Constitutional Law: Doctrine of Severability

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Fundamental rights are the quintessential factor for a dignified living and holistic development of an individual. Fundamental rights are enshrined in Part III of the Indian constitution that applies to every citizen of India. Inclusion of Fundamental Rights in the constitution is as important as to enforce the provisions when it is violated. If a portion of law is found to be unconstitutional, it is the rationale to question whether the particular law or a portion of it becomes void. Article 13 in Indian constitution speaks of the doctrine of severability that acts as a saviour in combating violation of fundamental rights. At this juncture of pandemic situation, it is vital to revisit the ‘Doctrine of Severability’ on the COVID 19 Pandemic lockdown protocol through the lens of Article 13 of the Indian Constitution.

Doctrine of Severability

Article 13 of The Indian Constitution read,

“All laws enforce in India, before the commencement of Constitution, in so far as they are inconsistent with the provisions of fundamental rights shall to the extent of that inconsistency be void.”

The pressing aspect of the aforementioned clause must be explained with clarity. When a particular part of a statute bounce beyond the fundamental rights of the constitution, the very part of the statute/Act would be declared void provided that, the unconstitutional part of the statute/law is separable. But, if the unconstitutional part of the statute is inseparable, then the entire statue would be held void. Hence, severability finds its significant place while invalidating an unconstitutional portion of a statute.

The doctrine of Severability in Article 13 can be understood in two dimensions

1. Article 13(1) validates all Pre-Constitutional Law and thereby declares that all Pre-Constitutional laws in force before the commencement of the Indian Constitution shall be void, if they are inconsistent with the fundamental rights.

2. Article 13(2) mandates the State that it shall not make any law which takes away or abridges the fundamental rights conferred in  Part III of Indian Constitution and any law contraventions this clause shall be void.

Evolution of the Doctrine

The Doctrine of Severability is not a principle that was found after the Indian constitution rather; it has been in existence in the judicial system of England for long. For the first time, the doctrine of Severability was applied to decide the case “Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Company Ltd, 1876”. In House of Lords,  the plaintiff –a specialised manufacturer in armaments, decided to sell his business to the defendant, with the mutual agreement that, hereafter the plaintiff would not indulge in any production of guns and other weapons anywhere in the world and the plaintiff would not compete with the defendant in any way for 25 years.

But it was held that, though the conditions of the contract were at the interests of the parties, the restraint of trade is considered to be void ab initio in the common law. Subsequently, the court observed that the contract is against the reasonable scope of public policy. The interrogation was about the severability i.e., whether, the unreasonable clauses of the contract could be fragmented and still make the contract valid. Since the unreasonable portion of the contract (Restraint of Trade) is severable, the court employed the doctrine of blue pencil (similar to the Doctrine of Severability) and approved the first part of the agreement that “the plaintiff would not make guns or ammunition anywhere in the world” and thereby permitted the plaintiff to trade without any restraint.

Later in cases viz., Champlin Refining Co. v. Corp. Commission of Oklahoma,1932 and Ayotte vs. Planned Parenthood of N. New Eng, 1894, the court discussed the doctrine of Severability in detail and propounded 3 principles of rationality to sever the problematic portions of an act and to approve the rest of it. The three interrelated principles are,

1. The court tries not to nullify more of a legislature’s work than is necessary
2. Mindful that its constitutional mandate and institutional competence are limited, the Court restrains itself from “rewriting the state law to confirm it to constitutional requirements”
3. The touchstone for any decision about remedy is legislative intent.

In the fullness of the time, the doctrine of Severability was found to be included in the constitution of many countries like USA, Australia, Malaysia and India as well. The Indian Constitution had picked up the best features from other constitutions – the fundamental rights from the USA and the doctrine of Severability from the UK. By adopting the Doctrine of Severability, the Indian constitution upholds the principle of ‘natural justice’.

Salient Features of the 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.

• The Doctrine of Severability v. Doctrine of Eclipse

While making a constitutional amendmenton the unconstitutional part of a statute, it is significant to take into account both ‘doctrine of Severability’ and ‘doctrine of eclipse’. The latter can be applied in the case of pre-constitutional laws which were valid at the time of enactment. But, if there is some incompatibility in the law concerning the present constitution, it would be overshadowed by the Fundamental Right and would remain dormant, but is not dead anyway. If and when an amendment is made thereby removing the shadow, the pre-constitutional law becomes free from all kinds of susceptibility.

The ‘doctrine of eclipse’ cannot be invoked in the case of a post Constitution law whereas; ‘Doctrine of Severability’ makes the law void ab initio. Owing to Article 13(2) of the Indian Constitution, limitations are laid upon the legislature to adhere to the fundamental rights of the constitution.

• 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.

• 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.

• 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.

Landmark judgements

 R.M.D.C. v. Union of India (1957) finds its significant place among other landmark judgements as the entire judgement observed Doctrine of severability and its observations are

1. The Intention of the legislature is the determining factor whether the valid part of a law is severable from the invalid parts
2. If the valid and invalid portion of an act is closely amalgamated in a way that it cannot be separated, the invalidity of a portion may result in invalidity of the entire Act.
3. On the other hand, if they are so distinct and separable after striking out the invalid portions of an Act, it becomes enforceable.
4. Courts would be reluctant to declare a law invalid or ultra vires on account of unconstitutionality.
5. Courts would accept an interpretation, which would be in favour of constitutionality rather than the one which render the law unconstitutional.
6. The court can resort to reading down a law in order to save it from being rendered unconstitutional. But, while doing so, it cannot change the essence of the law and create a new law which in its opinion is more desirable.

The acid test of doctrine of severability was applied in the following judgement with the view to safe guard the fundamental rights of the citizen of India.

• In A.K. Gopalan v. State of Madras (1950), the petitioner- a communist leader was detained under the Preventive Detention Act, 1950 and he challenged the preventive detention made on the ground that is infringement of his fundamental rights under article 19 and 21 of Indian Constitution. The Supreme Court held that only the unconstitutional provision of the challenged Act will be void according the Doctrine of Severability. Section 14 of the Preventive Detention Act was declared unconstitutional and void. The Section 14 was severed and every other sections of the Preventive Detention Act, 1950 remained constitutionally valid. 
• State of Bombay v. F.N. Balsara (1951) the unconstitutional portions of the Bombay Prohibition Act were declared void by the Supreme Court as the portion of invalid was separable from the rest of the act.
• Kihoto Hollohan v. Zachilhu (1965)– Popularly known as the defection case, the court declared that Para 7 of the Tenth Schedule of Indian Constitution through the 52^nd amendment act, 1985 as unconstitutional portion for violation the provision under article 368(2). It upheld the validity of the rest of the tenth schedule.
• Minerva Mills v. Union of India (1980) – The court struck down the Section 4 and 55 of the 42^nd amendment act (1976) as it was found ultra vires beyond the amending power of the parliament. It declares the rest of the act as valid.

Critical Analysis: Applicability of Doctrine of Severability during the Lockdown of COVID-19 pandemic

For the first time in the history of India, a National Lockdown – an undeclared national emergency is declared for 74 days (from 25.03.2020 to 17.05.2020), limiting movement of the entire 1.3 billion population of India as a preventive measure against the COVID-19 pandemic in India. The lockdown curtailed the common people mobility from homes to their regular work. The public transport services were suspended. Later some exceptions were given for transportation of essential goods and emergency services.  The Home Ministry ordered restrictions that anyone who fails to follow the lockdown can face imprisonment for a period up to a year.

To recover from the pandemic, successful medical and lockdown protocols of China and European countries were followed up. The districts were categorised as red, orange and green zones and within the red zone, the areas of COVID 19 positive cases were declared as Containment Zones. Soon after the delineation and closing of the containment zone, the entire population must be tested for COVID 19 infection and if any person found infected, the person has to be shifted to the hospital. Once the tests were over for the entire population of the containment zone, the zone has to be opened for the public for their day to day affair. As per the Article 19 of Indian Constitution, reasonable restriction is allowed in the interest of the public but; the restriction should not be misused or overused.

In reality, the COVID 19 confirmation tests are not conducted for the entire population of the containment zone and it is closed indefinitely.  Against the few reported cases, the mobility of thousands of people within the containment zone continues to be locked indefinitely and it is a violation of Fundamental Right that enshrined in the article 19 & 21 of Indian Constitution. It is unconstitutional to restrict the people’s movement completely in the containment zone for an indefinitely period without proper testing. Hence, the doctrine of severability would apply in this lockdown protocol where the unconstitutional portions of the protocol would be severed and made void.

Conclusion

The Doctrine of Severability in Indian Constitution is a pre-eminent principle to protect the fundamental rights of every citizen of the county. It is an acid test to validate any law against the Fundamental Rights that enacted either in the present parliament and legislative assembly or in the pre-constitutional period. This doctrine has an all-time relevance in every legal aspect of the governance of a welfare state. At this juncture, it is pertinent to validate the unconstitutional portion of COVID-19 protocol which is against the fundamental right of our constitution.

Author: Valan. A from Tamil Nadu National Law University, Thiruchirappalli.

Editor: Arya Mittal from Hidayatullah National Law University, Raipur.