validity of judicial action in constitutional concerns, judicial review has been extended in several instances to safeguard the basic rights provided by Part III of the Indian Constitution. Parliament and state legislatures are prohibited from passing legislation that might jeopardise the country's people' basic rights. If a statute is found to be partly unconstitutional, it is declared useless until amended.
The Doctrine of Severability in Contradistinction to the Doctrine of Eclipse
When amending the constitution to repeal an invalid section of a legislation, it is critical to consider both the 'doctrine of separability' and the 'doctrine of eclipse'. The latter is applicable to pre-constitutional legislation that were valid at the time they were enacted. However, if there is inconsistency between the legislation and the current constitution, it will be eclipsed by the Fundamental Right and will stay inactive, but not dead. If and when the shadow is removed, the pre-constitutional law becomes immune to all forms of vulnerability.
The 'doctrine of eclipse' cannot be applied against a post-Constitutional statute, but the 'doctrine of severability' renders the law null and invalid ab initio. Article 13(2) of the Indian Constitution places restrictions on the legislature's ability to uphold the constitution's basic rights.
Burden of Proof
If a court judgement violates the constitution's basic rights, the burden of evidence shifts to the individual who questions and opposes the court's decisions. Chiranjit Lal Chowdhury versus the Union of India and Others, it is decided that whenever the legality of an act is challenged in any condition, the plaintiff must establish that he suffered some harm as a consequence of the legislation or law taking effect.
Persons with the authority to enforce the Severability Doctrine
A person who does not have any fundamental rights under the Indian Constitution cannot challenge any law on the basis of incompatibility with fundamental rights when there is a constitutional violation affecting the corporation or the shareholders are entitled to indict the validity of the unconstitutional part of a law. The factual question here is whether the law has affected the rights of the company or its shareholders. If a law harms the company's fundamental rights in a way that also affects the interests of the affected shareholders, the shareholders may contest the legitimacy of the act.
Restriction on the Doctrine's Enforcement
Ms Indira Gandhi's 24th amendment to the Indian Constitution in 1971 introduced Article 13(4), which states, "Nothing in this article shall apply to any modification to this Constitution made pursuant to article 368." The amendment's stated objective is to nullify the Supreme Court, which reviews parliamentary enactments under the Doctrine of Severability. As a result, Part III of the Indian Constitution, which deals with basic rights, was made amendable and judicial participation in such revisions was prohibited. The amendment drew widespread condemnation from jurists, the media, and members of the Constituent Assembly. The amendment's severe language prepared the door for a new clause requiring the President to provide his consent to any Constitutional Amendment Bill.
Case Laws Regarding the Severability Doctrine
“K. Gopalan v. State of Madras – 1950”
“The 1950 Preventive Detention Act was the subject of contention. The petitioner used Article 13(1) and challenged the Act, arguing that it violated his basic rights under Indian Constitution Articles 19 and 21”. In any case, the court did not invalidate the whole act but struck down Section 14 and affirmed the validity of the other parts. While adjudicating the case, the court said that "the challenged Act, save for this Section, may stay unchanged." The deletion of the Section will have no effect on the character or organisation of the legislation's topic." As a result, the Act's remaining sections will be severable under the Severability Doctrine.
“State of Bombay v. F.N. Balsara – 1951”
The Supreme Court ruled that the portions of the Bombay Prohibition Act that dealt with maintaining alcohol-mixed medications and toilet goods, selling and buying them, as well as using them, were unconstitutional under Article 19(1)(g) of the Constitution, but the remainder of the provisions were upheld.
“R.M.D.C. v. Union of India – 1957”
It all came down to the Prize Competition Act. It became obvious that the challenged Act did not make a distinction between competition involving gambling and competition involving skill-based competition. It is noteworthy that Section 2(d) of the Act was sufficiently broad to include both battles. Although the Supreme Court ruled that the competition without skills was illegitimate, it also created several limitations that are pertinent to the Doctrine of Severability.
Conclusion
The concept of severability lays the way for the application of judicial review. Bylaws that are rejected by the courts impinge on individuals' fundamental rights. When a person asserts that a piece of legislation violates his or her fundamental rights and seeks judicial review, he or she has the burden of establishing how the law in issue has affected those rights. The Doctrine of Severability is a fundamental element of the Indian constitutional system, and it acts as a criterion for judging the legality of legislative proposals and amendments. It acts as a check on the legislature's unrestrained powers, which, if left alone, may spiral out of control and infringe on people' most fundamental rights.
REFERENCES
BOOKS REFERRED-
Constitutional law book by - Mp Jain
JOURNAL ARTICLES
Doctrine of Severability - iPleaders iPleaders,
Doctrine of Severability Legalserviceindia.com,
The Doctrine of Severability - LexForti LexForti,
Constitutional Law: Doctrine of Severability Lexlife India,