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Interpretation of Statutes

Doctrine of Severability

When part of a statute is unconstitutional, must the whole statute fall? The doctrine of severability says no: if the invalid part can be separated from the rest, and the rest can stand on its own as a law the legislature would have enacted, only the invalid part is struck down. The doctrine is rooted in Article 13 and gives effect to the presumption that the legislature would rather have part of its law survive than none of it. This note sets out the doctrine, the tests for separability and the leading cases.

1. The Doctrine and Its Basis

  • Article 13. Laws inconsistent with or in derogation of fundamental rights are void to the extent of the inconsistency or contravention; the words limit invalidity to the offending part.
  • The idea. Where valid and invalid provisions are separable, the court strikes down only the invalid provision and preserves the rest.
  • Also called. The doctrine of separability; it applies equally where part of a law is beyond legislative competence.

2. The Test of Separability

Deciding whether to sever

Figure 1: Deciding whether to sever

In R.M.D. Chamarbaugwalla v Union of India (1957), Venkatarama Aiyar J set out the principles for deciding severability. Their core is as follows.

  • Intention of the legislature. The question is whether the legislature would have enacted the valid part if it had known that the rest was invalid.
  • Inextricably mixed. If the valid and invalid provisions are so inextricably bound up that they cannot be separated, the whole Act fails.
  • Complete code. If, after severance, what remains is a complete law capable of being enforced, it is upheld.
  • Single scheme. If the provisions form part of a single scheme that would be defeated by severance, the whole is invalid.
  • No rewriting. Severance must not require the court to rewrite or alter the remaining provisions.
  • Form not decisive. That the valid and invalid parts are in the same section or different sections is not by itself decisive; the test is one of substance.

3. The Leading Cases

Severance in the Supreme Court

Figure 2: Severance in the Supreme Court

  • A.K. Gopalan (1950). Section 14 of the Preventive Detention Act, which barred disclosure of the grounds of detention to the court, was struck down; the rest of the Act was upheld.
  • F.N. Balsara (1951). Some provisions of the Bombay Prohibition Act were held invalid and severed, the rest of the Act being upheld.
  • RMDC (1957). The Prize Competitions Act was read as applying only to competitions of a gambling nature and upheld, applying severability to its scope.
  • Kihoto Hollohan (1992). Paragraph 7 of the Tenth Schedule, excluding judicial review, was struck down as it had not been ratified by the States; the remainder of the anti-defection law survived.
  • Shreya Singhal (2015). Section 66A of the Information Technology Act was struck down in its entirety; the rest of the Act was unaffected.

4. Severability and Reading Down

  • Severance. Removes an identifiable invalid provision or part of it.
  • Reading down. Gives a provision a narrower meaning so that it stays within constitutional limits, without striking anything out (Topic 35)
  • Choice. Courts prefer the approach that preserves the law as far as possible while respecting the legislative intent.

⚠ Exam trap

Base the doctrine on the words 'to the extent of' in Article 13, and give the RMDC (1957) test: would the legislature have enacted the valid part alone, are the parts inextricably mixed, and is the remainder a complete, workable law. Use A.K. Gopalan (1950) for s.14 severed, Kihoto Hollohan (1992) for paragraph 7, and Shreya Singhal (2015) for s.66A. Distinguish severance from reading down.

5. Frequently Asked Questions

What is the doctrine of severability?

It is the doctrine that where a part of a statute is unconstitutional, only that part is struck down, provided it can be separated from the valid part and the remaining provisions can stand by themselves as a law the legislature would have enacted. It rests on Article 13, which makes a law void only to the extent of its inconsistency with fundamental rights.

What test did the Supreme Court lay down in RMDC v Union of India?

The Court held that the question is whether the legislature would have enacted the valid part if it had known the rest was invalid. If the valid and invalid parts are so inextricably mixed that they cannot be separated, or form a single scheme that severance would defeat, the whole Act fails; if what remains is complete in itself and capable of enforcement, it survives.

Give examples of severance by the Supreme Court.

In A.K. Gopalan (1950) Section 14 of the Preventive Detention Act was struck down while the rest of the Act survived. In Kihoto Hollohan (1992) paragraph 7 of the Tenth Schedule was struck down and severed, leaving the rest of the anti-defection law intact. In Shreya Singhal (2015) Section 66A of the Information Technology Act was struck down without affecting the rest of the Act.

6. Related Topics

  • Topic 32: Doctrine of Eclipse. The other Article 13 doctrine.
  • Topic 35: Reading Down and Reading In. Saving a provision without severance.