Doctrine Of Severability:
Consider a hypothetical law on environmental protection with ten sections. If Section 5, which
imposes an administrative fee, infringes on due process, a court applying severability can remove
just Section 5. Sections 1–4 and 6–10 would still shield endangered species, regulate pollution, and
fund conservation—ensuring the statute’s core mission survives.
At its core, the Doctrine of Severability is a judicial tool that allows courts to strike down an
unconstitutional provision of a statute while leaving the rest of the law intact—provided the
remaining provisions can still function in a manner consistent with the legislature’s intent.
Why Severability Matters – 1 minute
1. Preservation of Legislative Work
Laws are complex, often containing dozens or hundreds of provisions. Invalidating an entire
statute because of one flawed provision could undo valuable policy decisions and disrupt
governance.
2. Respect for Democratic Intent
Courts exercise judicial review to protect constitutional rights—but they are not in the
business of rewriting legislation. Severability strikes a balance: it protects constitutional
norms without negating the will of the people’s representatives.
3. Legal Stability
Wholesale annulment of statutes can create legal vacuums, harming individuals and
institutions that depend on those laws. By preserving what remains valid, courts ensure
continuity.
Evolution of the Doctrine
Although the Doctrine of Severability was first articulated in the Indian constitution, it had
existed in the English court system for many years prior to that date. The theory of
Severability was used for the first time in the case of Nordenfelt v. Maxim
Nordenfelt Guns and Ammunition Company Ltd[3], It was agreed upon by both
parties in the House of Lords that the plaintiff- a gun and other weapon manufacturers—
would no longer engage in any manufacturing of firearms or weapons anywhere in the
globe and would not engage in competitive activities with the defendant for a period of 25
years. However, even if the terms of the contract were aimed at benefiting the parties, the
restraint of commerce was found to be unlawful from the start under common law since it
was against the parties’ interests. As a result, the court ruled that the contract went beyond
the pale of what could be considered reasonable under the circumstances. The question
was concerning the severability of the contract, i.e., whether or not the unreasonable terms
could be broken apart and yet make the contract legitimate. For this reason, even though
the contract’s restraint of trade provision was unconscionable, the court applied what’s
known as a blue pencil doctrine (which is similar to the Doctrine of Severability) and
allowed the plaintiff to trade as usual, as long as they didn’t make guns or ammunition
anywhere in the world.
In A.K. Gopalan v. State of Madras[5]–the petitioner, a communist leader, was arrested
under the Preventive Detention Act, 1950, and he challenged the preventive detention on
the grounds that it is a breach of his fundamental rights under Articles 19 and 21 of the
Indian Constitution. According to the Doctrine of Severability, only the section of the
challenged Act that was unconstitutional would be invalidated, according to the Supreme
Court. According to the ruling, the Preventive Detention Act’s Section 14 was illegal and
null and invalid. Section 14 of the Preventive Detention Act of 1950 was struck down, while
the rest of the act was upheld as constitutional.
What are the Rules in Relation to Doctrine of Severability?
•In the case of RMDC v. Union of India (1957), the Supreme Court established the
following rules or principles about the doctrine of severability:
•The legislature's intent is the decisive factor in evaluating whether the legitimate
sections of a legislation may be separated from the invalid parts. If the legislature had
realized that the rest of the Act was illegal, it would have enacted the valid section.
•If the lawful and invalid provisions are so intricately intertwined that they cannot be
separated, then the invalidity of a component of the Act must result in the Act's whole
invalidity.
•On the other hand, if they are sufficiently different and separate and after striking out the
invalid, what remains is a full code in and of itself, it will be upheld even if the rest is no
longer enforceable.
•Even though the lawful provisions are different and distinct from the invalid provisions, if
they all constitute part of a single scheme that is meant to be operational as a whole, the
invalidity of one portion will result in the failure of the entire scheme.
•The separability of a statute's valid and invalid provisions is not determined by whether
the law is enacted in the same section or in separate sections; what matters is
the substance of the matter, which must be determined by examining the act as a whole
and the setting of the relevant provisions therein.
•If the remaining section of the act cannot be enforced without making changes and
adjustments, the entire statute must be declared void, since it would otherwise
constitute judicial legislation.
•It will be reasonable to consider the history of legislation, its goal, title, and preamble
in evaluating legislative intent on the matter of separability.
The Doctrine of Severability Vs. Doctrine of Eclipse
While making a constitutional amendment on 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 Constitution of India, limitations
are laid upon the legislature to adhere to the fundamental rights of the Constitution of India.
The Severability Clause finds its basis from the Blue-Pencil, or Blue-Pencil Test, which means to delete
the invalid (unenforceable) words of a part of statute to keep the other parts of such provisions
validated, and thus, enforceable. Resultantly, the valid part of a provision is enforced without the need
to invalidate the complete provision solely owing to a certain invalid part. The term Blue-
Pencil popularly means to censor or to make cuts such as manuscript, film or other words.
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.
The Supreme Court decriminalized consensual same-sex relations in
this case. It declared certain provisions of Section 377 of the Indian
Penal Code unconstitutional.
Navtej Singh The court held that the remaining provisions of Section 377 could be
Johar v. Union 2018 upheld.
of India These provisions did not violate fundamental rights.
The case applied the doctrine of severability.
The context was decriminalization and protection of individual
rights.
Constitutionality of Aadhaar Act
Justice K.S. Puttaswamy v Union of India
Aadhaar and Right To Privacy – Key Points
•An Aadhaar is a unique 12-digit identification number issued to the citizens of the country by
the Government of India as identification proof. Unique Identification Authority of India (UIDAI) is
the issuing and managing bogy for Aadhaar cards in the country.
•There have been a lot of controversies about the privacy-related issues with Aadhaar as in
view of maintaining the data online, the privacy of citizens cannot be avoided. The linking of
Aadhaar cards to bank accounts, UPI applications, etc. has raised many questions in terms of
the Right to Privacy of a citizen.
•The Supreme Court has said the Aadhaar metadata cannot be stored for more than six
months. The Aadhaar Act had a provision to store allowed storage of such data for a period of
five years. The Supreme Court has read down Section 2(d) of the Aadhaar Act to refrain
government authorities to store Aadhaar metadata of transactions. The Court also said that the
Centre must bring a robust data protection law urgently.
•Some sections of the Aadhaar Act were struck down. This includes the part of section 57 which
allowed providing private corporations to verify Aadhaar data. It was held unconstitutional.
•However, as per the judgement of the Supreme Court on September 26, 2018, it said, that
Aadhaar is meant to help the benefits reach the marginalised sections of society and takes into
account the dignity of people not only from a personal but also community point of view.
However, disapproved mandatory linking to a few other sectors and spheres.
In law, if part of a statute violates our Constitution, judges can remove that offending part
and keep the rest of the law intact. For example, in D.S. Nakara v. Union of India (1983),
the Supreme Court struck down an unfair clause in a pension law while leaving the rest of
the scheme in place. Other cases like State of Bombay v. F.N. Balsara (1951) show the same
approach: only the "rotten" clauses are cut off, and the rest of the law stays on the books. It’s
like editing a document – crossing out the bad sentence instead of throwing away the whole
paragraph.
Now think about laws that were made before our Constitution existed. The Doctrine of
Eclipse applies to those. It says if a pre-Constitution law conflicts with our newly granted
rights, it doesn’t disappear entirely – it just goes to sleep. In Bhikaji Narain Dhakras v. State
of Madhya Pradesh (1955), the Supreme Court held that an old transport law, which clashed
with a new constitutional right, was merely "in eclipse." The law lay dormant rather than
dead, and when the Constitution was later tweaked by an amendment, that old law woke up
and became valid again. It’s like the sun hiding behind a cloud – the law is still there, just
momentarily blocked.
Now consider what happens when a government tries to achieve by subterfuge what it
cannot do directly. This is the Doctrine of Colourable Legislation. In State of Bihar v.
Kameshwar Singh (1952), the state tried it with land rents: it took nearly all of a landlord’s
rent, pretending only part of it was a valid tax. The Supreme Court saw through the mask –
it declared the scheme a fraud on the Constitution and struck it down as colourable
legislation. It’s like wearing a mask: if a law looks lawful on the outside but hides its real
purpose, the court will peel off the disguise and reveal the truth.
These three doctrines – Severability, Eclipse, and Colourable Legislation – are like safety
valves in our Constitution’s machinery. They keep our laws fair and flexible. Courts use
them to cut out only the bad parts of a law, to let old laws resurface when conditions change,
and to catch any disguised tricks. Together, they ensure that our Constitution remains strong
without throwing out everything when problems arise. Remember the salad, the cloud, and
the mask – simple images to recall these ideas. Thank you!
. Doctrine of Eclipse – “Not dead, just in the dark”
Picture a solar eclipse. The sun is still there — it’s just temporarily hidden. This doctrine
says that pre-Constitution laws that clash with fundamental rights don’t die; they just
become dormant — hidden behind the shadow of the Constitution.
However, the scope of the principles established above stands drastically curtailed in view
of the Supreme Court decision in State of Gujarat v. Shree Ambica Mills,3' wherein
Matthew, J. held that like a pre-Constitutional law, a postConstitutional law contravening a
fundamental right could also be valid in relation to those, whose rights were not infringed
upon. For instance, when a postConstitutional law violates a fundamental right like Article
19 which is granted to citizens alone, it would remain valid in relation to non-citizens?' Thus
the term "void" in both the clauses of Article 13 makes a law only relatively void, and not
absolutely void.
This judgment has been used to contend that the Doctrine has finally been extended to all
post-Constitutional laws as well, since it recognizes that the law is not an absolute nullity
and can operate against non-citizens.3 The author submits that this is not the correct
proposition of law. It is evident that a law which abridges the rights of only citizens will
remain enforceable against non-citizens, and thus, there is no question of the Doctrine of
Eclipse even entering the picture. However, as regards citizens whose rights were infringed,
the law must he regarded as stillborn and void ab initio, and therefore, in order to make it
apply to citizens, the law would have to re-enacted afresh. From this arises the final
question: When a post-Constitutional law is held inconsistent with a fundamental right, can
it be revived by amending the Act in question so as to remove the blemish, or will it have to
be re-enacted as a whole?
The Delhi High Court in P.L. Mehra v. D.R. Khanna,34 has held that the legislation will
have to be re-enacted and that it cannot be revived by mere amendment. This view appears
to the author to emanate logically from the position adopted by the Supreme Court in
treating such a law as void ab initio. There is,.therefore, no need to apply the Doctrine of
Eclipse to post-Constitutional laws, as discussed above. There is no direct Supreme Court
ruling on this point. The closest authority on this issue is Shama Rao v. State of
Maharashtra, 3 wherein an Act was challenged on the ground of excessive delegation, and
pending the decision, the Legislature passed an Amendment Act seeking to remove the defect.
The Supreme Court ruled by a majority that when an Act suffers from excessive delegation, it is
stillborn and void ab initio. It cannot be revived by an amending Act seeking to remove the vice,
and must be re-enacted as a whole. It is submitted that this ruling supports the proposition that an
Act held invalid under Article 13(2) would not be revived merely by amending it, but would have to
be re-enacted. Hence, we may safely infer that Ambica Mills does not destroy the force of the
judicial pronouncements in Deep Chand and Mahendra Jaini, but merely limits the scope of their
operation, and that the Doctrine, as of now, cannot be extended to post - Constitutional laws.
Following the World Health Organisation's far-reaching announcement,
the Union cabinet secretary yesterday said all states and Union
Territories should invoke provisions of Section 2 of the Epidemic
Diseases Act 1897. The move comes as coronavirus cases crossed the
70 mark on Thursday.
The 1897 law, which was enacted to tackle bubonic plague in the then
Bombay state, is meant to contain dangerous epidemic diseases. It
confers special powers upon local authorities to implement measures
necessary to control epidemics.
On 22 April 2020, the Government of India announced the promulgation of an ordinance,
'The Epidemic Diseases (Amendment) Ordinance 2020', to amend the act, adding
provisions to punish those attacking doctors or health workers.[1][7] The ordinance allows
for up to seven years of jail for attacking doctors or health workers
The provisions of the Act state that the government can fine people or imprison them for violating
rules and regulations, set to contain the outbreak. Section 3 of the Act says any person disobeying
any regulation or order made under this Act shall be deemed to have committed an offence
punishable under Section 188 of the Indian Penal Code.
The Act was brought into force before Independence to control plague in the late 1800s that killed
thousands of people.
As per the Section 4, no suit or legal proceeding shall be held against any person who acts in good
faith to serve the purpose of the Act.
Doctrine of Eclipse and Section 309
The Doctrine extended its provisions under the Indian Penal Code in the cases of Rathinam and Gian
Kaur. Section 309 of the IPC, which criminalizes attempts to suicide, was challenged in the case of
Rathinam v. Union of India. Section 309 was deemed unconstitutional as the Court observed that Article
21 holds the right to live, which also induces the right not to live. A constitutional bench reversed the
judgment of the Rathinam case and upheld the validity of Section 309 in the case of Gian Kaur v. the
State of Punjab. Thus, removing the Eclipse on Section 309 to make it operational again.
Doctrine of Eclipse and article 368
The debate on the validity and absoluteness of Article 368 started with the case of Golaknath. In I.
C. Golaknath v. State of Punjab, the Punjab Security and Land Tenures Act of 1953 was challenged
on the ground that this legislative Act had violated the fundamental right to hold and acquire
property and practice any profession. The judgment left the Parliament Legislature with no power to
break the fundamental rights and provided them with limited amending powers under Article 368.
Therefore, Article 368 was eclipsed. The judgment of I. C. Golaknath was overturned in the
legendary case of Keshavananda Bharti v. Union of India[1], which stated that the Parliament could
amend the fundamental rights of the Indian Constitution but without changing the basic structure of
the Constitution and thus, removed the Eclipse from Article 368
. Setting the Stage (≈45 seconds)
Every federal constitution allocates law-making powers between different levels of government—
typically national and regional. When a legislature enacts a law, it must stay within its assigned
“head of power.” But what happens if it tries to disguise a law’s true purpose to slip past
constitutional limits? That’s where the Doctrine of Colourable Legislation comes in: it empowers
courts to look beyond the form of a statute to its real substance.
The powers and the function of the legislation are mentioned in part XI of the Indian constitution
which states the relations between the union and the state. Article 245 of the Indian constitution1
states, the extent of the powers of the laws made by parliament and the legislatures of the states. In
addition to that, article 245 also mentions that the parliament may make legislate the laws for the
whole of India, or any part of India and the state legislature may make formulate the laws for the
whole of that particular state or any part of it. It is relevant to mention that the laws formulated by
the parliament cannot be deemed as invalid citing that they would have an extra-territorial function.
Furthermore, article 246 of the Indian constitution also mentions that the legislature of the state can
legislate laws on the subject matter which are enumerated in List II of the VII Schedule of the
Indian constitution. In chapter XI of the Indian constitution talks about the relations between the
union and the state, there are numerous provisions written on the aspect of the powers and the
functions of the legislation of the union and the legislature of the states. Some of them being,
Article 248 which talks about the residuary of the legislation, which explicitly states that the
parliament has the power to legislate laws on any subject that are not mentioned in the state of the
concurrent list of the Schedule VII of the Indian constitution2 . Whereas, Article 246 talks about the
Subject-matter of laws made by Parliament and by the Legislatures of States, mentioned that the
union can only make laws on those subject matter which are mentioned in list I of the seventh
schedule of the Indian constitution, in addition to that, a state can make the laws which are
mentioned in the List II of the seventh schedule of the Indian constitution3 . Furthermore, the union
as well the state can legislate laws on those subject matter which are mentioned in the List III the
seventh schedule of the Indian constitution which they have the capacity onto, or on those subject
matter, the constitution has given them to power to legislate the laws on.
THE DOCTRINE OF COLOURABLE LEGISLATION The doctrine of colourable legislation is
also one of the tools, which is applied by the supreme court to understand the validity of the
legislated laws and to ensure the competence of the legislature while ratifying such laws. It is a
guiding principle of immense utility while construing provisions relating to legislative competence.
Colourable legislation theory says, "Whatever the government is unable to do directly, it cannot do
indirectly." Which is derived from the Latin maxim “Quando aliquid prohibetur ex directo,
prohibetur et per obliquum,” Further elaborating on the doctrine of colourable legislation, any
legislation is said to be colourable when the legislature passes legislation that is outside of their
competence or the powers granted by the constitution by camouflaging it to look to be within their
competency to legislate the laws. In layman's words, the concept states that if the legislature is not
expressly or implicitly granted the right to legislate, then they cannot go beyond their competent
powers and indirectly pass such laws. This is associated with the doctrine of colourable legislation.
As a result, it refers to the legislature's ability to pass certain legislation. If the challenged law
comes within the legislature's purview, the question of doing something indirectly that cannot be
done directly does not arise. The primary objective of the doctrine of colourable legislation is to
maintain transparency among Indian citizens and to focus on ensuring that laws that are legislated
are for the collective good and development of the community so that members of the legislative
body do not abuse the powers bestowed upon them for their self-interests or economic advantages.
This doctrine is also known as the “fraud on the constitution,” because when the legislatures
validate an impugned law that is not covered by the subject matter power of the legislatures to enact
such a law, which is granted to them by the provisions of the constitution in article 246, it is
substantially evident that such laws are clearly in violation of the constitution ad such ratified laws
may be declared invalid. In India, the judiciary was given the authority to use this concept in
determining the legislative competence of the Union and state legislatures. In the Constituent
Assembly discussion, Jus Alladi Krishnaswami Ayyar5 stated the idea of colourable law as follows:
“It is an accepted principle of Constitutional Law that when a Legislature, be it the Parliament at the
Centre or a Provincial Legislature, is invested with a power to pass a law regarding a particular
subject matter under the provisions of the Constitution, it is not for the Court to sit in judgment over
the Act of the Legislature…Of course, if the legislature is a colourable device, a contrivance to
outstep the limits of the legislative power or to use the language of private law, is a fraudulent
exercise of the power, the Court may pronounce the legislation to be invalid or ultra vires”
LIMITATION OF THE DOCTRINE. 1. The doctrine of the colourable legislation does not apply to
subordinate or delegated legislation. If the powers of the legislature have been assigned, and any
such bill has been approved by the delegated legislature, it is not subject to the colourable
legislation concept. 2. The doctrine of the colourable legislation is based on the competence of the
capacity of the legislation to formulate a statute, it does take into consideration the motive behind
ratifying any such legislation. The goal might be malicious or have legitimate motives. The motive
for legislating the law is irrelevant. However, the theory focuses only on the legislature's capacity to
approve a certain bill. 3. If the impugned law is within the competence and ability of the legislature
to ratify such laws, then those laws are not subject to the idea of colourable legislation. If they have
the authority to establish laws, they also have the authority to implement those laws throughout all
individuals who are subject to them. 4. The doctrine of colourable legislation would be meaningless
if the constitution did not limit the powers of the legislature when legislating the law. As the entire
argument is founded on the authority of law, “what legislation prohibits explicitly, they cannot do
implicitly.” If the legislature is granted less authority and there are no constraints imposed on them,
the theory will not be relevant. 5. The Legislature's violation of constitutional power can be
obvious, visible, or actual, but it can also be veiled, disguised, or indirect, and the phrase
"Colourable Legislation" only refers to the latter. If the legislatures while ratifying any law go
beyond their given jurisdiction and exceed their given powers by the constitution, they either
camouflage such laws to be within their constitutional powers or guise it to appears within their
given limits, thus violating the provision of the constitution. Hence the doctrine of colourable
legislation only applies to those laws, which are enacted by legislation beyond their constitutional
powers.
