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Know about Doctrine of Severability

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Introduction

This severability doctrine is also known as the separability doctrine. The phrase “to the extent of the inconsistency or contravention” makes it clear that when some of the provisions of a statute become unconstitutional due to inconsistency with fundamental rights, the courts will treat only the repugnant provision of the law in question as void, not the entire statute.

The doctrine of severability states that when a certain section of legislation offends or violates a constitutional restriction, but that provision is severable from the remainder of the statute, the Court will declare only that offending element unconstitutional, rather than the entire statute.

The doctrine of severability states that if good and bad provisions are joined together by the words “and” or “or,”. And the enforcement of the good provision is not made contingent on the enforcement of the bad one. It means that the good provision can be enforced even if the bad one cannot or did not exist. The two provisions are severable, and the good one will be upheld as valid and given effect.

On the other hand, if there is one provision that is capable of being used for a legal purpose as well as for an illegal one, it is invalid and cannot be allowed to be used even for legal purposes. According to this concept, it is not the entire act that is ruled unlawful for being conflicting with Part three of the constitution that is granted to Indian people. Only the portions that are contradictory are infringing on basic rights. However, only the component that violates basic rights may be separated from the part that does not isolate them.

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Features of the Doctrine

Applicability- Article 13(1) applies to any such laws that appear to conflict with the Fundamental Right. It prohibits legislatures from enacting laws that violate people’s fundamental rights. It empowers High Courts and the Supreme Court to examine any Statute that they believe violates Fundamental Rights.

Nature of the disputed provision- The contested provision must be proven to be inconsistent with the Fundamental Right to be declared invalid. Unless and until this is demonstrated, the concept will be inapplicable.

Severability- If the disputed provision is found to be incompatible with the Fundamental Rights, the entire Statute will not be deemed null and invalid. The Court will only unenforced that one clause, leaving the rest of the Statute intact and enforced.

The burden of Proof- The individual who brings the issue to the Court and argues that the stated Statute violates the Fundamental Right must establish it using the logic outlined in the case of Chiranjit Lal Chowdhury v. Union of India & Ors. That his Fundamental Rights have been violated. He can also show that he is in immediate danger as a result of any new statute or law that goes into effect.

Case Laws

A K Gopalan v. State of Madras, 1950

In this case, the challenged statute was the Prevention Detention Act, 1950, in light of Articles 19 and 21 of the Indian Constitution. The Supreme Court ruled that the whole Statute would not be knocked down. But that just the unlawful clause would be declared void. In conclusion, Section 14 of the Act was severed and declared void, while the remaining parts of the Statute remained intact.

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Minerva Mills v. Union of India, 1980

In this instance, too, the whole Statute was upheld. Only the contested parts that were found to be in conflict with the Fundamental Rights were declared null and invalid.

Kihoto Hollohan v. Zachillu, 1992 

Paragraph 7 of the Tenth Schedule was initially added by the 52nd Amendment Act of 1985. It was ruled illegal in this instance because it breached the stipulations of Article 368. (2). However, the entire section was not deemed unlawful. So, with the exception of paragraph 7, the whole of the Tenth Schedule was preserved by the Constitution.

Conclusion

The Doctrine of Severability is a theory that originated in England, evolved in numerous international decisions, and was acknowledged in India as part of Article 13 of the Indian Constitution. It has been proven that it protects all citizens from having their Fundamental Rights infringed upon. The doctrine is applicable in both pre- and post-constitutional laws. It shields the entire legislation from the consequences of any defective provisions. If any provision of legislation violates a fundamental right and its presence has no cardinal or significant effect on the functioning of the Statute, then the Court may declare that provision to be defective and void, while the rest of the Statute remains in effect.

Edited by Megha Jain

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