• When a part of the statute is declared unconstitutional then a question arises whether the whole of the statute is to be declared void or only that part which is unconstitutional should be declared as such.
• To resolve this problem, the Supreme Court has devised the doctrine of severability or separability on the basis of language used in article 13.
• Article 13 of the Constitution uses the words “to the extent of such inconsistency be void” which means that when some provision of the law is held to be unconstitutional then only the repugnant provisions of the law in question shall be treated by courts as void and not the whole statute.
• This doctrine means that if an offending provision can be separated from that which is constitutional then only that part which is offending is to be declared as void and not the entire statute.
• In A.K. Gopalan v. State of Madras, AIR 1950 SC 27:1950 SCJ 174] the Supreme Court declared Section 14 of the Preventive Detention Act, 1950, as ultra vires and observed: ‘The impugned Act minus this section can remain unaffected. The omission of the section will not change the nature or the structure of the subject of the legislation.
• Therefore, the decision that Section 14 is ultra vires does not affect the validity of the rest of the Act.
• Similarly, in State of Bombay v. Balsara, a case under Bombay Prohibition Act, 1949, it was observed that the provisions which have been declared as void do not affect the entire statute, therefore, there is no necessity for declaring the statute as invalid.”
• The above general rule is, however, subject to one exception. If the valid portion is so closely mixed up with invalid portion that it cannot be separated without leaving an incomplete or more or less mingled remainder, then the courts will hold the entire Act, void.
• The primary lest is whether what remains is so inextricably mixed with the part declared invalid that what remains cannot survive independently.
• The Supreme Court observed in Romesh Thappar State of Madras [AIR 1950 SC 124; that: ‘Where a law purports to authorise the imposition of restrictions on a Fundamental Right in language wide enough to cover restrictions, both within and without the limits provided by the Constitution and where it is not possible to separate the two, the whole law is to be struck down. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly void.”
• The doctrine of severability was elaborately considered in R.M.D.C. v. Union of India, AIR 1957 SC 628.
• In that case, Section 2(d) of the Prize Competition Act, which was broad enough to include competitions of a gambling nature as well as competitions involving skill, was involved. The Supreme Court held that the provisions of the Act were severable and struck down those provisions which related to competition involving skill.
• The Court in R.M.D.C. case held that where after removing the invalid provision what remains constitutes a complete Code there is no necessity to declare the whole Act invalid.
• In such cases, whether the valid parts of a statute are separable from the invalid, the intention of the Legislature is the determining factor.
• The test to be applied is whether the Legislature would have enacted the valid part if it had known that the rest of the statute was invalid. But if what remains on the statute book cannot be enforced without making alteration the whole Act should be declared as void.
• Severability is the question of substance and not of form. In determining the intention of the Legislature it is legitimate to take into account the history of the legislation and the object as well as the title and Preamble.
• In Kihota Hollohan v. Zachithu, [ AIR 1993 SC 412.]. In this case Para 7 of the Tenth Schedule provided that the Speakers decision regarding the disqualification shall be final no court could examine its validity. It has been held that Section 10 of the Tenth Schedule minus para 7 remains valid and constitutional. Para 7 which has been declared unconstitutional is severable from the main provisions of the Tenth Schedule. The remaining provisions of the Tenth Schedule stand independent of Para 7 and are complete in themselves and workable.