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Doctrine of Severability Explained

The doctrine of severability allows courts to separate unconstitutional provisions from statutes and acts, declaring only the offending portions invalid rather than the entire law. If a provision violates fundamental rights but is severable from the rest of the statute, only that provision will be struck down, allowing the remaining valid portions to stay in force. For a provision to be severed, the valid and invalid parts must be separable so the valid parts can stand on their own. The doctrine aims to preserve as much of the law as possible while removing unconstitutional sections.

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113 views1 page

Doctrine of Severability Explained

The doctrine of severability allows courts to separate unconstitutional provisions from statutes and acts, declaring only the offending portions invalid rather than the entire law. If a provision violates fundamental rights but is severable from the rest of the statute, only that provision will be struck down, allowing the remaining valid portions to stay in force. For a provision to be severed, the valid and invalid parts must be separable so the valid parts can stand on their own. The doctrine aims to preserve as much of the law as possible while removing unconstitutional sections.

Uploaded by

Manav Garg
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Doctrine of severability

Introduction –
This doctrine applies that whenever there is an issue on deciding about a provision, statute or
act then as per the doctrine the courts will apply their wisdom to ‘severe’ or ‘separate’ only
that portion of law which is inconsistent to the fundamental rights under part III .

Features –
 As an extension of Article 13, the doctrine states that when some particular provision
of the statute infringes or violates the fundamental rights, but the provision is
severable from the rest of the statute, and then only that provision will be declared
void by the courts and not the entire statute.
 The doctrine essentially lays down that if violative and non-violative provisions are
separated in a way that the non-violative provision can exist without the violative
provision, then the non-violative provision will be upheld as valid and enforceable.

Significance -
 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.
 Severability is to be determined by reading the statute as a whole and not specific
provisions or parts.

Cases –
Ak Gopalan vs. state of madras 1950
It was held that the entire preventive detention act should not be struck down when only
section 14 of impugned act is inconsistent with the fundamental rights under part III
Parts to remember when applying –
- When any provision of law/ statute is in violation of fundamental rights under part
III .
- Only that portion of impugned law or statute will be struck down which is
inconsistent with part III of the constitution and rest of provisions / statute will remain
valued and operative.
- One of the parameters of separating inconsistent laws is to find out its applicability in
the contemporarily context of the application of part III.

Kihoto Hollohan v. Zachillu


The Court upheld the validity of the Tenth Schedule while striking down its paragraph 7 for
violating the provisions of Article 368(2).

Conclusion –
The doctrine of severability is a principle of great eminence in the Indian constitutional setup.
It is the touchstone against which the validity of laws is tested.

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