Doctrine of Severability

By : Neha Dhyani

Updated : Apr 4, 2022, 10:25

Exercising fundamental rights are the essence of a decent life and the holistic development of an individual. Fundamental rights are set out in Part III of the Constitution of India, which applies to all citizens of India. Incorporating basic rights into the Constitution is as important as enforcing provisions when they are violated.

If a part of the law turns out to be unconstitutional, you must determine if this part is invalid. The idea of division is also called the theory of division. The Doctrine of Severability also called the act of separability, is that if a particular law violates constitutional restrictions, but is separable from the main body of the law, the court declares this offending clause unconstitutional, invalid, and not the entire law.

The Legal Article that regulates the Doctrine of Severability

Article 13 of the Constitution of India describes the Doctrine of Severability as a saviour in the fight against infringement of fundamental rights. It is important to rethink the "Dogma of Separability" under the Constitution of India. It states the extent to which any part is inconsistent which shall be termed as invalid.

  • If a particular part of the legislation goes beyond the fundamental rights of the Constitution, the actual part of the legislation is declared invalid if the legislation / unconstitutional part of the legislation is separable.
  • However, if the unconstitutional part of the law is inseparable, the entire legislation is declared invalid.
  • Therefore, separability occupies an important position in nullifying the unconstitutional part of the legislation.
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Scope of Article 13

  • Article 13 (1) confirms all pre-Constitutional laws and all pre-Constitutional laws that were in force before the enactment of the Indian Constitution as invalid if they contradict basic rights.
  • Article 13 (2) requires the State not to enact a law that abolishes or limits the fundamental rights granted in Part III of the Constitution of India, and the case of any breach of this provision by law will be termed invalid.

Characteristics of the Doctrine of Severability

  1. If only some or part of the statutes attack or violate basic rights, and in such cases, the Doctrine of Severability applies.
  2. Article 13 of the Constitution claims the legitimacy of the Doctrine of Severability
  3. The part that contradicts the provisions of basic rights, shall be invalid to the extent of the contradiction.
  4. The violating part should be separable from other laws, for which the court will only unconstitutional that specific part.
  5. The concept is that a non-infringement clause is recognized as legal and enforceable if the infringement can survive without the main clause.

The Doctrine of Severability paves the way for judicial review. If a person claims that the law infringes their fundamental rights and requires a judicial review of the decision, they are responsible for proving how the law in question infringed their rights.

In India's constitutional system, the Doctrine of Severability is the central foundation and the basis for assessing the legality of the law. It serves to check the legislature's unlimited authority.

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FAQs on Doctrine of Severability

Q.1. What is the Doctrine of Severability?

The Doctrine of Severability is that if a particular section of the law violates a fundamental right but can be separated from the rest of the law, the court declares only that section unconstitutional, not the whole law. The non-infringement clause is recognized as legal and enforceable if it can be separated from the main law.

Q.2. Which provision of the Constitution establishes the legitimacy of the Doctrine of Severability?

Article 13 of the Indian Constitution establishes the legitimacy of the Doctrine of Severability to the extent that they should not contradict the provisions of basic rights and in case of any discrepancies, they shall be claimed as invalid.

Q.3. Give some examples where the Doctrine of Severability was applied by the courts?

Some of the important cases where the Doctrine of Severability was applied by the courts are:

  • R.M.D.C vs Bombay State
  • A.K. Gopara vs Madras State
  • Bombay State vs FN Balsara
  • Kihothorohan vs Zachil, etc.

Q.4. Name some laws that are considered under Article 13 Doctrine of Severability of the Constitution of India?

Some laws that are considered under Article 13 Doctrine of Severability of the Constitution of India are:

  • Permanent law created by the Parliament or state legislature
  • Provisional laws such as presidential orders or laws issued by the state governors.
  • Legal documents of the nature of delegated legislation (enforcement legislation) such as ordinances, legislation, rules, ordinances, or notices.
  • Non-legislative foundations of law, for example, customs with the power of law.