Explain the rule of severability with reference to clauses (1) and (2) of Article 13 of the Constitution. Eight sections of the Bombay Prohibition Act, 1949 were declared ultra vires on the ground that they infringed the Fundamental Rights of citizens. Can the rest of the Act survive?

Question: Explain the rule of severability with reference to clauses (1) and (2) of Article 13 of the Constitution. Eight sections of the Bombay Prohibition Act, 1949 were declared ultra vires on the ground that they infringed the Fundamental Rights of citizens. Can the rest of the Act survive? [UPJS 2012]

Find the answer to the mains question only on Legal Bites.[Explain the rule of severability with reference to clauses (1) and (2) of Article 13 of the Constitution. Eight sections of the Bombay Prohibition Act, 1949 were declared ultra vires on the ground that they infringed the Fundamental Rights of citizens. Can the rest of the Act survive? [UPJS 2012]

Answer

The fundamental rights are a set of inherent rights which guarantee to every citizen of this country life of dignified existence and holistic all-round development. Any law that infringes upon these rights is liable to be struck down by the courts.

The doctrine of severability 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, then only that offending provision will be declared void by the courts and not the entire statute.

The doctrine derives its applicability from Article 13(1) of the Constitution which says that the laws which are inconsistent with the provisions of fundamental rights guaranteed by the constitution shall to the extent of that inconsistency be considered void. The clause specifically calls for pre-constitutional laws which are not consistent with the Fundamental Rights will be struck off.

Further, in view of Article 13(2), the fundamental rights constitute express limitations upon the legislative power of a legislature making a law after the commencement of the Constitution and no distinction can be drawn between a post-Constitution law which is ultra-vires that is beyond the legislative competence of the legislature and law which contravenes a fundamental right. It is that a post-Constitutional law that violates a fundamental right is void ab initio and no subsequent amendment of the Constitution can revive such still-born law unless such amendment is retrospective.

The question however arises as to what happens when only a portion of the impugned law is violative of fundamental rights, and it is in instances like these that the doctrine of severability is invoked. In this respect doctrine of severability is applied in cases where the violative and non-violative provisions can be separated in a way that the latter can exist without the former, and then the non-violative provision will be upheld as valid and enforceable.

This was observed by the Supreme Court in the State of Bombay v. FN Balsara case and it was held that the violative provisions of the Bombay Prohibition Act, 1949, do not affect the validity of the entire Act and thus there was no need to invalidate the statute altogether.

The applicability of the doctrine of severability was discussed at length in the case of R.M.D.C v. the State of Bombay case (1957 SCR 930), 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, and 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.

Therefore, the doctrine opens up the way for the applicability of judicial review where the courts through judicial review can invalidate those laws which infringe upon the fundamental rights of individuals. So, as mentioned, if eight sections of the Bombay Prohibition Act, 1949 were declared ultra vires on the ground that they infringed the Fundamental Rights of citizens, the rest of the sections if severable from the violative provisions will survive, without being struck off.

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