DOCTRINE OF SEVEREBILITY

 DOCTRINE OF SEVERABILITY

BY NUPUR GARG

INTRODUCTION 

This doctrine of severability is also known as the doctrine of separability.  The word “to the extent of the inconsistency or contravention” makes it clear that when some of the provision of a statue when some of the provisions of a statute becomes unconstitutional on account of inconsistency with fundamental rights, only to the repugnant provision of the law in question shall be treated by the courts as void, and not the whole statute.

The doctrine of severability means that when some particular provision of a statute offends or is against a constitutional limitation, but that provision is severable from the rest of the statute, only that offending provision will be declared void by the Court and not the entire statute.

The doctrine of severability says that if good and bad provisions are joined together by using the word 'and' or 'or' and the enforcement of good provision is not made dependent on the enforcement of the bad one that is the good provision can be enforced even if the bad one cannot or had not existed, the two provisions are severable and the good one will be upheld as valid and given effect to. On the other hand, if there is one provision which is capable of being used for a legal purpose as well as for illegal one, it is invalid and cannot be allowed to be used even for the legal purpose.

ESSENTIAL FEATURES OF DOCTRINE 

1. Widens the Scope for Judicial Review on Unconstitutional Parts of any Law

The doctrine of Severability through the Article 13 of the Indian Constitution opens the doors for the judicial review on any law or part of it that is found unconstitutional or violative of fundamental rights. It enables the Supreme Court and High Court to interpret laws and to review the pre-constitutional and existing laws through a contemporary approach of law. Amidst the sparking argument concerning the legitimacy of judicial intervention in constitutional matters, judicial review has been extended in many cases so as to protect the fundamental rights that guaranteed in Part III of the Indian Constitution. The parliament and state legislatures are restrained from enacting laws that may curtail the fundamental rights guaranteed for the citizens of the country. If a law is partially unconstitutional, it would be deemed ineffective until an amendment is made.

2. Burden of Proof

If the particular decision of the court contravenes with the fundamental rights of the constitution, then the burden of proof falls upon the person who questions and challenges decisions of the court.  In the case, Chiranjit Lal Chowdhury vs The Union of India and Others, it is held that if the constitutionality of the act is challenged in any circumstances, the complainant must prove that some injury was sustained by him as a result of the statute or law coming into force.

3. Persons entitled to enforce the doctrine of Severability

A person, who does not possess any fundamental rights under the Indian Constitution, cannot challenge any law on the grounds of incompatibility with fundamental rights, when there is a constitutional violation that affects the corporation, or the shareholders are entitled to indict the validity of the unconstitutional part of a law. Here, the question of fact is that, whether the right of the corporation or the shareholders have been affected by the law. If the fundamental rights of the company have been impugned by a statute in a way that, it also affects the interest of the concerned shareholders, the shareholders can question the constitutionality of the statute.

4. Limitation in Enforcement of the Doctrine

The 24th amendment of the Indian Constitution by Ms. Indira Gandhi during 1971 added the clause (4) of Article 13, that says, “Nothing in this article shall apply to any amendment of this Constitution made under article 368”. The very purpose of the amendment is to annul the Supreme Court that oversees the enactments of parliament from the point of view of Doctrine of Severability. Hence, the Part III of the Indian Constitution that covers fundamental rights was brought into the realm of amendment procedure and judicial intervention of those amendments was forbidden. The amendment earned sharp criticism from jurist, media fraternity and members of the Constituent Assembly. The stringent nature of the amendment paved a way for a new provision which obligated the President to give his assent for every Constitution Amendment Bill.

CONCLUSION

This doctrine also enables the Supreme Court and the High Court to review the existing and the pre- constitutional laws by the contemporary rules and provisions under various laws also it authorizes the SC and HC to elucidate the laws. Therefore it can be safely considered that the Doctrine of Severability plays a very important role and is of an absolute relevance in the Judicial System of India.