According to the doctrine of severability, only that particular provision of the law—and not the entire law—must be declared unconstitutional if it infringes on a basic right while remaining compatible with other parts of the law. If the non-infringement clause may be taken independently of the primary law, it is recognised as valid and enforceable.

Article 13(1) states that “All laws in force in India, before the commencement of the Constitution, in so far as they are inconsistent with the provisions of fundamental rights shall to the extent of that inconsistency be void.” Comprehensively, the original context elucidates that the court shall nullify pre-constitutional laws to the extent to which it infringes the present-day fundamental rights. But what it connotes, does Article 13 have a retrospective effect? No, it is prospective in nature, because it does not declare any law void ab initio out rightly. Per contra, the repugnant law will become void only after the commencement of the Constitution.

Origin:

The Doctrine had its origin in England and was later adopted by the Indian Judiciary. The Doctrine was applied for the first time in the case of Nordenfelt Vs. Maxim nordenfelt Guns and Ammunition Company Ltd.,(1894) AC 535, it dealt with facts related to the contract in restraint of trade. The court noticed the severability of a clause in the disputed contract and held it void. However, it is pertinent to note that the court had not explicitly applied the Doctrine of Severability to invalidate the impugned clause; instead, the employed principle was the Doctrine of Blue Pencil.

According to the doctrine, which is an extension of Article 13, only the specific provision of a statute that violates or infringes upon a person’s fundamental rights and is severable from the rest of the statute will be declared invalid by the courts, not the entire statute.
The concept effectively states that the non-violative provision will be upheld as legitimate and enforceable if the violative and non-violative provisions are separated in a way that allows the non-violative provision to exist without the violative provision.

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.When only a portion of a statute attacks or violates fundamental rights, the doctrine of severability is applicable.

2. The Constitution’s Article 13 asserts the Doctrine of Severability’s legality.

3. To the extent that it conflicts with the provisions of basic rights, the part in question is void.

4. The law that is being violated should be distinct from other laws so that the court can only declare that particular portion unlawful.

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.

Case Laws:

The doctrine of severability was discussed in detailed in the case of R.M.D.C v. the State of Bombay AIR 1957 SC 699, and the court laid down the following principles.

• In order to find out whether the valid part of the statute can be separated from the invalid part, the intention of the legislature is the determining factor.
• In case the valid and non-valid parts of a particular statute are inseparable then it will invariably result in the invalidity of the entire statute.
• When the statute stands independently after the invalid portion is struck out then it will be upheld, notwithstanding that the rest of the Statute has become unenforceable.
• In cases where the valid and invalid parts are separable but both of them were intended to be part of the same scheme, then the whole scheme will be invalid.
• There may be instances where the valid and invalid parts are separable and not part of the same scheme, however, invalidating the valid part leaves the rest too thin and truncated, then also it will be invalidated as a whole.
• Severability is to be determined by reading the statute as a whole and not specific provisions or parts.
• In order to find the legislative intent behind a statute, it will be legitimate to take into account the history, object, title and preamble.

 Renu Vs. District and Sessions Judge Tis Harzari, AIR 2014 SC 2175 the supreme court of India held that “The object of Article 13(2) is to ensure that instruments emanating from any Source of law, permanent or temporary, legislative or judicial or any other source, pay homage to the constitutional provisions relating to fundamental rights.” Thus, Clause (2) of the Article secures the paramountcy of the constitutionally bestowed fundamental rights by proscribing the legislature from enacting any laws over its scheme. If so, it will be declared void.

K.Gopalan Vs. Madras AIR 1950 SC 27 The disputed statute was  The Preventive Detention Act, The petitioner invoked Article 13(1) and challenged the Act claiming that it has infringed his fundamental rights provided under Articles 19 and 21 of the Indian Constitution. Anyways the court had not invalidated the entire statute but quashed Section 14 of the challenged Act and upheld the constitutionality of the rest provisions of the Act. While adjudicating the matter in issue the court observed that “the impugned Act minus this Section can remain unaffected. The omission of the Section will not change the nature or structure of the subject of the legislation.” Therefore, the other provisions of the Act will remain intact according to the Doctrine of Severability.

State of Bombay Vs. F.N. Balsara AIR 1951 SC 318 Here, the disputed statute was theBombay Prohibition Act, 1949. The Supreme Court reaffirmed that declaring any provision of the Act as void will not affect the operation of other provisions within the statute. And, the very nature of this Doctrine is invalidating the unconstitutional provisions separably with keeping the remaining provision intact.

Conclusion:

In the Indian constitutional structure, the severability theory holds a prominent place. It serves as a standard by which the legitimacy of legislation is measured. It serves as a restraint on the legislature’s unregulated authority, which, left unchecked, is capable of going wrong and violating the most fundamental rights that are granted to people.