Doctrine of severability provides that if an enactment cannot be saved by

construing it consistent with its constitutionality, it may be seen whether it

can be partly saved[1].

R.M.D. Chamarbaugwalla v. The Union of India (UOI)[2] is considered to be

one of the most important cases on the Doctrine of Severability. In this case,
the court observed that:

The doctrine of severability rests, as will presently be shown, on a presumed

intention of the legislature that if a part of a statute turns out to be void, that
should not affect the validity of the rest of it, and that that intention is to be
ascertained from the terms of the statute. It is the true nature of the subjectmatter of the legislation that is the determining factor, and while a
classification made in the statute might go far to support a conclusion in
favour of severability, the absence of it does not necessarily preclude it.

The court further said that:

When a statute is in part void, it will be enforced as regards the rest, if that
is severable from what is invalid.

In the above-mentioned case, it was also said that:

Another significant canon of determination of constitutionality is that the

Courts would be reluctant to declare a law invalid or ultra vires on account of
unconstitutionality. The Courts would accept an interpretation, which would
be in favour of constitutionality rather than the one which would render the
law unconstitutional.

The court can resort to reading down a law in order to save it from being
rendered unconstitutional. But while doing so, it cannot change the essence
of the law and create a new law which in its opinion is more desirable.

Following explanations are also relevant for the purpose of understanding the
Doctrine of Severability and its application in complex legal situations.

1. Cooley's Constitutional Limitations[3]- A. If the valid and invalid provisions

are so inextricably mixed up that they cannot be separated from one another,
then the invalidity of a portion must result in the invalidity of the Act in its
entirety.

B. On the other hand, if they are so distinct and separate that after striking
out what is invalid, what remains is in itself a complete code independent of
the rest, then it will be upheld notwithstanding that the rest has become
unenforceable.

2. Crawford on Statutory Construction[4]- Even when the provisions which are

valid are distinct and separate from those which are invalid, if they all form
part of a single scheme which is intended to be operative as a whole, then
also the invalidity of a part will result in the failure of the whole.

Applying the afore-stated principles and reasoning in the case of Suresh

Kumar Koushal and another v. Naz Foundation and Others[5], the court
observed that while the High Court and the Supreme Court are empowered to
review the constitutionality of Section 377 IPC and strike it down to the extent
of its inconsistency with the Constitution, self-restraint must be exercised and
the analysis must be guided by the presumption of constitutionality.

Hence, in the Naz Foundation Case, the court finally held that unless a clear
constitutional violation is proved, the Court is not empowered to strike down
a law merely by virtue of its falling into disuse or the perception of the society
having changed as regards the legitimacy of its purpose and its need.

There are many important cases that have discussed about the Doctrine of
Severability. Some of them are:

1. In the case of Kihoto Hollohan vs Zachillhu And Others[6], it was said that

the doctrine of severability envisages that if it is possible to construe a

statute so that its validity can be sustained against a constitutional attack it
should be so construed and that when part of a statute is valid and part is
void, the valid part must be separated from the invalid part.

2. Reading Down In the case of D.S. Nakara & Others v. Union of India[7],
the court said that whenever a classification is held to be impermissible and
the measure can be retained by removing the unconstitutional portion of
classification or by striking down words of limitation, the resultant effect may
be of enlarging the class. In such a situation, the Court can strike down the
words of limitation in an enactment. That is what is called reading down the
measure.

3. The principles of severability was also discussed in the case of A. K.

Gopalan v. State of Madras[8], wherein the Court observed that what we have
to see is, whether the omission of the impugned portions of the Act will
change the nature or the structure or the object of the legislation.

Previous: Doctrine of Eclipse and the Constitution of India

Previous: Doctrine of Repugnancy and the Constitution of India
[1] State Of U.P. & Ors vs Jai Prakash Associates Ltd., SLP (C) No. 11305 of
2013.
[2] AIR 1957 SC 628.
[3] Vol. 1 at pp. 360-361; Crawford on Statutory Construction, pp. 217-218.
[4] pp. 218-219.
[5] Civil Appeal No. 10972 OF 2013.
[6] 1992 SCR (1) 686.
[7] AIR 1983 SC 130.
[8] AIR 1950 SC 27.
DOCTRINE OF SEVERABILITY

Article 13 of the Constitution of India provides for Doctrine of severability

which states thatAll laws in force in India before the commencement of Constitution shall be
void in so far they are inconsistent with the provisions of the Constitution.

The State shall not make any law which takes away/ shortens the rights
conferred in Part III of the Constitution. (ie. Fundamental Rights)
Any law made in contravention of the provisions of the Constitution shall be
void and invalid.
The invalid part shall be severed and declared invalid if it is really severable.
(That is, if the part which is not severed can meaningfully exist without the
severed part.)
Sometimes the valid and invalid parts of the Act are so mixed up that they
cannot be separated from each other. In such cases, the entire Act will be
invalid.

DOCTRINE OF ECLIPSE
All laws in force in India before the commencement of the Constitution shall
be void in so far they are inconsistent with the provisions of the Constitution.

Any law existing before the commencement of the Constitution and

inconsistent with the provision of Constitution becomes inoperative on
commencement of Constitution.

But the law does not become dead.

list][*]It is overshadowed by Fundamental Rights.[/list]

The law remains a valid law in order to determine any question of law
incurred before commencement of the Constitution.

An existing law only becomes eclipsed to the extend it comes under the

shadow of the FR.

DOCTRINE OF WAIVER

Waiver means a document that records the waiving of a legal right.

Article 14 provides that the FR cannot be waived by any person.
The Supreme Court shall see that the FR are enforced evenif one might have
waived it.
In the case of Basheshar Nath Vs CIT, it was held that the FR cannot be
waived.